Kulka Construction Management Corp.

Plain-English summary

Kulka Construction Management managed a three-story office-building project without performing construction trade labor itself. The Commission found that Kulka substantially supervised the work because it coordinated contractors, acted as the owner's on-site representative, addressed safety conditions, and could effectively obtain corrections. Part 1926 therefore applied to Kulka. Its superintendent knew that wall openings and an open-sided stairway lacked required guarding and used the affected stairs. The Commission affirmed both violations as repeated and serious because the conditions exposed employees to falls of up to 20 feet and Kulka had prior final citations under the same standards. It assessed penalties of $500 and $300, for a total of $800.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.500(c)(1) and 1926.500(e)(1)(ii)
• Outcome: Both repeated, serious fall-protection violations affirmed with $800 in total penalties.
• Key point: A construction manager that substantially supervises actual construction work is subject to OSHA's construction standards even if it performs no trade labor.

Full text (OSHRC public release)

Docket No. 88-1167

SECRETARY OF LABOR,

Complainant,

v.

KULKA CONSTRUCTION MANAGEMENT CORP.,  

Respondent.

Docket No. 88-1167

DECISION

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners;

BY THE COMMISSION:

This case involves the application of our decision in Simpson , Gumpertz
& Heger, Inc ., No. 89-1300 (Aug. 28, 1992) in which we reaffirmed our earlier
holding in Skidmore , Owings & Merrill , 5 BNA OSHC 1762, 1977-78 CCH
OSHD � 22,101 (No. 2165, 1977) (" SOM "), that employers providing
professional services for construction projects who do not perform actual construction
trade labor, such as architects and engineers, are subject to the construction standards
prescribed in 29 C.F.R. Part 1926 only if they substantially supervise actual construction
labor. The issue before us here is whether the "substantial supervision" test we
originally set forth in SOM and have now restated in SGH is satisfied
with respect to an employer having a contract with the owner of a building under
construction to furnish management services for the project.

Administrative Law Judge David G. Oringer held that Respondent, Kulka Construction
Management Corporation ("Kulka"), did not have "supervisory power or
responsibility" because it could only suggest but not require subcontractors to
correct hazardous conditions. Rather, the judge found tat the "power to supervise and
issue orders was retained by the owner. Accordingly, he concluded that Kulka was not
governed by the construction standards, and he vacated the Secretary's amended citation
alleging Kulka committed two repeated violations of the Occupational Safety and Health Act
of 1970, 29 U.S.C. Sections 651-678 (651-678 ("the Act"). Recognizing however,
that the Commission or appellate court on review could disagree and hold Kulka subject to
the standards in Part 1926, the judge also made findings pertaining to the merits of the
alleged violations. He found that Kulka had failed to comply with the two cited standards,
29 C.F.R. Sections 1926.500 (c) (1), which requires guarding of wall openings, and 29
C.F.R Sections 1926.500 (e)(1)(ii), which requires stair failings, [[1]] and that Kulka's
superintendent, John McKee, was exposed to the resulting hazards. Although the judge
concluded that penalties of $500 and $300 respectively, rather than the penalties of $800
and $640 proposed by the Secretary, would be appropriate if violations were found, he did
not make a determination as to whether they were repeated and serious in nature as
alleged.

As the party aggrieved by the judge's decision, the Secretary filed a petition, for
review under Commission Rule 91(b), 29 C.F.R. Section 2200.91(b), and review was directed
on whether the judge erred in vacating the citation on the ground that Kulka was not
engaged in construction work. No issue was raised in either the direction for review or
subsequent briefing notice regarding the judge's alternative factual findings. Kulka did
not respond to our briefing notice. Briefs were received from the Secretary and from the
American Consulting Engineers Council, The National Society of Professional Engineers and
The American Institute of Architects as amici curiae. The brief of the amici addresses
only the question of the test to be applied in determining whether the construction
standards apply to employers such as Kulka who do not perform physical trade labor; the
amici take no position on whether Kulka is subject to the construction standards on the
facts here. [[2]]

The Secretary contends, and we agree, that the judge erred in finding the construction
standards inapplicable to Kulka. For the reasons that follow, we conclude that Kulka did
exercise substantial supervisory authority over the construction work at the jobsite here.
We therefore reverse that portion of the judge's decision in which the judge held the
cited standards inapplicable to Kulka. Although we further find that the Secretary proved
that Kulka violated the Act as alleged and that the violations were repeated and serious
in nature, we conclude that the judge did not err in determining that if violations were
found, penalties in an amount lower than that proposed by the Secretary would be
appropriate.

