David Weekley Homes

Plain-English summary

David Weekley Homes was the general contractor for residential construction at the Horizon Pointe development in Colorado. OSHA cited Weekley for nine conditions grouped into six willful items involving its safety program, hard hats, scaffold support, fall protection, guardrails, training, and ladders, even though none of Weekley's employees performed construction work or were exposed. The ALJ affirmed the items as serious and assessed $9,000, but the Commission vacated the citation in full without deciding whether the multi-employer worksite doctrine was valid. For the safety-program item, the Secretary did not show that Weekley's limited site presence and its actual practice of reporting observed hazards were insufficient. For the training item, the Secretary did not define what Weekley had to do to ensure that a lower-tier subcontractor trained its own employees. The remaining conditions were brief, of uncertain duration, or not readily visible, so the Secretary did not prove that Weekley could have discovered them through reasonable diligence. Commissioner Visscher agreed with vacatur but would also have held that the cited standards did not impose the claimed duty on the general contractor.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.20(b)(1), § 1926.100(a), § 1926.451(y)(5), § 1926.501(b)(13), § 1926.502(b)(1), § 1926.502(b)(2), § 1926.503(a)(1), § 1926.1053(b)(1), and § 1926.1053(b)(16)
• Outcome: Vacated. The Commission reversed the ALJ and vacated all six citation items, eliminating the $9,000 assessed penalty.
• Key point: A controlling-employer theory does not remove the Secretary's burden to define the cited duty and prove that the general contractor knew or reasonably could have known of each violative condition.

Full text (OSHRC public release)

SECRETARY OF LABOR,


      Complainant,


       v.                                          OSHRC Docket No. 96-0898


DAVID WEEKLY HOMES,


      Respondent.




                                        DECISION
Before: ROGERS, Chairman; VISSCHER and WEISBERG, Commissioners.
BY THE COMMISSION:
       On June 10, 1996, David Weekley Homes (“Weekley”) was issued a willful citation
stemming from the inspection of a worksite located at the Horizon Pointe development
(“Horizon Pointe”) in Westminster, Colorado. Weekley is a general contractor who was
engaged in the construction of residential homes at Horizon Pointe. At the time of the
inspection, two houses were in the process of being framed. For this part of the project,
Weekley had contracted with Dave Axt Construction (“Dave Axt”) to serve as the general
framing contractor. Dave Axt, in turn, had contracted with Axt Construction to serve as
project manager, and three subcontractors Genuine Construction, Handyman Hank, and
Leon Siding to perform the actual framing work.
       Under the citation, the Secretary alleged six willful violations of various construction
standards relating to safety programs, hard hats, scaffolds, fall protection, and ladders. A
total penalty of $221,500 was proposed. All but one of the alleged violations were created
by one or more of the three framing subcontractors, none of whom had a contractual
                                              2

relationship with Weekley.1 None of Weekley’s own employees were exposed to the alleged
hazards.
       The Secretary argued that as general contractor, Weekley was the “controlling
employer” at the worksite and therefore, could be held responsible under the multi-employer
worksite doctrine for the safety of all onsite employees, including those of the framing
subcontractors. In response, Weekley claimed that its subcontractors were solely responsible
for the safety of their own employees. Weekley also challenged the validity of the multi-
employer worksite doctrine and argued that the Secretary had failed to prove the company
had knowledge of the cited conditions.
       Judge Sidney Goldstein affirmed all six of the alleged violations. He concluded that
Weekley had “controlling authority” over the subcontractors’ employees at Horizon Pointe,
noting that “[t]he duty of a general contractor is not limited to the protection of its own
employees from safety hazards, but...extends to the protection of all employees engaged at
the work site.” The judge also found that Weekley had knowledge of the cited conditions,
stating that “[i]f the violations were seen by the compliance officer, they surely were in view
of Weekley’s representatives.” However, the judge characterized the violations as serious,
not willful, finding that Weekley’s belief that “the various subcontractors should be the only
employers concerned with [the] safety of their workers” was not, by itself, evidence of a total
disregard for employee safety. In recognition of a disparity between the penalties proposed
for Weekley and those assessed of the “creating” subcontractors for the same violations, the
judge assessed for each serious violation a penalty of $1,500, for a total penalty of $9,000.
       On review, Weekley has again disputed the validity of the multi-employer worksite
doctrine, as well as the finding of knowledge on Weekley’s part.2 However, in deciding the



