Peck and Hiller Company

Plain-English summary

Peck and Hiller was the concrete form-shoring subcontractor on a Navy bachelor
enlisted quarters project at the Everett Naval Station in Washington. Responding
to an employee complaint, an OSHA compliance officer inspected the site and found
that a wire-rope guardrail Peck had installed on the third floor was so slack it
sagged to within 30 inches of the floor, well below the required height, exposing
eight steel-erection workers from another contractor to a fall of about 25 feet.
Peck argued it should not be liable because the general contractor had
contractually taken over guardrail maintenance more than a week earlier and
because Peck did not know the condition of the rail at the time of the inspection.

Judge James H. Barkley rejected both arguments. An employer cannot contract away
its duties under the Act, and because Peck offered no evidence the rail had ever
been installed correctly, and admitted it was hung loose on purpose to keep the
concrete forms plumb, the judge concluded Peck installed it in the sagging
condition and knew of the violation. The single serious item under
§ 1926.502(b)(1) was affirmed. The judge cut the proposed $900 penalty to $450,
finding the government overstated gravity by also counting a second guardrail
that was only four inches too high, a deviation he did not consider serious.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.502(b)(1)
• Outcome: Single serious item affirmed; penalty reduced from $900 to $450
• Key point: A subcontractor that creates a fall hazard stays liable for it even after another contractor contractually takes over maintenance, and hanging a guardrail loose on purpose is knowledge of the violation.

Full text (OSHRC public release)

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

                                                    Phone: (202) 606-5 100
                                                     Fax: (202) 606-5050
SECRETARY      OF LABOR
                 Complainant,
         v.                                                       OSHRC DOCKET
                                                                  NO. 95-0362
PECK AND HITLER CO.
              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 February 20, 1996. The decision of the Judge
will become a final order of the Commission on March 21, 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 petition should be received by the Executive Secretary on or before
March ll., 1996 in order to ermit 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. 2003603419
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 th e Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
                                         FOR THE CQMmON                ,,


Date: February 20, 1996                  Ray      D arling, Jr
                                         Execu7 ‘ive Secret ati
DOCKET NO. 95-0362
NOTICE IS GIVEN TO THE FOLLOWING:



Rochelle Kleinberg
Assoc. Re ional Solicitor
Office of ta e Solicitor, U.S. DOL
1111 Third Avenue, Suite 945
Seattle, WA 98101



Robert D. Peterson, Esq.
3300 Sunset Boulevard - Suite 110
Sunset Whitne Ranch
Rocklin, CA 9? 677



James H. Barkley
Administrative Law Jud e
Occupational Safety an f Health
  Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO l 0204 3582




00109426569: 10
                                                UNITED   STATES OF AMERICA
                    OCCUPATIONAL          SAFETY AND HEALTH REVIEW COMMISSION
                                               1244 N. Speer Boulevard
                                                      Room 250
                                             Denver, Colorado 80204-3582


PHONE
COM (303) 9444409                                                          2k (303)8444759
-wfm-                                                                      ns (303)844-3759




  SECRETARY OF LABOR,
                          Complainant,
                                V.                              OSHRC DOCKET NO. 95-0362
  PECK AND HILLER COMPANY,
                          Respondent.


APPEARANCES:

           For the Complainant:
                    Rochelle Kleinberg, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, Washington

           For the Respondent:
                    Robert D. Peterson, Esq., Rocklin, California

Before:              Administrative Law Judge: James H. Barkley

                                               DECISION AND ORDER

           This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section
65 1 et seq. ; hereafter called the “Act”).
           Respondent, (Peck), at all times relevant to this action maintained a place of business at Everett
Naval Station, Everett, Washington, where it was engaged in concrete form shoring. Respondent admits
it is an employer engaged in a business affecting commerce and is subject to the requirements of the Act.
           On February 6, 1995 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Peck’s Everett work site . As a result of that inspection, Peck was issued citations alleging
violations of the Act together with proposed penalties. By filing a timely notice of contest Peck brought
this proceeding before the Occupational Safety and Health Review Commission (Commission).
           On November 9, 1995, a hearing was held in Seattle, Washington, and this matter is ready for
disposition.
           On February 6, 1995, in response to an employee complaint, Compliance Officer (CO) Michael
Bonkowski conducted an inspection of a work site at the bachelor enlisted quarters of the Everett Naval
Station (Tr. 6). On the third floor, Bonkowski found a wire rope guardrail which was installed 49 inches
above the top of the rebar floor (Tr. 1O-11). A second wire rope guardrail was very slack, and sagged f!iom
44” at its points of attachment to within 30” of the floor midway between its two supporting columns (Tr.
11-12). Eight employees of the steel erection contractor on the project, Carbek Steel, were exposed to the
hazardous condition (Tr. 12).
           At the time of the inspection, Peck’s employees were working on the second floor building
formwork (Tr. 13). CO Bonkowski did not speak to any Peck employees regarding the third floor
guardrails, but discussed the fall protection they were using on the second floor (Tr. -13,24,44).   In that
location     all the Peck employees were properly using body harnesses or were working inside properly
installed guardrails (Tr. 24).    Peck had finished working on the third floor more than a week prior to the
@HA inspection; the was no evidence that any Peck employees had been in the area since (Tr. 29,40,43).
Bonkowski stated that Peck’s superintendent told him the lines on the third floor had been installed more
loosely than those on the second floor because of problems with the lines pulling the vertical concrete
forms out of plumb (Tr. 26). Bonkowski admitted he made no effort to determine whether the slack wire
rope was, at the time of the inspection, in the same condition in which it had been installed (Tr. 41, 5 1).
           The general contractor, Mortenson, was contractually responsible for maintaining the guardrails
once Peck had ceased using them for their own employees (Tr. 40,48,63,66).