I. APPLICABILITY OF THE CONSTRUCTION STANDARDS TO KULKA

A. Background

Kulka was the construction manager for a 3-story building under construction in
Smithtown, New York, having a contract with the building owner, the Eghrari family
("Egghrari"), "to furnish business administration and management
services." There was no general contractor, Eghrari had contracted directly with each
trade subcontractor.[[3]] According to the contract, Kulka would provide
"evaluation," "review," "coordination,"
"analysis," "verification," "assistance," and
"recommendations" in a number of areas, including the budget for the project,
its design, the schedule for work, the availability of  labor, equal employment
opportunity, and a word of subcontracts. In addition, Article 1.1.5.1 of the contract
stated that Kulka, among other things, would "[p]rovide recommendations and
information to the Owner and the Architect regarding the assignment of responsibilities
for safety precautions and programs [and verify] that the requirements and assignment of
responsibilities are included in the proposed Contract Documents." David Ridell,
Kulka's vice president for finance, testified that Kulka would review the safety programs
of" each contractor who is contractually responsible to the building owner for
safety."

Kulka had an on-site representative at the project. John McKee, whose title was project
manager and field superintendent. McKee, who also was responsible for five or six other
projects at the same time, visited the job two or three times a week. Sometimes these
visits would be very cursory, at times nothing more than driving by the worksite. Kulka
had no other employees on the site, except for occasional visits by McKee's supervisor,
Tom Orr, either monthly or on an as-needed basis. McKee would communicate directly with
Eghrari's representative, who also came to the site occasionally. According to McKee,
Kulka was responsible for giving general instruction to the various contractors as to how
the job was to proceed and would coordinate and schedule the work based on information
supplied by the contractors, such as the number of workers each contractor had available
at any given time. McKee gave the following characterization of his duties:

Well, effectively what I did was work at the site on a partial basis effectively as
eyes and cars so to speak of the owner, generally overseeing that the work performed was
in conformance with architectural drawings and making sure the trades were there when they
said they were going to be there.

In some respects it has some similarities [to an architect], but in addition to my
being there the architect also would still be on the job making specific inspections,
testing laboratories [sic], made [sic] specific inspections of steel and concrete. My
function was more of making sure that this mold went in where it was supposed to go and
that generally the quality was up to par, that type of situation.

Specifically with respect to safety matters, McKee stated:

We had no specific authority to tell the contractors exactly what to do. It was more of
an overseeing type of thing. If I personally saw something that was blatantly dangerous I
would tell the contractor that I thought it was dangerous and that he shouldn't do it that
way, but from a strict responsibility standpoint, we would tell the owner of the project
that we felt that there was a dangerous condition which existed and have him handle it
directly with the contractor.

On cross-examination, McKee conceded that he would bring unsafe working conditions to the
attention of the responsible contractors but emphasized that they were not obligated to
comply with his requests, and he opined that enforcement of safety rules was the
responsibility of Eghrari.

Compliance officers Kevin Brennan and Robert Niagee inspected the worksite on April 13,
1988. The only contractor working was the glass or aluminum contractor, although McKee
arrived during the inspection. There were unguarded wall openings on the second and third
floors which were accessible to anyone using the stairs. The same stairs had no railing on
the open side, and employees on the site, including McKee himself, used that stairway

McKee and Orr first noticed that guarding around the wall openings was missing on their
on-site visit a day or two before the inspection. At that time Orr informed the carpentry
contractor that the perimeter guarding needed to be replaced immediately, and the
carpenter agreed. For reasons not disclosed in the record, the guarding was in fact not
replaced by the time of the OSHA inspection, and after the OSHA inspectors left, McKee
informed the owner that there was an OSHA violation and that the owner should have the
guarding installed.[[4]] As to the missing stair railing, Brennan testified that McKee
told him that the work was in the process of being completed, that he would "make
sure" that the stair railing would be put in place, and that he would "direct
the proper person to put them up.

B. Discussion and Analysis

On the facts here, we conclude that Kulka is subject to the construction standards
under the test of SOM and SGH. In addition to Kulka's general
contractual obligation to provide for the institution of safety measures and safety
programs, it is clear that the owner, Eghrari, depended upon Kulka to maintain safe
working conditions at the site.[[5]] McKee himself considered his role to be that of the
"eyes and ears" or Eghrari. In our view, the judge placed undue emphasis on
McKee's testimony that he could not personally enforce any instructions he gave to a
subcontractor. There is no evidence to show that contractors routinely or customarily
would ignore requests from McKee for the correction of safety hazards form which we could
conclude that Kulka could not effectively exercise the authority that Eghrari intended it
to have. As we have noted regarding the specific hazardous conditions at issue here, the
record does not show why the carpentry contractor did not replace the perimeter guarding
after promising to do so. Absent specific evidence on the point. We cannot infer that the
lack of guarding was due to disobedience by the contractor as opposed to some other cause.
Similarly, McKee did not deny having told Brennan that he would ensure that a stair
railing was installed. We conclude that the evidence preponderates in favor of a finding
that Kulka substantially supervised the performance of the construction work.

