Consolidated Concepts, Inc., Camden Development, Inc., Noconi Construction Corporation

Plain-English summary

OSHA inspected a three-story apartment complex under construction in Corpus
Christi, Texas, and issued serious citations to three companies at the site:
Consolidated Concepts (CCI), Camden Development (the general contractor), and
Noconi Construction. All three contested, the cases were consolidated, and they
were tried under the Commission's simplified E-Z Trial procedure before Judge
Stanley M. Schwartz. At the hearing the Secretary withdrew the entire citation
against Camden and several items against the other two, and the judge denied
the respondents' motions to dismiss and to suppress the inspection evidence
(the cited conditions were plainly visible from a public parking lot, so the
"open fields" rule applied).

On the merits, the judge vacated the remaining fall-protection and forklift
items against CCI, finding CCI was not the employer of the exposed roofing
workers: CCI had subcontracted the roofing out, and neither its contract
language nor its safety oversight made it liable for the subcontractor's
violations. The one item that stuck was against Noconi, whose employee worked
from a pump jack scaffold without guardrails about 18 feet up. Noconi did not
dispute the violation, so that item was affirmed as serious and the proposed
$1,500 penalty was assessed.

Decision snapshot

• Cited standard(s): Fall protection and scaffold standards in 29 C.F.R. Part 1926, including § 1926.501(b)(10), § 1926.602(c)(1)(viii)(A), and § 1926.451(y)(11) and (a)(4)
• Outcome: Camden citation withdrawn; all CCI items vacated; Noconi item 1 vacated; Noconi item 2 (pump jack scaffold) affirmed serious, $1,500
• Key point: A contractor that subs out the work and is not the exposed workers' employer is not liable just because its contract assigns safety responsibility, absent proof it controlled or knew of the hazard.

Full text (OSHRC public release)

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United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

                                                                                 Phone:(202)606-5400
                                                                                  Fax:(202)606-5050

SECRETARY OF LABOR
Complainant, OSHRC DOCKET
V. \ NOS. 954529
954530
CONSOLIDATED CONCEPTS, INC. 954531
CAMDEN DEVELOPMENT, INC., AND
NOCONI CONSTRUCTION CORPORATION,
Respondent.

                           NOTICE OF DOCKETING
                    OF ADMINISTRATIVE LAW JUDGE’S DECISION
   The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on April 11, 1996. The decision of the Judge

• will become a final order of the Commission on May 13, 1996 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 etition should be received by the Executive Secretary on or before
  May 1, 191 6 in order to permit sufficient time for its review. See
  Commission Rule 91, 29 C.F.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. DOf
  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
  havmg questions about review rights may contact the Commission’s Executive
  Secretary or call (202) 606-5400.
  THE COMMISSION

Date: April 11, 1996 Ray H. Darling, Jr.
Executive Secretary
DOCKET NOS. 95-1529 & 95-1530 & 95-1531

NOTICE IS GIVEN TO THE FOLLOWING:

James E. White, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
525 Griffin Square Blhg.,%uite 501
Griffin & Youn Streets
Dallas, TX 752 f 2

W.C. Blayney
21819 Sweet Bay Road
Humble, TX 77339 4123

Stanley M. Schwartz
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791

00122225865 : 06
 UNITED STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEVIJCOMMISSION
ROOM 7811, FEDERAL BUILDING
1100 COMMERCE STREET
DALLAS, TEXAS 75242-0791

PHONE: FAX:
COM (214) 767-5271 COM (214) 767-0350
f=I-S
(2141767-5271 FE (214) 767-3350

SECRETARY OF LABOR, ..

                 Complainant,                ..

                                             .
       V.                                    .

CONSOLIDATED CONCEPTS, INC., : OSHRC DOCKET NOS. 95-1529
CAMDEN’DEVELOPMENT, INC., AND : 95-1530
NOCONI CONSTRUCTION .. 95453 1
CORPORATION, ..

