Beta Construction
General contractor liable for inadequate night lighting
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This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Beta Construction was the general contractor for removal and replacement of roofing at the Department of Housing and Urban Development headquarters in Washington, D.C. Its asbestos-removal subcontractor worked at night in areas measuring as little as 1.95 foot-candles, below the required five foot-candles, and some areas produced virtually no meter reading. The ALJ held Beta responsible because it supplied the lights, had a superintendent on the roof, and could detect and correct the obvious condition through its supervisory authority. Beta could not delegate its OSHA responsibility to the subcontractor or rely on its superintendent's lack of an asbestos-removal license because poor lighting was readily observable from outside the regulated work area. Claimed inspection and conference irregularities did not warrant relief because Beta showed no prejudice to its defense. The violation was affirmed as other-than-serious with a $250 penalty, reduced from the citation's original serious classification and $525 proposal.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.56(a)
- Outcome: The inadequate-lighting item was affirmed as other-than-serious with a $250 penalty.
- Key point: A general contractor remains responsible for an obvious subcontractor hazard that it can detect and abate through on-site supervision.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
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SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2642
BETA CONSTRUCTION
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE h4W JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on May 49, 1993. The decision of the Judge
will become a final order of the Commission on June 21, 1993 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 by the Executive Secret on or before
June 9, 1993 in order to permit sufficient time for its review. Y ee
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. 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 rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
~~~4JL+cAiy,g/-
Date: May 20, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 92-2642
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the SoQicitor, U.S. DOI&
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Marshall H. Harris, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Building
3535 Market J treet
Philadelphia, PA 19104
Michael Allen, Director of Human
Resources
Daniel Gordon, Vice-President
Beta Construction Company, Inc.
9010 Ed eworth Drive
Capitol h eights, MD 20743
Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00123502023 :03
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
\ 182!j K STREET N.W.
1 4TH FLOOR
i
WASHINGTON DC 20006-1246
(202)
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..
SECRETARY OF LABOR, ..
.
Complainant, ..
.
.. OSHRC Docket No. 92-2642
v.
.
BETA CONSTRUCTION CO., INC., :
Respondent. .
..
APPEARANCES: Richard W. Rosenblitt, Esq. Michael Allen and
Office of the Solicitor Daniel Gordon, Pro Se
U.S.Department of Labor For Respondent
For Complainant
Before: Administrative Law Judge Michael H. Schoenfeld
DECISION AND ORDER
DECISION
Background and Procedural Historv
This case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. 8 5
651 - 678 (1970) (“the Act”).
Having had its worksite inspected by an industrial hygiene compliance officer of the
Occupational Safety and Health Administration, Beta Construction Co., Inc., (“Respondent”)
was issued one citation alleging that it failed to comply with the construction safety standard
at 29 C.F.R. 6 1926.56(a) (1991). A penalty of $525 was proposed*. Respondent timely
contested. Following the filing of a complaint and answer and pursuant to a notice of
hearing, the case came on to be heard in Washington, D.C., on January 28, 1993. No
affected employees sought to assert party status. Both parties have filed post-hearing briefs
and the Secretary, pursuant to leave granted by the Administrative Law Judge, has filed a
reply brief.
Jurisdiction
Complainant alleges and Respondent does not deny that it is an employer engaged
in roofing contracting. It is undisputed that at the time of this inspection Respondent was
engaged in roofing removal and replacement. Respondent does not deny that it uses tools,
equipment and supplies which have moved in interstate commerce. I find that Respondent
is engaged in a business affecting interstate commerce.
Based on the above finding, I conclude that Respondent in an employer within the
meaning of 0 3(S) of the Act. Accordingly, the Commission has jurisdiction over the subject
matter and the parties.
Discussion
.
Commission precedent regarding the culpability of general contractors on multi-
employer construction sites is clear.
The Commission has held that, on multi-employer construction
sites, the general contractor is responsible for violations of its
subcontractors that the general contractor could reasonably be
expected to prevent or to detect and abate by reason of its su-
pervisory capacity over the entire worksite, even though none
of its own employees is exposed to the hazard. (Citations
Omitted.)
’ The Secretary’s complaint reduced the classification of the alleged violation born serious to other than
serious and the amount of the proposed penalty from $525 to $250.
2
Gil Haugan Construction Co., 7 BNA OSHC 2004,2006 ( NOS.764515 and 764513, 1979).
me Commission has recently reiterated this holding. Blount International,Ltd., 15 BNA
OSHC 1897 (No. 894394, 1992).
Respondent, a general contractor was retained to remove and replace roofing on a
federal government building. It had a superintendent present on the roof during the night-
time hours when its subcontractor, ABTEC, Inc., (“ABTEC’) was removing roofing materials
under inadequate lighting conditions which were violative of the requirements of OSHA
standards. It is therefore in violation as alleged.
Respondent had a contract with the U.S. General Services Administration (“GSA”)
to do the roofing work on the headquarters of the Department of Housing and Urban
Development in Washington, DC. The contract required, among other things*, that
Respondent have a competent superintendent present during the performance of all work
(Exhibits G-4 thought G-7; Tr. 14-15, 145-M). Respondent supplied the lights for the
night time work and most likely regularly assisted in setting up the lights before the
beginning of the night shift. The lights were stored under Respondent’s control when not
in use (Tr. 131-132; 194).3
The OSHA industrial hygiene compliance officer who conducted the inspection had
been trained in and had experience in light measurement and was using equipment which
had been properly calibrated and tested before use. During his inspection, he observed
employees of ABTEC working in areas in which the light measured 1.95 foot-candles, less
than the minimum of 5 foot-candles required by Table D-3 referred to by 29 C.F.R.