II. MERITS OF THE ALLEGED VIOLATIONS

A. Facts

The wall openings were located along the stairway landing; as someone used the stairs,
he would approach within 2 to 3 feet of these openings and would be exposed to a fall
distance of 10 feet from the second floor and 20 feet from the third floor. The same
stairs had no railing on the open side, with a possible fall distance, according to
Brennan, of 7 or 8 feet from the top step. Brennan testified that a fall through the wall
openings could cause death and that serious injury could result from a fall from the
stairs to the concrete surface below. Employees on the site, including McKee himself, used
the stairway. McKee, however, testified that the configuration of the stairway minimized
any hazard presented by the absence of the railing. The stairway was a split set of
stairs; halfway up between the two floors there was a small landing where the stairs
turned, and the upper half of the stairs extended above and back over the lower portion.
As a result, McKee felt that the open area between the stairs where an employee might fall
was minimized, and that the possibility of a fall existed only at the lower end of the
stairs, so that the maximum possible fall distance would only be 1 and 1/2 to 2 feet.

B. Discussion and Analysis

In order to prove that an employer has violated a standard, the Secretary must show
that the cited standard applies, that its terms were not complied with, that employees had
access to the violative conditions, and that the employer knew or with reasonable
diligence could have known of the violative conditions. Eg., Walker Towing Corp .,
14 BNA OSHC 2072, 2074, 1991 CCH OSHD �  129,239, p. 39,157 (No. 87- 1359,
19-91).[[6]] For the reasons stated above, the cited standards are applicable to Kulka.
Since no issue was raised with respect to the judge's factual findings regarding the
existence of violative conditions and employee exposure thereto, and Kulka presented no
argument to us, we decline to disturb !hose findings. New England Tel. & Tel Co.,
11 BNA OSHC 1501, 1505 n.6, 1983 CCH OSHD � 126,535, p. 33,839 n.6 (No. 80-6519, 1983);
Commission Rule 92(a), 29 C.F.R. section 2200.92 (a); cf. Dover Elevator Co ., 15
BNA OSHC 1378, 1378 n.2, 1991 CCH OSHD � 29,524. P. 39,846 n.2 (No. 88-2642, 1991)
(Commission declines to decide factual issues addressed by the judge on which it did not
request briefs even when the affected party files a brief on those issues). As to the
issue of employer knowledge, which the judge did not address in his decision, it is
uncontroverted that McKee was aware before the inspection of the unguarded condition of
the wall openings and the lack of stair railing. Since McKee was Kulka's supervisory
employee, his knowledge is imputable to Kulka. Baytown Constr. Co ., 15 BNA OSHC
1705, 1710, 1992 CCH OSHD Paragraph 29,741, p. 40,414 (No. 88- 2912S, 1992)

We now turn to the remaining issue: characterization of the violations. [[7]] The judge
made no finding to resolve the conflict between Brennan's testimony and McKee's testimony
regarding the distance an employee could fall from the open stairway. An examination of
one of the photographs taken by compliance officer Magee, however, shows that the distance
could not have been as little as 1 1/2 to 2 feet, as McKee claimed, and that Vrennan's
figure of 7 to 8 feet is more accurate. In the absence of any argument to the contrary
from Kulka, we find that a preponderance of the evidence establishes that employees were
exposed to the hazard of a fall of up to 8 feet from the unprotected stairs. See Well
Solutions, Inc ., 15 BNA OSHC 1718. 1720 n.2. 1992 CCH OSHD � 29,743, p. 40,418 n.2
(No. 89-1559, 1992) (when a non-petitioning party fails to respond to a briefing notice,
it runs the risk that the Commission will decide an issue against it without the benefit
of the party's views or position on the question). We further find that the possibility of
a fall of this distance onto a concrete surface and the uncontroverted evidence that an
employee could fall 10 to 20 feet from the wall openings is sufficient to establish that
both violations were serious in nature. See Whiting-Turner Contrac. Co ., 13 BNA
OSHC 2155, 2157, 1987-90 CCH OSHD � 28,501, p. 37,772 (No. 87-1238, 1989) (12-foot fall
is serious); Automatic Sprinkler Corp. of America , 8 BNA OSHC 1384,1390,1980 CCH
OSHD � 24,495, p. 29,929 (No. 76-5089, 1980) (concrete surface below as a factor
exacerbating the severity of a fall hazard). The Secretary also showed that Kulka had
previously been cited for violations of the same standards at issue here and had not
contested those citations. This evidence, which Kulka did not rebut, is sufficient to
establish a prima facie case that the violations alleged here were repeated. Potlatch
Corp., 7 BNA OSHC 1061, 1063, 1979 CCH OSHD � 23,294, p. 28,171 (No. 16183, 1979).

Finally, we note that only one or possibly two employees of Kulka were exposed to the
hazards, and their exposure does not appear to have been frequent or of long duration. The
fact that McKee also had concurrent responsibility for several other jobs as well suggests
that Kulka is a relatively small employer. Considering the factors set forth in section
17(j) of the Act, 29 U.S.C. section 666(j), we conclude that the penalties the judge would
have assessed had he found Kulka in violation of the Act are appropriate.

Accordingly, we affirm the amended citation alleging repeated and serious violations of
the Act for failure to comply with 29 C.F.R. Sections 1926.500(c)(1) and
1926.500(e)(1)(ii) and assess penalties of $500 and $300 respectively.