                 Respondents.

APPEARANCES:

       Daphne A. Brechun, Esquire                    William C. Blayney
       Dallas, Texas                                 Humble, Texas
       For the Complainant.                          For the Respondents.

Before: Administrative Law Judge Stanley M. Schwartz

                                    DECISION AND ORDER

       This is a proceeding before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970,29 U.S.C.
5 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) inspected
a three-story apartment complex construction site in Corpus Christi, Texas on July 13, 1995; as a
result, Respondents Consolidated Concepts (“CCP’), Camden Development (“Camden”) and Noconi
Construction (‘Woconi”) were each issued a serious citation. All three Respondents contested the
citations, and all three cases were designated as E-Z Trial cases pursuant to the Commission’s new
E-Z Trial Rule 203(a). The cases were consolidated for hearing purposes, and the hearing in this
matter was held on January 11, 1996. At the hearing, the Secretary withdrew alI four items of the
citation issued to Camden. The Secretary also withdrew item 2 of the citation issued to CCI, leaving
items 1 and 3 for resolution, and item 1 of the citation issued to Noconi, leaving item 2 for resolution.
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                             Respondents’ Motion to Dismiss
   This case was originally set for hearing on December 19, 1996. In a pre-hearing telephone

conference held December 11, 1995, the Secretary’s counsel and the Respondents’ representative
were advised the hearing might not be held on the scheduled date due to the possible government
shutdown. They were further advised that they should listen to the news and that ifthe government
did shut down no hearing would take place on December 19. The government did in fact shut down
on December 18, but Respondents’ representative nonetheless appeared at the hearing location the-
next day with two witnesses. Respondents’ representative then filed a motion to dismiss due to the
Secretary’s and the undersigned’s failure to appear. This motion was renewed at the hearing. (Tr.
80-83). However, as noted at the hearing, the failure to appear under the circumstances of this case
is no basis for dismissal. Respondents’ motion is accordingly denied.
Respondents’ Motion to Sunnress
Respondents contend the inspection was invalid and that the evidence obtained by the OSHA
compliance officer (“CO”) should be suppressed. The basis of this contention is Respondents’ claim
the CO told the superintendent of Camden, the general contractor at the site, that he was there to
gather information and not to conduct an inspection. (Tr. 34-35; 146-52). Camden’s landscaping
director and CCI’s vice president both testified that Camden’s superintendent advised them of
OSHA’s presence and told them not to worry because the CO was only there to gather information
on two subcontractors and that it was not an inspection. (Tr. 95-99; 109; 113). The CO, on the other
hand, testified he was assigned to inspect the work site pursuant to a referral from a Wage and Hour
employee who had been to the site. He further testified he first videotaped the cited conditions from
a public parking lot across the street. He then went to the site and met with Camden’s superintendent
and told him he was not there to inspect his company but the two subcontractors who were the
subject of the referral; he also told the subcontractors’ representatives he was there on a referral
inspection. The CO said Camden’s superintendent at no time requested a warrant or attempted to
stop the inspection. He also said Camden was cited after an accident on the job about a week later;
another CO attempted another inspection but was refused entry, and the CO’s supervisor told him
to go ahead and cite Camden. (Tr. 22-73; 83-94; 125-28).
 3

     Based on the CO’s representation to Camden it would not be cited it is clear that the citation

issued to that company was inappropriate.’ However, the Secretary has properly resolved this issue
by withdrawing the citation. Moreover, it would appear that Camden’s superintendent simply
misunderstood what the CO said about inspecting the site. Finally, there is no evidence that the
representatives of the two subcontractors made any objection to the inspection’ and the record
indicates thev did not. (Tr. 3 1-32). Regardless, Commission precedent is well settled that under the
J \