0 1926.56(a) (1991). The compliance officer’s testimony was competent, reliable and
- That the contract might have also placed upon Respondent the burden of complying with
all pertinent safety and health regulations and assuring that it sub-contractors did so also,
is inconsequential. The general contractors responsibility under the Act is imposed by law
and can not, even if the parties desired to do so, be displaced by a contract agreement.
3
Respondent’s contention that ABTEC set up the lamps and controlled storage, is
rejected. Even if it were so, Respondent still failed in its supervisory duty as the general
contractor.3credible. His demeanor was appropriate, his factual testimony is consistent with other facts
of record and he presented factual bases for his conclusions.
On this record, the Secretary has demonstrated that the cited standard applies in that
roofing repair and removal is alteration or repair within the meaning of 29 C.F.R.8 1926.10
(1991). The Compliance Officer’s testimony establishes the violative condition. There is no
dispute that Respondent was the general contractor which supervised and had the ability to
control a work-site where a sub contractor’s employees were working under inadequate
lighting conditions. The violative conditions of darkness were readily visible and obvious.
Respondent, as the general contractor and through its contracts, had the personnel and
expertise to abate the hazard. In at least some of the areas, it was so dark that the light
meter showed virtually no reading at alL4 Even a casual inspection of the work area would
have alerted a competent superintendent that the lighting was poor or almost non-existent.
Thus, whether or not Respondent’s own employees were exposed to the hazard’, it was
nonetheless responsible for the condition as the general contractor. In addition, the hazard
was so obvious that Respondent knew, or reasonable should have known of the violative
condition. The Secretary has thus demonstrated, by a preponderance of the evidence, all
of the necessary elements to show a violation of a standard. Astra Pharmaceutical Muck,
Inc., 9 BNA OSHC 2126,2129 (No. 78-6247,198l); Dun-Par Engineered Form Co., 12 BNA
OSHC 1949 (No. 79.2553), rev’d & remanded on other grounds, 843 F.2d 1135 (8th Cir.
1988), deckion on remand 13 BNA OSHC 2147 (1989).
Respondent’s argument that it was allowed to and did delegate to its sub-contractor
responsibility for the proper performance of the job is, even if true, insufficient to absolve
4 The facts that there may have been adequate lighting on other occasions or that there
were sufficient lighting instruments available to adequately light the work area do not detract
from the credibility of the inspecting officer’s testimony and measurements as to the lighting
conditions which existed at the time of his inspection.
’ Complainant argues that Respondent’s own employee, the Superintendent, was exposed
to the hazard in that he worked or at least had access to the zone of danger created by the
violative condition. Although not necessary to the decision, were this issue before the
Administrative Law Judge, just such a factual finding would be made.
4
itself of its responsibility imposed by the Act on gemxd contractors. It is rejected. Similarly
rejected is its argument that its superintendent, Mr. King, could not supervise ABTEC’s work
because he was not licensed in asbestos removal6 and that he was not permitted within 50”
of the asbestos removal work being done. The lack of lighting could be easily observed
according to the inspecting officer.
Respondent’s claimed improprieties in the manner of inspection, closing conference,
telephone conference and informal conference have not been shown to be prejudicial. As
with its other claims of prejudice (e.g., delay in issuance of citation), its ability properly to
defend the citation on the merits has not been shown to be diminished even if the alleged
improprieties did occur. Respondent’s arguments are thus rejected. Respondent’s argument
that it is entitled to have inferences drawn as to the inadequacy of the light measuring
equipment does not withstand scrutiny. All material properly discoverable had been
produced by the Secretary. Respondent was afforded an opportunity to review all of the
material and did so. At no subsequent point after its review of the material did Respondent
claim that materials requested for its examination were not produced.
The violation was, as alleged, other than serious. The lack of adequate lighting led
to tripping and falling hazards which would likely result in contusion and abrasions. More
serious injuries were not likely. A penalty of $250 is appropriate.
FINDINGS OF FACT
All findings of fact necessary for a determination of all relevant issues have been
made above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law
inconsistent with this decision are hereby denied.
6 It is undisputed that the roofing material being removed and replaced contained asbestos,
that ABTEC was a licensed asbestos removal contractor, and that the work was being done
out-of-doors.
5
CONCLUSIONS OF LAW
1. Respondent was, at all times pertinent hereto, an employer within the meaning
of 0 s(5) of the Occupational Safety and Health Act of 1970, 29 U. S. C. 0 6 *651 - 678
(1970).
2. The Occupational Safety and Health Review Commission has jurisdiction over the
parties and the subject matter.
3. Respondent was in violation of 0 5(a)(2) of the Occupational Safety and Health
Act of 1970, 29 U.S.C. 9 654(2), in that it failed to comply with the standard at 29 C.F.R.
0 1926.56(a).
4. The violation was other-than-serious.
5. A penalty of $250 is appropriate.
ORDER
1. The citation issued to Respondent on or about July 20, 1992, is AFFIRMED.
2. A penalty of $250 is assessed.
I’,
MICHAEL H. SCHOENFELD
Judge, OSHRC
Dated: MAY 14 199
Washington, D.C.
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