Edwin C. Foulke, Jr  

Chairman

Donald G. Wiseman


Commissioner

Velma Montoya


Commissioner

Dated: August 28, 1992

SECRETARY OF LABOR, Complainant, 

v.

KULKA CONSTRUCTION MANAGEMENT CORP.,

Respondent.

Docket No. 88-1167

APPEARANCES:

FOR THE COMPLAINANT:

Patricia M. Rodenhausen, Esq., Regional Solicitor

Alan Kammerman, Esq., of Counsel

Office of the Regional Solicitor

U.S. Department of Labor

FOR THE RESPONDENT:

Kaufman, Frank, Naness, Schneider

and Rosensweig, Esqs.

Thomas J. Bianco, Esq., of Counsel

DECISION AND ORDER

ORINGER, JUDGE: This is a proceeding brought under. � 10(c) of the Occupational Safety
and Health Act of 1970, 84 stat. 1590, 29 U.S.C. � 651 et seq. (hereinafter sometimes
referred to as "the Act"), to review citations issued by the Secretary of Labor
pursuant to � 9(a) and a proposed assessment of penalties thereon issued, pursuant to �
10(a) of the Act.

Subsequent to an inspection of a construction worksite, the Secretary of Labor served
upon the respondent one citation alleging repeated serious violations of the standards set
forth at 29 C.F.R. 1926.500(c) (1) and 29 C.F.R. 1926.500 (e) (1) (ii). The Secretary
proposed penalties of $ 840 for the aforesaid first allegation of violation and $600 for
the aforesaid second allegation.

The respondent timely filed with the Secretary of Labor a notification of intent to
contest the citation, all items thereon, and the proposed penalties. The hearing was held
on Monday, October 30, 1989 pursuant to due notice however the respondent's chief witness
did not obey a subpoena served upon him and, in response to the respondent's request,
after taking a days testimony, the hearing was put over and continued. It was completed on
December 22, 1989. The parties filed post hearing briefs.

THE TRANSCRIPT OF THE PROCEEDINGS

While this tribunal and other tribunals of record understand that transcripts often are
inaccurate as to certain words and phrases, this transcript appears to be inaccurate in
some areas to the point of ridicula ad absurdum specifically on page 77 of the transcript,
there is an example of the Judge speaking and the comments are totally inaccurate. There
are certain other inaccuracies in the transcript but they do not taint the evidence in the
case.

THE ISSUES

1. In this case did the respondent's work activities come within the purview of the
   construction standards?

2. Was the respondent in violation of either of the standards as alleged by the
   Secretary?

3. In the event that a violation of the standard alleged to be repeated and serious was
   proven by the Secretary, was the characterization of repeated and or serious appropriate
   therefor and, if not, what was the proper characterization therefor?

4. In the event that a violation of the standard was proven what is the appropriate
   penalty to be assessed therefor?

THE FACTS

Two compliance officers were assigned by their supervisor to perform a general
inspection at a construction worksite. Compliance Officers visited the site and while they
were inspecting the work of a contractor named Williamson, a Mr. Jack McKee arrived who
was a representative of this respondent. (Tr. 8) The worksite was a three-story office
building with a super-structure basically finished. The employees were completing the
work, such as interior partitions and glass and windows. During the opening conference Mr.
McKee stated that he represented Kulka, the construction manager on the job.

Mr. Brennan, one of the Compliance Officers, (C.O.), stated that he issued a citation
to Kulka for an alleged violation of 29 C.F.R. 1926.500(c)(1) because of wall openings
that you reach on the second floor at the top of the stairs. It had a plastic covering
however there were no guardrails and it was accessible to employees at the top of the
stairway on the second floor and on the third floor. He further alleged that there were
two wall openings on each floor. (Tr. 9, 10)

The floor openings were 6 feet wide on one side and 8 feet on the other and they were 7
foot 6 inches high. There was also a 13 inch parapet wall going around the bottom. Floor
openings began 18 inches above the floor. There were no guardrails and nothing prevent an
employee from falling through the openings. Brennan alleged that if you came around a
landing you would come within a couple of feet of the opening and it was his opinion that
they were readily accessible.

This was a multi-employer worksite without a general contractor. The construction
manager was the respondent, Kulka. The citation was predicated upon the fact that McKee
walks the site a couple of times a week and as a result he would be exposed to the hazard.
In answer to inquiry McKee advised Brennan that he used the stairways. (Tr- 12, 13)
Brennan testified that Kulka had no other employees on the job and McKee would be the only
representative for Kulka during the times that he inspected the job. (Tr. 14)

Brennan further stated that McKee advised him that in the event that guardrails were
necessary he would direct the proper person to put them up if it was the carpenter or if
Ii had his own equipment he would put them up himself. Brennan said that the fall hazard
from the second floor was approximately 10 feet and from the third floor approximately 20
feet. Brennan testified that he classified the alleged violation as serious in that if an
employee fell from an opening it could cause death. He further found that it was a repeat
violation because the respondent had violated the same standard previously and was issued
a citation for it December 9, 1985. The citation was never contested by the respondent and
therefor it was affirmed by operation of law. (Exh. C1, C2) Brennan utilized the Labor
Department's criteria for repeat penalties and proposed a penalty of $840 therefor.