1
 Weekley was considered the “creating” employer of the safety program violation set forth
under the first citation item.
2
  Weekley also filed a motion for oral argument. However, upon review of the record, the
judge’s decision, and the briefs, we conclude that oral argument is unnecessary.
                                                3

current case, we need not reconsider the applicability or validity of the doctrine. Even if we
assume that under Commission precedent, the multi-employer worksite doctrine has been
properly applied to Weekley, we find that the Secretary has not met her burden of proving
the alleged violations, as discussed below.


                             SAFETY PROGRAM VIOLATION
         The Secretary alleged that Weekley violated § 1926.20(b)(1) by failing to implement
its safety program at Horizon Pointe.3 Specifically, the Secretary claims that Weekley failed
to “inspect the jobsite regularly to provide a safe and healthful workplace for subcontractor
employees.” Weekley does not deny that it never conducted safety inspections at Horizon
Pointe, but maintains that it was not Weekley’s responsibility to ensure the safety of its
subcontractors’ employees. For the following reasons, we vacate this item.
         First, there is no question that Weekley had only a limited presence at Horizon Pointe.
Four Weekley employees were assigned to the project: Matt Clark, Jim Wilson, and Robert
Horn, all of whom worked as job site superintendents, also known as “builders;” and Mark
Almquist, a project manager. None of these employees performed any construction work.
In addition to managing other Weekley projects, Almquist was primarily responsible for
supervising the builders assigned to Horizon Pointe.4 He visited Weekley’s trailer at the
development “probably every day, usually...stopping at least a couple times,” but was not
required by Weekley to perform any type of inspections on these occasions.


3
    The cited provision requires as follows:
         § 1926.20 General safety and health provisions.
         (a) Contractor requirements.
         ....
         (b) Accident prevention responsibilities.
         (1) It shall be the responsibility of the employer to initiate and maintain such
         programs as may be necessary to comply with this part.
4
 Almquist also testified that he had the authority to remove any employee engaging in unsafe
work practices from the worksite and to withhold payment from Weekley’s subcontractors.
                                               4

       The three builders were primarily responsible for scheduling and coordinating the
various subcontractors, like Dave Axt, engaged in building homes for Weekley. Like
Almquist, they were responsible for other Weekley projects, but one of the builders visited
the Horizon Pointe worksite at least twice a day in order to open the homes in the morning,
lock them up at night, and verify that the scheduled work crews and necessary materials
were present. The builders were also required to inspect a house whenever payment was due
to a subcontractor in order to determine whether Weekley’s specifications had been met. 5
       Secondly, the record shows that Weekley expected its onsite representatives to play
a role in maintaining a safe worksite for the benefit of all employees, including those of other
employers, notwithstanding Weekley’s claims that it was not responsible for the safety of
its subcontractors’ employees. In its safety program, Weekley acknowledged that its
builders were not a constant presence on any of its worksites, but stated that “[w]hen a
builder is on the job site he/she should be alert to observe job site hazards and to require
corrective action from the appropriate subcontractor.” Weekley also required builders to
seek corrective action from the appropriate subcontractor for hazards about which Weekley
was notified. To enable its builders to better recognize worksite hazards, Weekley provided
them with training on the requirements of OSHA’s construction standards, an effort which
was consistent with the company’s safety policy: “It is the obligation of all employees to be
knowledgeable of the [safety] standards established by [federal, state and local] agencies and
to implement the rules and regulations contained therein on projects under their direction.”
       In arguing that Weekley was responsible for conducting “regular” safety inspections
at Horizon Pointe, the Secretary cites to additional language from Weekley’s safety program
found under a section entitled “Job Site Safety:”

5
  At the hearing, the Secretary seemed to place significance on the fact that Weekley’s
framing specifications required builders to walk through a house a minimum of three times
a day in order to “answer any questions and spot potential problems that can be corrected
before the [framing] job is complete.” However, according to the record, these walk-
throughs were not necessarily done every day and could take place during the builder’s
morning and afternoon visits to the worksite.
                                              5

