Sparrow Construction Corp.
General contractor liable for unshored fire-damaged floors
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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
Sparrow Construction was the general contractor for the rehabilitation of fire-damaged residential buildings in New York City. Two subcontractor employees removed debris beneath floors and structural areas that had partially collapsed, with hanging debris above them and no shoring or bracing. The ALJ found the condition obvious and held that Sparrow's on-site superintendent knew or should have known about it. As the general contractor with supervisory control, Sparrow was responsible for a subcontractor's violation that it could reasonably detect and correct even though its own employees were not exposed. The judge affirmed the serious shoring violation and assessed a $2,000 penalty. A separate repeat citation covering three other standards was resolved by an approved partial settlement whose penalty terms are not stated in the release.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.850(b), 1926.405(a)(2)(ii)(E), 1926.405(a)(2)(ii)(I), and 1926.850(g)
- Outcome: The serious shoring item was affirmed with a $2,000 penalty, and the three-item repeat citation was settled.
- Key point: A general contractor can be responsible for an exposed subcontractor's violation when its supervisory authority allows it to detect and abate the hazard.
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 200363419
FAX:
COM (202)606-5050
Frs (202)6064050
SECRETARY OF LABOR
Complainant,
V. OSHRC DOCKET
NO. 92-3009
SPARROW CONSTRUCTION CORP.
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 August 3, 1993. The decision of the Judge
will become a final order of the Commission on September 2, 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. b
Any such petition should be received b the Executive Secretary on or before
August 23, 1993 in order to ermit suf l!icient time for its review. See
Commission Rule 91, 29 C. Ip.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 Litigation
Office of the Solicitor, U.S. DOL
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.
Date: August 3, 1993
DOCKET
4 NO. 92-3009
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOY
Room S4004
. 200 Constitution Ave., N.W.
Washington, D.C. 20210
Patricia Rodenhausen,
Re ional Solicitor
w.
Of&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014
Paul Vincent Bonfiglio, Safety
Advisor
Vincent Safety Service Corn any
357 Hempstead Turnpike - 1 uite 206
Post Office Box 212
West Hempstead, NY 11552
Irvin Sommer
Chie f Administrative Law Jud e
Occupational Safety and Healt 5
Review Commissron
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00106186745:02
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
\ 1120 20th Street, N.W. - 9th Floor
\ Washington, DC 20036-3419
FAX:
PHONE:
COM(202)60&5050
COM(202)606-5100
ns(202)606-5060
FTS(202)60&5100
..
SECRETARY OF LABOR, ..
Complainant,
v. Docket No. 92-3009
SPARROW CONSTRUCTION
CORPORATION,
..
Respondent.
Appearances:
Steven D. Riskin, Esq. Paul Vincent Bonfiglio
U.S. Dept. of Labor Vincent Safety Service Co.
New York, New York West Hempstead, N.Y.
For the Complainant For the Respondent
Before: Administrative Law Judge Irving Sommer
This is a proceeding under Section 10(c) of the Occupational Safety and Health Act
of 1970,29 U.S.C. 651 et seq., (the Act), to review citations issued by the Secretary of Labor
pursuant to section 9(a) of the Act, and the proposes assessment of penalties therein issued,
pursuant to section 10(a) of the Act.
Following an inspection of the Respondent’s business site at 60 West 109th Street,
New York, New York, the Secretary of Labor issued two citations charging a serious
violation of the standard at 29 C.F.R. 1926.850(b), and a repeat violation of the standards
at 29 C.F.R. 1926.405(a)(2)(ii)(E), 29 C.F.R. 1926. 405(a)(2)(ii)(I) and 29 C.F.R.
2
1926.850(g). The repeat citation was settled by the parties prior to trial. A hearing was held
on the remaining citation in New York, N.Y. NO jurisdictional issues are in dispute, the
parties having pleaded sufficient facts to establish that the Respondent is subject to the Act
and the Commission has jurisdiction of the parties and of the subject matter.
Alleged Violation of 29 C.F.R. 1926.850(b)-Serious Citation 1
The standard at 1926.850(b) provides:
When employees are required to work within a structure to be demolished
which has been damaged by fire, flood, explosion, or other cause, the walls or floor shall be
shored or braced.
Sparrow was the general contractor carrying out the job of completely rehabilitating
residential structures herein which were in a total state of disrepair having been fired ou<
burnt out and were inhabitable. Their job was to demolish the remaining insides of the
buildings, rebuild them, keeping the outside framework. These activities were called “gut
rehab” by Mr. Silverstein, a company officer. Compliance officer Cugno testified that three
brick buildings at the site were being renovated and “what they call gut rehab” was being
carried out. He observed two workers “pulling debris by hand and shovel onto a
wheelbarrow” and “they were standing
. directly underneath a floor where a partial collapse
had occurred%hen I walked towards there, I observed that there was an opening that went
from the first floor all the ways to the roof. It had been a partial collapse and you can see .
daylight and there was debris hanging on all the floors above.” These employees were
working directly underneath the debris, on the first floor, removing the debris. (T, 16).