Brennan also recommended issuing a citation for a violation of the standard set forth
at 29 C.F.R. 1926.500 (e)(1)(ii). The predicate of the violation according to Brennan, was
that the stairs leading to the second floor had no railing and was opened sided. Going up
to the second level, there were 12 risers, 42 inches in width. The standard requires a
guardrail on the open side of the stairway for any steps that are 44 inches or less. On
the other side of the stairs was a wall.

On cross-examination Brennan testified that the predicate of the violation was the
exposure of Jack McKee, who told him that he used those stairs for access to the second
and third floors. (Tr. 23)

A citation was issued to Kulka Construction Management Corporation, the respondent, on
November 3, 1986, for a violation of the identical standard. Respondent failed to contest
that allegation of violation and it became a final order by operation of law, which was
the predicate for the characterization of "repeat" to this allegation of
violation. The characterization of the original violation was other than serious. (Tr. 26)
Utilizing the Secretary's criteria for penalties, Mr. Brennan proposed a penalty of $600
for this allegation of repeated serious violation. (Tr. 28)

Mr. McKee, in answer to inquiry by Brennan told him that he visited the premises two to
three times a week some visitors were only an hour and others as much as six. McKee also
advised Brennar that he simply was a management employee and not a tradesperson on this
job. Brennan admitted that the violation issued to Kulka was solely based on the alleged
exposure of Mr. McKee. (Tr. 44) In answer to inquiry on cross- examination, Brennan
testified that Mckee advised him that he used the stairways in question.

Mr. Magee, the Compliance Officer who accompanied Mr. Brennan during the inspection,
testified out added nothing of substance to the testimony given by Compliance Officer
Brennan. After the government rested the respondent advised the tribunal that his primary
witness, Mr. McKee,did not respond to the subpoena and he put on as his only witness for
the day the Vice-President in charge of finance, one, a Mr. Ridell. He testified that in
the contract between the respondent and the owner, the construction manager, to wit,
Kulka, was assigned responsibility for safety precautions and programs. Kulka reviewed the
safety programs of each contractor who was contractually responsible to the owner for
safety. (Tr. 81) In answer to inquiry from the bench, the witness testified that Kulka
does construction management and it is sometimes a prime contractor, although possibly
through a different corporation (Tr. 90)

The witness testified that respondent would have one or two persons visit the jobsite
at the most. The second individual would be the project manager, one, Thomas Orr. also no
longer employed by respondent. Mr. McKee, the project superintendent, was subordinate to
Mr. Orr who was the project manager. (Tr. 91) The project manager administers Kulka's
obligations under the contract (Tr. 91, 92).

At the reconvening of the hearing on December 22, 1989 the respondent continued its
case by putting on Mr. McKee the former project superintendent, who was employed by
respondent at the time of the incident in question. Mr. McKee testified that he left Kulka
in August 1988 to open his own business as a general contractor and carpenter. Prior
thereto he was employed by the respondent as a project coordinator and was hired
approximately 7 years prior to the day of the hearing.[[1]] (T-2, 8). While originally
hired as a project coordinator he was subsequently promoted to project manager and during
the month of April 1988 when the incident in question took place he was a project manager
for Kulka. He was both project manager and field superintendent insofar as this new
construction, three story office building, was concerned.

McKee testified that what he did was on a partial basis. He would act as the eyes and
ears of the owner, generally overseeing that the work conformed with architectural
drawings and also made sure that the trades were there during the time they stated that
they were going to be there.(T-2, 9)

Mckee testified that in some respects his responsibility was similar to a supervising
architect however the differences were that an architect would also remain on the job
making specific inspections, testing and looking at steel concrete laboratories. His
function was to make sure that mechanical work such as molds were of a quality expected on
the job. He did no physical labor and the temporary office that Kulka had initially was
demolished. It had been an existing structure and they just kept same material in it.
Primarily, he worked out of his vehicle. Mr. McKee was the only employee other than the
project manager who would visit the site possibly once a month or as needed. In other
words, if McKee had a particular problem, he would call his superior, the project manager.

He testified that Kulka had no specific authority to direct the contractors what to do.
If he saw something that was blatantly dangerous he would advise the contractor that it
was dangerous and that he should not do It that way, but from a strict responsibility
standpoint, he stated, he would tell the owner of the project that he believed there was a
dangerous condition and let the owner handle it directly with the contractor. The owner
was the Eghrari family. Isabelle Eghrari came to the site periodically. Principally, her
son Mark was the representative of the owner. Any recommendations or problems that existed
were brought to Mark Eghrari's attention, inasmuch as the Eghrari's acted as the general
contractor and maintained separate contracts with each individual subcontractor.