              As general contractor, it is our responsibility to insure that
              outside subcontractors correct any job site hazards that we
              observe or that are called to our attention.
Relying on Weekley’s stated position that it was not responsible for the safety of its
subcontractor employees, the Secretary claims that Weekley failed to fulfill this
“responsibility” at Horizon Pointe. But the Secretary has ignored evidence in the record
which establishes that Weekley did, in fact, notify subcontractors when hazardous conditions
were observed or brought to its attention, and that the subcontractors immediately complied
with Weekley’s requests for corrective action. For instance, Weekley’s safety coordinator,
Gary Bryant, testified that on one occasion when he was accompanying builder Robert Horn
on a walk-through at Horizon Pointe, a subcontractor’s employees were observed using a
job-built ladder. According to Bryant, Horn promptly located the appropriate subcontractor
and the ladder was destroyed.
       Similarly, upon receiving inspection warrants from OSHA on two different occasions,
each of which referenced potential fall hazards at Horizon Pointe, Weekley contacted the
appropriate subcontractors to alert them to the problem. In fact, safety coordinator Bryant
testified that he met with Dave Axt personally after receiving the second warrant (which
ultimately led to the issuance of the subject citation) to “remind” him of his company’s
contractual obligation to comply with the Act.6 In addition, Bryant specifically told Axt that
OSHA had fall protection concerns.
       Finally, in focusing solely upon Weekley’s disavowal of legal responsibility for the
employees of its subcontractors, the Secretary has failed to address how Weekley’s actual
efforts with regard to safety notwithstanding its limited presence were deficient under the
terms of the standard. The Commission has stated that “[u]nder § 1926.20(b)(1), ‘an
employer may reasonably be expected to conform its safety program to any known duties[,]


6
 Paragraph 11 of Weekley’s contract with Dave Axt provided that Dave Axt agreed to
comply with various legal and regulatory requirements, including those set forth under the
Act.
                                              6

and...a safety program must include those measures for detecting and correcting hazards
[that] a reasonably prudent employer similarly situated would adopt.’” Lancaster Enterp.
Inc., 19 BNA OSHC 1033, 1034 (No. 97-0771, 2000) (citation omitted). Here, compliance
officer Nelson simply testified that as general contractor, Weekley was required to do
“something” under § 1926.20(b)(1) to ensure OSHA compliance on the worksite, but was
unable to identify what that “something” should have been: “It would depend on the
situation. Whatever it takes to verify compliance with the regulation[s] and that the
employees are working safely on the job site.” When asked specifically whether Weekley
should have conducted safety inspections three times a day, Nelson suggested that such
matters were within Weekley’s own discretion: “If that’s what they want to do to [e]nsure
compliance, then that is their option.” We find on this record that the Secretary has not
shown that Weekley’s conduct was insufficient, particularly in light of the combination of
its limited onsite presence and actual exercise of safety responsibilities. Accordingly, we
conclude that a violation of § 1926.20(b)(1) has not been established.


                    FALL PROTECTION TRAINING VIOLATION
         Under this item, the Secretary alleged that Weekley violated § 1926.503(a)(1) by
failing to “ensure” that Handyman Hank, one of the framing subcontractors working at
Horizon Pointe, had developed and provided training to its employees in the recognition and
avoidance of fall hazards.7 The Secretary relies on compliance officer Nelson’s testimony
that Weekley builders Wilson and Horn were not familiar with the fall protection programs
of any subcontractor at Horizon Pointe. According to project manager Almquist, such


7
    The cited provision requires as follows:
         § 1926.503 Training requirements.
         (a) Training Program.
         (1) The employer shall provide a training program for each employee who
         might be exposed to fall hazards. The program shall enable each employee to
         recognize the hazards of falling and shall train each employee in the
         procedures to be followed in order to minimize these hazards.
                                              7

inquiries were not made because the employees of Weekley’s subcontractors “were not our
responsibility.”
       We find that the Secretary has not shown what was required of Weekley under the
terms of the cited standard. Specifically, it is not clear whether the Secretary would have
had Weekley simply determine whether Handyman Hank, a subcontractor with whom
Weekley had no contractual relationship, had a fall protection training program, or would
have required Weekley to make a more detailed inquiry in order to verify whether the
subcontractor had a program that effectively covered all of the fall protection requirements
set forth under Subpart M. Furthermore, the Secretary has not addressed whether “ensuring”
that its subcontractor’s employees had received fall protection training meant that Weekley
itself was required to develop and provide such training even though such a program would
not be required for its own employees, none of whom were ever exposed to fall hazards.8
We also note that when Weekley did become aware of fall hazards, as referenced in the
OSHA warrant, it addressed the problem with Dave Axt, the general framing contractor.
Because the Secretary has failed to define what would have constituted compliance for
Weekley under the circumstances and how Weekley’s conduct was deficient, we conclude
that a violation of § 1926.503(a)(1) has not been established.


