Classic Homes Div. of Elite, Inc. (ALJ decision, January 17, 1995)

Plain-English summary

Classic Homes was the general contractor for a house under construction in Colorado Springs. A roofing subcontractor's employees worked on a 17-foot-high roof without the required catch platform and near second-floor wall openings without adequate guardrails. Classic Homes argued that it did not create the conditions and had no employees exposed, but the judge held that a general contractor with supervisory authority is responsible for hazards it could reasonably prevent or correct for any workers on the project. The company's project manager inspected jobsites, could require correction, and could terminate subcontractors after repeated violations. The judge affirmed both items but reduced the proposed penalties from $2,500 each to $1,000 and $600 because Classic Homes had a subcontractor safety program, employed safety superintendents, and had no employees exposed.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(u)(3) and 1926.500(c)(1).
• Outcome: Modified. Both items were affirmed, and the combined penalties were reduced from $5,000 to $1,600.
• Key point: A general contractor can be liable for a subcontractor's hazards when it has the supervisory authority and practical ability to prevent or abate them, even if none of its own employees are exposed.

Full text (OSHRC public release)

UNfTED STATES Of AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 2003-l 9

SECRETARY OF LABOR
Complainant,
OSHRC DOCKET
V. NO. 93-1947

CLASSIC HOMES DIV. OF ELITE, INC.,
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE IAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on December 16, 1994. The decision of the Judge will become a final order of the Commission on January 17, 1995 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such petition should be received b the Executive Secretary on or before January !, 1995 in order to emit sUfJ cient time for its review. See ConrmlSslon Rule 91, 29 C. I! .R. 2200.91. All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party having questions about review nghts may contact the Commission’s Executive Secretary or call (202) 606-5400.

Date: December 16, 1994
DOCKET NO. 93-1947
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Tedrick HOI+, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
1210 City Center Squke
1100 Main Street
Kansas City, MO 64105

Pe Tilton, Safety Administrator
He!Y th Safety Management
5585 Erindale Drive #207
Colorado Springs, CO 80918

Sidney J. Goldstein
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO f 0204 3584

00109541722:08
 UNfTED STATES OF AMREA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1244 N. Speer Boulevard
Room 250
Denver, Colorado 80104-3582

SECRETARY OF LABOR,
1
Complainant, ’
I
I
v. I OSHIRCDOCKET
I NO. 934947
CLASSICHOMES,
I
DIV. OF ELJTE, INC.,
I
Respondent.
I

APPEARANCES: .

Dewy P. Sloan, Jr, Esq., Offi= of the Solicitor, U.S. Department of Labor, Kansas city, ndiswti

Peggy TIlton, Safety Adminktrator, HealtMafety Management, Colorado Springs, Colorado.

Before: Administrative Law Judge Sidney J. Goldstein

DECISION AND ORDER

This is an action by the secretary of Labor to affirm a citation issued to the Respondent by the Occupational safety and Health Administration for the alleged viola- tion of two safety regulations relating to the construction industry. The matter arose after a compliance officer for the Administration inspected one of Respondent’s worksites, concluded that the company was in violation of two safety regulations, and recommended that the citation be issued. The Respondent disagreed with the citation and filed a notice of contest. After a complaint and answer were filed with this Commis- sion, a hearing was held in Denver, Colorado. Item 1 of the citation charged that:
Catch platform(s) were not installed as required below the working area of roof(s) more than 16 feet above the ground:
a) As controlling employer, employees were not protected from falling when working on roof 17’ high at 15285 Jessie Drive, Colorado Springs, Co.

in violation of the regulation found at 29 CFR #1926.451(u)(3) which prwides in part:

A catch platform shall be installed below the working m of roob more than 16 feet from the ground to eaves with a slope greater than 4 inches in 12 inches without a parapet. In width, the platform &all extend 2 feet beyond the protection of the eaves and shrill be provided with a guardrail, n&ail, and toeboard

Item 2 of the citation alleged that:

Wall opening(s) from which there was a drop of more than 4 feet, and the bottom(s) of the opening(s) were less than 3 feet above the working sur- f&(s) were not guarded by rail(s) in a manner that would effectively
reduce the danger of falling: 3
a) As controlling employer, employees were not protected by adequate guardrails when working near wail openings at the following locations on the secund floor of the resident under construction at 15285 Jessie Drive, Colorado Springs, Co:

1. Northwest area, second floor,
3
2 Southwest comer, second floor.

3. Southeast comer, second floor.

4. Northeast corner, second floor.

in violation of the regulation at 29 CFR ~1926.500@)(1)which reads in part as follows: i
(c) Gudiiag of wall opkp. (1) .Wall openings, from w&h there is a drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface, shall be guarded * * *.