                                     Alleged Violation of $1926.502(b)(l)

           Citation 1, item 1 alleges:

29 CFR 1926.502(b)(l): The top edge height of top rails, or equivalent guardrail system members, was not
42 inches (1.1 m) plus or minus 3 inches (8 cm) above the walking/working level:

a.) The guardrail on the west side of the third floor north wing of the BEQ was 49 inches above the rebar.

b.) The top rail of the wire rope guardrail along the north side of the third floor north wing of the BEQ was
so loose that, under its own weight, it deflected to within 30 inches of the walking surface.
       The cited standard provides:

       (b) “Guardrail systems.” Guardrail systems and their use shall comply with the following
       provisions: (1) Top edge height of top rails, or equivalent guardrail system members, shall be 42
       inches (1.1 m) plus or minus 3 inches (8 cm) above the walking/working level. When conditions
       warrant, the height of the top edge may exceed the 45-inch height, provided the guardrail system
       meets all other criteria of this paragraph.

Discussion
        In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with
the cited standard, (3) employees had access to the violative condition and (4) the cited employer either
knew or should have known of the condition with the exercise of reasonable diligence. See, e.g., Walker
Towirzg Corp., 14 BNA OSHC 2072,2074,1991-93 CCH OSHD 729239, p. 39,157 (No. 87-1359, 1991),
citing Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126,2129, 1981 CCH OSHD 725,578, pp.
3 1,899.3 1,900 (No. 78-6247, 198 1).
        The record establishes that the cited conditions were in violation of $1926.502(b)( 1). Moreover,
the record establishes the exposure of Carbek Steel’s employees. The Commission has specifically held
that it will impose liability on a subcontractor who creates or has control over a hazard even though only
the employees of other subcontractors are exposed to the hazard. Flint Engineering & Construction Co.,
15 BNA OSHC 2052, 1992 CCH OSHD 729,923 (No. 90.2873,1992).’                           Peck, however, maintains that
the Secretary failed to show that Peck had knowledge of the violative conditions, contending that
Mortenson, the general contractor, had contractually assumed control over the guardrails’ maintenance
over a week prior to the OSHA inspection.
        First, it is well settled that an employer may not contract out of its statutory responsibilities under
the Act. Arming-Johnson Co., 4 BNA OSHC 1193,1198 n.l3,1975-76 CCH OSHD 120,691 (Nos. 3694
& 4409, 1976). As the Fifth Circuit stated in Brock v. City Oil Well Service, Co., 795 F.2d 507 (5th Cir.
1986), the employer may elect to ensure the protection of employees by contracting out with others;
however, the duty to provide the protection remains the employer’s. “p]f it does so and if those duties are
neglected. . .he must take the consequences, and his further remedy lies against the private party with



            ’ Though the circuits are split on the Commission’s application of the multi-employer doctrine, See,
   Anthony Crane Rental, Inc., v. Reich, NO. , (D.C. Cir. December 1, 1995). [slip opinion], the ninth circuit has
   adopted it. See, Beatty Equip. Leasing, Inc. v. Secretary of Labor, 577 F.2d 534 (9th Cir. 1978).

                                                             3
whom he has contracted and whose breach exposes the employer to liability.” Id. at 5 12, citing Central
of Georgia Railroad Company v. OSHRC, 576 F.2d 620, 625 (5th Cir. 1978). Despite its contractual
arrangements with Mortenson, therefore, Peck remained responsible for hazards stemming from the
guardrails it erected.
        Secondly, although Peck claims lack of knowledge of the condition of the third floor guardrails at
the time of the OSHA inspection, at the hearing Peck’s counsel ftiled to introduce any evidence regarding
the condition of the guardrails at the time that they were initially installed. Moreover, Peck admitted that
the guardrails were loosely installed to avoid pulling the concrete forms out of plumb. Absent any
evidence that the guardrails were initially installed correctly, this judge can only conclude that the
guardrails were initially installed in the condition observed by CO Bonkowski, and that Peck had
knowledge of the violation.
     . The Secretary has established the cited violation.
        Having af&med the citation on the basis of the sagging guardrail, it is unnecessary to discuss the
other allegation that a second guardrail was installed 4” too high. Assuming the existence of that violation,
however, it is my view that such deviation from the specifications is not a “serious” violation.
PenaZty
        The Secretary proposes a penalty of $900.00. CO Bonkowski established that a fall 25 feet from
the third floor over the sagging guardrail would likely suffer broken bones and hospitalization, or death
(Tr. 27). That violation was properly classified as “serious.” Bonkowski believed the probability of an
accident occurring was low and classified the gravity of the violation as moderate (Tr. 27). Deductions
were allowed for size, good faith and prior history (Tr. 28).
        To the extent the proposed penalty includes a portion for the guardrail of excessive height, the
gravity is overstated. Accordingly a penalty of $450.00 is assessed.
                                             ORDER

1.       Citation 1, item 1, alleging violation of 5 1926.502(b)( 1) is AFFIRMED, and a penalty of
$450.00 is ASSESSED.




Dated:   February   9,   1996




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