The compliance officer stated the floor above had all charred walls and beams and in a state
of partial collapse; the building had been vacant with fire and water damage visible. The
employees working there were removing debris and they “were doing the preparations of the
demolishing of that area”. There was no bracing on all the flooring above where the men
were working to prevent the possibility of a collapse of the flooring on top of the employees,
which if it occurred would have seriously injured them. The two workers observed working
3
were employed by Mam Designers, the demolition subcontractor hired by the Respondent.
Respondent Sparrow had a construction superintendent on the site to take care of any
problems.
The compliance officer gave his testimony in a straightforward, frank and convincing
manner and appeared to be truthful and honest and was sufficient to make out a prima facie
case of a violation of the standard at issue. His testimony was not discredited in any way,
nor contradicted by direct evidence, nor by any legitimate inferences from the evidenceThe
record fully demonstrates that there was a hazard present to the employees removing the
debris herein from potential collapse of the flooring and other destroyed areas, and that such
hazard could be controlled by shoring or bracing, which was not done. The violative
conditions were readily visible and obvious. The -Respondent’s construction superintendent
was on the premises, had knowledge of the work being done by his subcontractor and
furthermore was conversant with the conditions present at a “gut rehab”. The hazards m
men working at “gut rehab” were obvious to the Respondent, and it knew or should
reasonably known of the violative conditions. The Respondent, as general contractor herein,
and in overall control had the responsibility of protecting the subcontractor’s employees who
were at serious hazard herein. Respondent’s allegation that it is not responsible under the
Act for the hazards to which employees, not its own, are subjected to is rejected.
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 supervisory
capacity over the entire worksite, even though none of its own employees is exposed to the
hazard. (Citations Omitted). Gil Haugen Construction Co., 7 BNA 2004, 2006
(Nos. 76-1515 and 76-1513, 1979). This ruling was re-affirmed in Blount International,Ltd.
15 BNA OSCH 1897 (No. 89-1394, 1992). The totality of the evidence establishes a
violation of 1926.850(b). The absence of bracing or shoring could lead to a collapse upon
the workers removing the debris causing serious injuries. Under all the existing facts and
circumstances herein, a penalty of $2000.00 for said violation is consistent with the criteria
set forth in section 17(j) of the Act.
4
FINDINGS OF FACT AND CONCLUSIONS OF LAW
All findings of fact relevant and necessary to a determination of the contested issues
.
have been found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil
Procedure. Proposed findings of fact or conclusions of law inconsistent with this decision
are denied.
ORDER
Based upon the Findings of Fact, Conclusions of Law, and the entire record, it is
hereby ORDERED:
1a Citation no. 1 is AFFIRMED as a serious violation of 29 C.F.R. 1926.
850(b), with a penalty of $2000.00 ASSESSED.
IRVING SOMhER
Judge
DATED: &JG - 2 1393
Washingtoi; D.C.
SOL:SDR:sm
35124
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION
mm.--- ------I)-----------------------------------
.
ROBERT REICH, Secretary of Labor, 0
.
United States Department of Labor,
a
0 OSHRC Docket
Complainant,
0
. NO. 92-3009
V.
0
.
SPARROW CONSTRUCTION CORP.,
l
.
Respondent.
-------I)------------I,--------------------------
ORDER APPROVING PARTIAL SETTLEMENT
Respondent in OSHRC Docket No. 92-3009, by a letter dated
September 15, 1992, contested 2 citations issued to it by
Complainant on August 27, 1992, In that letter, Respondent also
contested the penalties proposed by Complainant for the citations.
An executed Partial Stipulated Settlement has been received
from the parties, and this stipulation addresses all matters at
issue between the parties regarding Citation No. 2, Items 1, 2 and
3, and the accompanying proposed penalties in this proceeding. The
stipulation having been read and considered it is
ORDERED: (1) That the terms of the Partial Stipulated
Settlement are approved and incorporated as part of this Order; and
(2) That this Order, pursuant to Section 12(j) of the Act, 29
U.S.C. 5 661(j), will become the final order of the Commission at
the expiration of 30 days from the date of docket.ing by the
Executive Secretary, unless within that time a member of the
Commission directs that it be reviewed.
Dated this es?2
e!
day of
/ &M A /
q f 1993.
SO ORDERED:
,-\\ /"
.i
/I
Judge, Occupational Safety
& Health Review Commission
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