“open fields” exception to the Fourth Amendment employers have no reasonable expectation of
privacy with respect to activities conducted out of doors which are plainly visible from public
property. See Broshear Conzmcfors,Inc., 16 BNA OSHC 2094,2095 (No. 91-2125, 1994)’ and
0. 9 .1 .
cases cltea tnerem. It IS apparent from the CO’s testimony and C-l and C-4, photos made from the
T. l

videotape he took from across the street, that the conditions cited in this case were plainly visible
from public property. Respondents’ motion to suppress is therefore denied.
The CC1 Citation
Items 1 and 3 of the citation issued to CC1 allege that two employees installing flashing on
the edge of a roof were exposed to a fall hazard of approximately 30 feet. Item 1 alleges a violation
of29 C.F.R 1926.5Ol(b)(lO) in that the employee was working at the edge of the roof without fall
protection’ while item 3 alleges a violation of 29 C.F.R. 1926.602(c)( l)(viii)(A) in that the employee
was standing on an unsecured pallet, rather than a safety platiorm, on a forklifi. The CO’s testimony
and C-4 clearly establish the violative conditions. (Tr. 57-73). CC1 does not deny that the violations
occurred but contends OSHA cited the wrong employer. The CO testified he spoke to the individual
operating the forklift, who identified himself as a foreman of CC1 and the two workers installing the
flashing as his employees. The CO also indicated one of the workers identified himself as a CC1
employee. (Tr. 3 1-32; 62-66; 70-72). However, CCI’s vice president testified extensively about
CCI’s role in the subject job. He testified that CCI, a construction contracting company, contracted
with Camden to oversee the roofing job and make sure it was done properly. CC1 then subbed out
the job to another company. The roofing subcontractor provided its own employees and equipment
for the job, except for fall protection’ which CC1 provided, and CCI, whose employees consisted of

     ‘Absent such representation, the citation would have been proper. The cited conditions, described below, were

obvious, and Commission precedent is well settled that general contractors are responsible for overall safety at job sites.
 4

a president, a vice president, an accountant and an office worker, had no employees of its own on the
job. CCI’s president or vice president visited the site every other week to check on the job and pay
its subcontractor. While safety was discussed during these visits and Camden held weekly safety
meetings at the site; the subcontractor was responsible for the supervision and safety of its own
employees. CCI’s vice president said this particular roofing company was doing another job for CC1
at the same time as the subject job and identified R-1 as CCI’s contract with the company. He also
said the company had been subbing for CC1 for about two years and had worked for no one else
during that time to his knowledge. He noted, however, that CC1 bid out all of its jobs, that it was. .
presently using three or four different subcontractors, and that the subject roofing company was not .
always awarded CCI’s jobs just as CC1 was not always awarded Camden’s jobs. (Tr. 99-140).
The Secretary objected at the hearing to R-l and the testimony of CCI’s vice president on the
basis that it constituted an afEirmative defense that Respondent was required to disclose prior to the
hearing. The evidence was admitted due to my conclusion that Respondent was merely rebutting the
Secretary’s prima facie showing of employee exposure, but the record was left open at the Secretary’s
request for CC1 to provide a copy of its contract with Camden. CC1 did so, and the Secretary has
now filed a post-hearing letter. Based on this letter the Secretary no longer contends the employees
at the site were those of CCI, although he still objects to the admission of the foregoing evidence;
rather, he now urges that because of OSHA’s position with respect to multi-employer work sites and
language in its contract with Camden CC1 should be held responsible for the subject violations.
Specifically, the Secretary notes that section C.6.a. of the OSHA Field Inspection Reference Manual
(“FIRM”) states that an employer who is responsible by contract or by actual practice for safety and
health conditions on a work site shall be cited whether or not its own employees are exposed. The
Secretary further notes that sections 5.5 and 14.1 of the contract with Camden state, respectively, that
CC1 shall comply with the Act and rules and regulations thereunder and that assignment or transfer
will not release CC1 from its responsibility to perform its obligations under the contact.
Based on the record it is clear CC1 was not the employer of the workers at the site. In regard
to the Secretary’s alternative contention’ I have reviewed both R-1 and CCI’s contract with Camden.
I have also considered the language of the OSHA FIRM as set forth in the Secretary’s letter. The
contract with Camden does indicate that CC1 was responsible for safety on the roofing job. However,
 5