On the average McKee would visit the site two the tree times weekly. At the time this
project was going on Mr McKee was running another five or six jobs. He testified that
often the time spent would be very cursory and, in fact, sometimes he would just drive by
to take a quick look out the window of his vehicle to see if somebody in particular was
there on the site. Much of his time was spent on the telephone with subcontractors which
was done out of his office rather than at the site in question. Neither he or anyone from
Kulka did any physical labor on the job. If there were trades working on the job the Kulka
representative would walk around making sure that the work was done properly. When
interior trades were working on the building he would walk through the building. In
addition, he would take a body count of how many carpenters were working, how many
electricians were working and what type of work they were doing. He would inspect the
location of the work, whether they were on the second floor or what wing of the building
they were working in and would keep a log of such information. In a general sort of way,
Kulka directed the contractors as to how they wanted the job to proceed but from an actual
scheduling standpoint, McKee testified, that the subcontractors contributed as much to the
schedule as did Kulka. The subcontractors usually determined the amount of men allocated
to do the job and the work was done directly by the subs. Information was given to Kulka
by the subs and Kulka would coordinate the information given to it.

Mr. Brennan testified on rebuttal, on answer to inquiry by the bench, that he walked up
the very steps containing the exposure to which the respondent's employee McKee was
exposed and which was the predicate of the citation. (T-2, 37)

DISCUSSION

I DID THE CONSTRUCTION STANDARDS APPLY TO THE RESPONDENT GIVEN ITS DUTIES AND
RESPONSIBILITIES IN THE INSTANT CASE

The first salient question is whether or not this respondent was Covered by the
construction standards under the contract between it and the owner as well as the actual
duties and responsibilities of this respondent anent this construction site.

The Secretary relies oh' the cases of Bechtel Power Corp. 4 BNA OSHC 1005 (Review
Commission 1976; affirmed 548 F. 2d 249 (8th Cir. 1977) and Bertrand Goldberg Associates 4
BNA OSHC 1587 (Review Commission 1976). While other cases were discussed by the Secretary
these were primarily the important cases upon which the Secretary relied. She mentioned in
passing also her reliance on Vappi and Co., Inc., 4 OSHC 1479 (Review Commission 1976)
which cited Bechtel, supra. The respondent, while it mentioned and discussed many cases on
the subject, principally relied on Skidmore, Ownings. and Merrill 5 BNA OSHC 1762.

Interestingly enough the three cases that were principally relied upon by the parties
to wit Bechtel, Goldberg, and Skidmore, Owings, and Merrill (SOM) all were authored by
former Commissioner Timothy F. Cleary. In Bechtel the respondent was the construction
manager at the site of a power plant in Missouri. As construction manager it did no actual
work of construction and had no direct contacts with any craft unions in connection with
work on the project. The actual construction was performed by various contractors all of
whom who had prime contracts with the owner. These prime contractors may have had one or
more subcontractors.

Bechtel's services included the development and design of the plant. It expertly
administered and coordinated the construction on behalf of the owner and conducted daily
inspections of the work and progress to ensure that the various prime contractors and the
subs adhered to design specifications. In addition thereto its employee's checked the
payrolls to see if they reflected the actual number of workmen employed. Bechtel also
monitored and recorded the progress of the work and interpreted design drawings. Its role
was described by the Commission majority as comprehensive and vital to the orderly
completion of the work. Respondent employed at least two safety representatives who
policed the site and reported hazardous conditions to the prime contractors as well as
coordinating the safety program. Bechtel attempted to persuade the contractors to comply
with safety regulations when and if hazards were present. In the case of serious hazards
it could have actually directed that work be stopped until the condition was corrected. To
carry out its functions Bechtel employed 83 workmen of which 33 were administrative and
office personnel and the remaining 50 were engineers, timekeepers and safety inspectors.
Their duties took them all over the job site.

The Commission majority concluded that respondent was an integral part of the total
construction system at the site and that its functions were inextricably intertwined with
the actual physical labor performed at the site. Commissioner Cleary went on to state that
because respondent's work was so directly and vitally related to the construction being
performed and because it's employee worked at this construction site it was
"engaged" in construction and performed work "for" construction within
the meaning of the regulations.

Bechtel also contended that the citations against it must be vacated because it neither
created nor controlled the violations or conditions to which its employees were exposed
and pointed to the decision in Anning-Johnson, Co. v. OSHRC 516 F. 2d 1081 (7th Cir.
1975). The 7th Cir. opinion in Anning-Johnson, as pointed out by the Commission in its
decision, is limited to a subcontractor having severe problems in abating hazards
resulting from a violation of the standard. The Commission majority correctly pointed out
that Bechtel was not a subcontractor, but rather a construction manager. Given the facts
of that case as construction manager Bechtel was empowered to organize, plan and manage
the construction program and also empowered to inspect, approve and coordinate the
performance of the prime contracts therefor, the Commission majority decided that the
respondent was clearly not the type of construction contractor found within the purview of
the Anning-Johnson decision. It had tae power to protect its employees and other employees
against violations committed by the various prime and lower-tier contractors.