                             SUBSTANTIVE VIOLATIONS
       With regard to the remaining violations set forth under citation items 2, 3, 4a, 5a, 5b,
6a and 6b, we find that the Secretary has failed to establish knowledge on Weekley’s part.
The Secretary does not dispute that Weekley lacked actual knowledge of these violations,


8
 In Access Equipment Systems, 18 BNA OSHC 1718, 1730, 1999 CCH OSHD ¶ 31,821, p.
46,786 (No. 95-1449, 1999), the Commission vacated a training violation cited under
§ 1926.21(b)(2), noting that it was unaware of any case holding a cited employer responsible
under the multi-employer worksite doctrine for failing to instruct another employer’s
employees under § 1926.21(b)(2). However, we note that that particular citation item
involved the relationship between two subcontractors on a worksite, not between a general
contractor and a subcontractor as here.
                                                 8

but contends that Weekley could have known of the cited conditions with the exercise of
reasonable diligence. However, in concluding that the violations “surely were in view” of
Weekley’s representatives since they were seen by compliance officer Nelson, the judge
failed to consider the nature, location, and duration of these conditions. Indeed, Weekley
can only be held responsible for those violations “which it could reasonably be expected to
prevent or detect.” Centex-Rooney Constr. Co., 16 BNA OSHC 2127, 2130, 1993-95 CCH
OSHD ¶30,621, p. 42,410 (No. 92-0851, 1994); Blount Intl. Ltd., 15 BNA OSHC 1897,
1899, 1991-93 CCH OSHD ¶29,854, p. 40,749-50 (No. 89-1394, 1992); Red Lobster Inns
of America, Inc., 8 BNA OSHC 1762, 1763, 1980 CCH OSHD ¶ 24,636, p.30,220 (No. 76-
4754, 1980); Gil Haugan d/b/a Haugan Constr. Co., 7 BNA OSHC 2004, 2006, 1979 CCH
OSHD ¶ 24,105, p. 29,290 (No. 76-1512, 1979).
         A review of the record reveals that most of the substantive conditions for which
Weekley was cited were of brief or indeterminate duration. For instance, compliance officer
Nelson observed two Handyman Hank employees working without hard hats and fall
protection on the second floor of one of the houses being framed (citation items 2 and 4a),
but gave no indication of how long the employees were working without these safeguards.9

9
    These conditions were cited under § 1926.100(a) and § 1926.501(b)(13), respectively:
         § 1926.100 Head Protection
         (a) Employees working in areas where there is a possible danger of head injury
         from impact, or from falling or flying objects, or from electrical shock and
         burns, shall be protected by protective helmets.
         ....
         § 1926.501 Duty to have fall protection.
         (a) General.
         ....
         (b)(1) Unprotected sides and edges.
         ....
         (13) Residential construction. Each employee engaged in residential
         construction activities 6 feet (1.8 m) or more above lower levels shall be
         protected by guardrail systems, safety net system, or personal fall arrest system
         unless another provision in paragraph (b) of this section provides for an
                                                                                    (continued...)
                                                9

Four additional instances of insufficient fall protection were observed by Nelson at both of
the houses in question (citation item 4a), but one instance lasted no more than five minutes
and the duration of the others was not clear. It is also not apparent from the record how
long guardrails placed around a stairway opening10 and a window opening at one of the
houses existed in their non-compliant conditions (citation items 5a and 5b).11 Finally,
Nelson observed a damaged ladder (citation item 6b) chained to a pump jack scaffold located
at the back of one of the houses, but failed to state how long the ladder had remained in this