2 ;.
 The material facts are not in substantial dispute and may be briefly stated. At the time of the inspection the Respondent was engaged in the construction of a home at 15285 Jesse Drive & Colorado Springs, CoIorado, and subcontracted ra&.ng work to Robert Beck & Son. The parties also agreed that employeesof the subcontractorwere not protected from falling when workingon the rtif 17 feet high in violationof the regulationfound at 29 CFR #1926.451(u)@), and that catch platformswere not installed as required below the working area of the foofs more than 16 feet aboveground.
With respect to item 2, the parties also agreed that an employ= of Robert Beck was exposed to wall openings from which tire was a drop of more’than4 feet, and the bottom of the opening was less than 3 feet abwe the working surfaces not guarded by rails in a manner that would effectively reduce the danger of Mling.
At the hearing the compliance officer testified that he observed the alleged in&ac- tions of the regulations and took photographs of the house under constructior~ Robert Beck, the subcontractor, confirmed that he was allowed to work without fall protection, and that one of his employees was applying sheeting on the exterior of a window without being tied off and unprotected by gua.rdn& A project manager for the Respondent testified that he was responsible for about twenty homes; that he inspected the various jobsites assigned to him; and that he h&d authorityto correct haza& and ensure abatement of any safety violations. If be saw a worker acting unsafely, he would caution him and explain the dangers. If there were two or more safety violations, the subcontractor was subject to tetiation. He also had authority to make sure there wan compliance with safety regulations.
On these factors, the Complainant’spositionis that the Respondentwas in viola- tion of the two regulations despitethe fact that its employeeswere not workingat the jobsite. TheIRespondent disclaims responsibility for the safety infractions on the grounds that the workers were not employees of the Respondent; that the subcontractor was the controlling employer; and that the violations were created by the subcontractor whose workers were the only individuals exposed to any danger.

3
 The question whether a contractor may be helki in violation of a safety regulation although it had no employees at the jobsite has been before the Commission in the past. On this point the Commission rejected the idea that liability under the Occupational safety and Health Act of 1970 should be based solely on the employ&ent relationship. l l

And in the case of Btennan v. Occupational S@iw and HeawI R&&w commtrFsuur (UiuMiiU Cbns~tia Cb~mfibn), 513 F’2d 1032, the aut held
. that an employer% specific duty to coiply with the Secretazy’s standards is in no way limited to situations where a violation of a standard is linked to exposure of his employees to the hazard. It is a duty wer and above his general duty to his uwn emplayees.
General contractors normally~have the responsibility and means to assure that other contractors Will their obligations with respect to employee safety. The Commit sion has stated that it will hold a general contractor r&xxx&e for safety standard violations which it could have reasonably have been expected to prevent or abate by reason of supervisory capacity. The duty of a general contractor is not ii&ted to the protection of its own employees from safety hazards, but it extends to the protection of all employees engaged at the worksite.
While the subcontractor had authority to control its employees, the Respondent also had controlling authority over Beck and Son. Admittedly,the violationswere not created 3y the Responder&&d none of its workers were exposed to the dangers. However, both the Commission and the courts have held that overall responsibility for the safety of all workers on the project is in the general contractor’s province.
Thus, it is concluded that the Respondent was-4in violationof items 1 and 2 of the citation despite the fact that its emplayees were not exposed to the dangers de&iii Therefore, items 1 and 2 of the citation are af6rmed.
There arises the question of penalties. The Administration proposed penalties of
$2,500.00 for each of the alleged violations. Based upon the fact that the Respondent had a program of bhecking subcontractors for adherence to safety regulatioi; that it employed s&&y suhrintendents to check on work habits of its s&contractors; and that none of its employees were exposed to the dangers invohwi, a penalty of $l,OOO.OO
is in

4 order for the violation described in item 1. Further, since employees involved in item 2 were in far less danger than those in item 1, a penalty of $600.00 is proper.
In sum, the two items of citation in issue are af#irmed, with a penalty of $l,OOO.oO for the violation of item 1, and a penalty of $600.00 for the violation of item 2

.

Dated: ME&X 9, 1994