In Secretary of Labor against Bertrand Goldberg Associates, supra, respondent was
employed by the state of New York as an architect and manager of a construction project on
the campus of the stat university in Stoney Brook, Long Island. Under its contract with
the state the respondent was responsible for the development and design of the project,
the preparation of documents, the administration of contracts held by contractors hired to
build the project as well as the inspection of the worksite to ensure that the plans were
properly executed and specifications met. The Commission majority found that the
respondent hired inspectors and other field employees in order to fulfill its
responsibilities.

The Commission majority stated that in its contracts with certain of the builders the
state specifically assigns safety responsibilities however, as manager of the project, it
was respondents duty to see that the builders complied with the terms of their contracts
which included safety. The respondent's inspectors continually surveyed the worksite and
in the event that, an inspector found a safety hazard or a failure to meet project
specifications Goldberg's representatives had the authority to stop the work if in its
opinion the circumstances warranted such action.

Again in this case, the first issue before the Commission was whether or not respondent
was subject. to the construction safety and health standards at 29 C.F.R. part 1926. The
Commission majority decided that its decision in Bechtel Power Corporation was dispositive
of the identical issue in Goldberg. It found Respondent Goldberg to be on employer under
the Act and subject to the construction safety and health regulations found at 29 C.F.R.
part 1926. Again the Commission majority found the this respondent could not avail itself
of the Anning-Johnson Co. defense just as it did in Bechtel and that this respondent did
not qualify as a non-creating non-controlling subcontractor. Here the Commission found the
respondent's position more akin to that of a general contractor and that it possessed
"sufficient control ever the entire worksite to give rise to a duty under section
5(a) (2) of the Act to either comply fully with the standards or to take the necessary
steps to ensure compliance." The Commission cited Anning-Johnson supra and Grossman
Steel & Aluminum corporation BNA 1 OSHC 3337.

The third important decision on this subject, also authored by Commissioner Cleary was
Skidmore, Ownings and Merrill BNA 5 OSHC 1762, an unanimous decision of the Commission.
Here, the Commission found that the Construction standards of 29 C.F.R. part 1926 did not
apply to an architect who was employed by the owner of the building and exercised only
limited supervision over actual construction work. Again the respondent's primary argument
was that it was not engaged in "construction work" within the scope of 29 C.F.R.
part 1926 and that as an architect and engineer could not be responsible under section
5(a)(2) of the Act for violations of conditions to which its employees were exposed but
which it did not control or create. The construction was at the Sears Tower site in
Chicago. The general contractor on the site was commonly designated "Diesel
Construction". The respondent, Skidmore , Ownings and Merrill (SOM) had
a contract with the owner sears Roebuck and under the contract inspected the work of the
various contractors to ensure that design specifications were met. For this purpose
respondent employed four field representatives to observe the work as it was performed and
review the results of tests performed by independent testing companies. It was SOM's duty
to determine whether or not the work did not conform to the specifications and was
unacceptable to the owner. In such case respondent would meet with representatives of
Diesel and the subcontractor and, if necessary, direct that the work be redone or
repaired. While SOM field representatives performed no actual physical labor, their
employment necessitated movement throughout the construction site. SOM's contract with
Sears provided that nothing in the agreement could be construed as giving SOM the
responsibility for, or the authority to, direct or supervise construction methods,
techniques, procedures or safety methods. Diesel Construction's contract with Sears
provided that Diesel had the responsibility for establishing, maintaining and supervising
the safety and loss prevention programs covering all work performed by it and its
subcontractors. The salient question in this case was whether the work performed by SOM
comes within the purview of part 1926, (the construction standards).

The unanimous opinion of the Commission was that under the facts in this case SOM did
not perform construction work described in 29 C.F.R. 1910.12. The Commission then stated
that in Bechtel Power Corporation they read section 1910.12 as applying to
employers who are not performing the actual work of construction but performing work
directly and vitally related thereto. The commission also stated "although we do not
over-rule these decisions, they should not be read more broadly then their facts permit.
As we have noted in another case, 'general expressions transported to other facts are
often misleading'." Monroe & Sons, Inc. BNA 4 OSHC 2016.

The decision letter stated that

(" Bechtel and Bertrand Goldberg ware construction managers. Although
they performed no actual physical construction, each retained substantial supervision over
the progress of the work and the safety program, at the worksite. During construction,
their functions as construction managers were management functions similar to that of a
general contractor.") (citations)

"In contrast, the architect engineer in this case has more limited functions and
authority over the work. And we note that this is generally true in assessing the role of
an architect both in the traditional arrangement where, as here, the architect works
directly for the owner, who has contracted with a general contractor to perform the actual
construction work, and in the construction management arrangement where the architect is
part of the construction management team."

In the instant case the exact function of Kulka Construction Management Corporation is
similar to that of SOM. This respondent only reported to the site two to three times
weekly, generally for short time periods. In addition, the contract required it to be the
eyes and ears oil the owner and to coordinate the different contractors and coordinate the
safety functions. It did not have supervisory power or responsibility. It could not order
the different subs to remove certain hazards; it could only suggest it.