R-l, CCI’s contract with the roofer, contains essentially the same language as to that company.
Further, Exhibit A to R-l specifically states that “[a]ll roofers must wear safety harnesses and be tied
off to roof at all times” and that “[slubcontractor will be fined $50.00 per violation per man.” While
this language and the biweekly safety discussions noted above indicate an attempt to ensure the roofer
complied with fall protection requirements neither these measures nor either of the contracts, in my
view, provides a basis for holding CC1 liable for the subject violations. This finding is supported by
the CO’s own testimony that had he known the actual identity of the roofer that company would have
been cited. (Tr. 124). It is also supported by the fact that there is no evidence CC1 had knowledge
that its subcontractor was not complying with fd protection requirements. In citing from the OSHA
FIRM, the Secretary seems to infer that CC1 was responsible for safety at the site just as a general
contractor would be. As noted above, but for the circumstances in this case the citation issued to
Camden, the general contractor, would have been appropriate. Regardless, under the facts of this
case it is my conclusion the Secretary has not met his burden of proving CC1 was responsible for the
subject violations. In addition, even if CC1 had given notice of its intent to present evidence in this
regard prior to the hearing it is d.&ult to fathom what more the Secretary could have presented that
is not now part of the record. The citation items are accordingly vacated.
The Noconi Citation
Item 2 of the citation issued to Noconi alleges an employee was working from a pump jack
scaffold with no guardrails, exposing the employee to a fall hazard of 18 feet, in violation of 29
C.F.R. 1926.451(y)(ll) and (a)(4). The CO’s testimony and C-l clearly establish the violative
condition. (Tr. 36-46). Respondent disputes neither the violation nor that it was the responsible
employer, relying instead on its contention that the inspection was invalid. (Tr. 146-49). This
contention was addressed and dismissed above, and this citation item is accordingly aBirmed as a
serious violation.‘ The Secretary proposed a penalty of $1,500.00 for this item. This proposed
penalty took into account the gravity of the violation as well as the employer’s size, history and good
faith. (Tr. 74-76). After giving due consideration to these factors, I conclude that the assessment
of the proposed penalty is appropriate.
 6

                                       Conclusions of Law
    1. Respondents Consolidated Concepts, Inc., Camden Development, Inc., and Noconi

Construction Corporation are engaged in businesses affecting commerce and have employees within
the meaning of section 3(5) of the Act. The Commission has jurisdiction of the parties and of the
subject matter of the proceeding.
2 Respondent Consolidated Concepts, Inc., was not in violation of 29 C .F .R .
$5 1926.5Ol(b)(lO), 1926.503(a)(l) and 1926.602(c)(l)(viii)(A).
3. Respondent Camden Development, Inc., was not in violation of 29 C.F.R.
@ 1926.451(y)(3), 192641(y)(5), 1926451(y)(ll), 1926.451(a)(4), 1926.5Ol(b)(lO) and
1926.602(c)( l)(viii)(A).
4. Respondent Noconi Construction Corporation was not in violation of 29 C.F.R.

1926.451(y)(3) and 1926.451(y)(5).

    5. Respondent Noconi Construction Corporation was in serious violation of 29 C.F.R.

$5 1926.451(y)(ll) and 1926.451(a)(4).
Order
On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Items 1-3 of the citation issued to Consolidated Concepts, Inc., are VACATED.
2. Items 1-4 of the citation issued to Camden Development, Inc., are VACATED.
3. Item 1 of the citation issued to Noconi Construction Corporation is VACATED.
4. Item 2 of the citation issued to Noconi Construction Corporation is AFFIRMED as a
serious violation, and a penalty of $1,500.00 is assessed.

Date: April 1, 1996
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