The power to supervise and issue orders was retained by the owner, the Eghrari family.
I find that the duties of Kulka, given the facts of this specific case only, was most
similar to that of SOM, rather then those of Bechtel or Goldberg .
Accordingly, I find that respondent was not subject to the construction standards and the
citation and penalties must fall.

Assuming arguendo however, that an appellate reviewing authority decides the question
differently, I do find that the violations were present. The lower stair case had no
handrail and accordingly it was technically in violation of the standard. The penalty
however, given the short distance of any fall and the chances of it occurring would be
sufficient at $300.

Insofar as the wall openings are concerned I find that just as the compliance officers
were exposed to them upon ascending in the building so was McKee. Had the standard applied
to McKee and Kulka, then and in such case, the violation would have been proven and the
proper penalty would have been $500. For the reasons annunciated by the Commission in Bechtel
and Goldberg I find that the Anning-Johnson defense would not be available
to this respondent as it is not a subcontractor.

To reiterate while I find that the Secretary had ample justification for issuing the
citation and the items thereon I find under the peculiar and particular facts of this case
the construction standards do not apply to this respondent for the aforecited reasons.

Any case cited in the parties briefs not discussed in this decision were found
nonanalgous, nonprecedential or unnecessary to the resolution of this controversy.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of facts and conclusions of law contained in this opinion are incorporated
herein in accordance with Rule 52 of the Federal Rules of Civil Procedure.

ORDER

In view of the foregoing, good cause appearing therefor, it is ORDERED that:

1. The allegation of repeat violations by this respondent found in the citation issued
   to it is vacated together with and penalty proposed therefor.

IT IS SO ORDERED.

DAVID G. ORINGER, JUDGE, OSHRC

Dated: September 17, 1990,

Boston Massachusetts

FOOTNOTES:

[[1]] At the time in question here, the standards provided:

� 1926.500 Guardrails, handrails, and covers.

(C) Guarding of wall openings. (1) Wall openings, from which 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 as follows: [either a top rail, midrail, or toeboard, or any combination
thereof is required depending on the size and position of the opening]

(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers
shall be equipped with standard stair railings or standard handrails as specified below,
the width of the stair to be measured clear of all obstructions except handrails:

(ii) On stairways less than 44 inches wide having one side open, at least one stair
railing on the open side [.]

Subsequent to the inspection here, the requirements dealing with stairways were removed
from this section and rewritten and recodified in section 1926.1050.55 Fed. Reg. 47,660
(1990).

[[2]] We deny the motion of the amici curiae that they be permitted to present oral
argument. The same amici participated in oral argument before the Commission in SGH, in
which we decided the issue of the legal test to be used in determining whether the
construction standards apply to employers who do not perform actual trade labor. Since we
apply out holding in SGH here, we have no need for oral argument in this case.

[[3]] The record indicates that Kulka has been the general contractor on some jobs,
directly hiring and supervising the subcontractors. When Kulka acts as the general
contractor rather than construction manager, however, it does so through a different
corporate affiliation.

[[4]] Brennan testified that McKee stated that if he had the necessary equipment in his
truck. he would have installed the guardrails himself. McKee did not deny having made this
statement, but he explained that he made that statement not because it was part of his job
to provide guarding but because he felt "it was the right thing to do." He knew
and had been told that he was not supposed to perform actual physical labor on the site,
such tasks were reserved for the craft tradesmen and mechanics.

[[5]] McKee agreed that Kulka's contract addressed the matter of safety, but he stated
that it was his impression from "meetings and briefings" in Kulka's office that
Eghrari was responsible for safety. The fact that Eghrari may have had overall
responsibility for safety matters, however, does not preclude Eghrari from delegating
authority over safety conditions at the site to Kulka. See Central of Georgia Railroad Co.
v. OSHRC. 576 F.2d 620. 624 (5th Cir. 1978). McKee's testimony, therefore, is not
inconsistent with our finding that Kulka exercised supervision over subcontractor
regarding the safety of working conditions.

[[6]] The merits of the alleged violations were not included within the direction for
review. While the Commission has discretion to limit the scope of its review, Pennsylvania
Steel Foundry &.Machine Co., 12 BNA OSHC 2017, 2014 n.3,1986-87 CCH OSHD � 27,671
p.36,063 n.3 (No. 78-638,1986). aff'd. 831 F.2d 1211 [3d Cir. 1997). The Commission has
authority to consider any issues raised in a case directed for review. Hamilton Die Cast
Inc., 12 BNA OSHC 1797, 1986-87 CCH OSHD � 27,576 (No. 83-308, 1986). The elements of
proof that the standards were violated, as well as the characterization of the violations,
were briefed on review by the Secretary, and deciding those questions is necessary to a
full disposition of the case.

[[7]] See Supra note 6.

[[1]] Testimony adduced on December 22, 1989 will be referred to as "T-2" and
then the page will follow.