9
(...continued)
       alternative fall protection measure. Exception: When the employer can
       demonstrate that it is infeasible or creates a greater hazard to use these
       systems, the employer shall develop and implement a fall protection plan
       which meets the requirements of paragraph (k) of § 1926.502.
10
  We note that compliance officer Nelson agreed at the hearing that the condition of the
guardrail in this location could be considered “latent [in] that you would have to look for [it]
in order to find [it].”
11
     These conditions were cited under § 1926.502(b)(1) and (b)(2), respectively:
         § 1926.502 Fall protection systems criteria and practices.
         (a) General.
         ....
         (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.
         ....
         (2) Midrails, screens, mesh, intermediate vertical members, or equivalent
         intermediate structural members shall be installed between the top edge of the
         guardrail system and the walking/working surface when there is no wall or
         parapet wall at least 21 inches (53 cm) high.
                                                 10

location.12 Even if Weekley had maintained a constant presence at Horizon Pointe, the
Secretary has failed to show that these conditions were present for a sufficient amount of
time such that, with the exercise of reasonable diligence, Weekley could have discovered
their existence. Cf. R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815, 819-20 (6th Cir.
1998) (general contractor liable for subcontractor’s lack of fall protection where condition
was in plain view and lasted for two weeks); Centex-Rooney, 16 BNA OSHC at 2130, 1994
CCH OSHD at p. 42,410 (where conditions were in plain view and existed for a significant
period of time, general contractor could have ascertained their existence through the exercise
of reasonable diligence).
          The two remaining conditions, set forth under citation items 3 and 6a, were of some
duration, but were not obvious or in plain view such that Weekley’s representatives could
have known of their existence during their visits to the worksite. Compliance officer Nelson
observed two employees of Leon Siding working on a pump jack scaffold without “mud
sills,” a type of footing which prevents the scaffold’s poles from shifting in loose or wet soil
(citation item 3).13 According to Nelson, the scaffold was in place for over a day at the back

12
     This condition was cited under § 1926.1053(b)(16), which requires as follows:
          § 1926.1053 Ladders
          (a) General.
          ....
          (b) Use.
          ....
          (16) Portable ladders with structural defects, such as, but not limited to, broken
          or missing rungs, cleats, or steps, broken or split rails, corroded components,
          or other faulty or defective components, shall either be immediately marked
          in a manner that readily identifies them as defective, or be tagged with “Do
          Not Use” or similar language, and shall be withdrawn from service until
          repaired.
13
     This condition was cited under § 1926.451(y)(5) which requires as follows:
          § 1926.451 Scaffolding.
          (a) General requirements.
          ....
                                                                              (continued...)
                                                  11

of one of the houses in question and was visible from Weekley’s trailer, as well as from the
street running along the front and side of the corner-lot house. However, based upon
photographs of the scaffold which show the inconspicuous location of the missing mud sills,
we are not persuaded that a Weekley representative could have readily detected this
condition even if he had walked directly past the scaffold on the day in question.
          Similarly, Nelson testified that a ladder which did not extend the required three feet
above the second floor of one of the houses (citation item 6a) was placed just inside the front
entry on two consecutive days.14 Since only the first floor of the house was fully framed, the
ladder extended above the second floor and was visible, according to Nelson, from about a
block away. However, we find that the photographs submitted in support of this violation
simply do not support Nelson’s claims regarding the ladder’s visibility, let alone the


13
 (...continued)
       (y) Pump jack scaffolds.
       ....
       (5) All poles shall bear on mud sills or other adequate firm foundations.

In 1996, two months after the subject citation was issued, § 1926.451 was revised and
subsection (y)(5) was deleted. See 61 Fed. Reg. 46,026, 46,078 (August 30, 1996). This
requirement is currently set forth at § 1926.451(c)(2).
14
     This condition was cited under § 1926.1053(b)(1) which requires as follows:
          § 1926.1053 Ladders
          (a) General.
          ....
          (b) Use. The following requirements apply to the use of all ladders, including
          job-made ladders, except as otherwise indicated:
          (1) When portable ladders are used for access to an upper landing surface, the
          ladder side rails shall extend at least 3 feet (.9 m) above the upper landing
          surface to which the ladder is used to gain access; or, when such an extension
          is not possible because of the ladder’s length, then the ladder shall be secured
          at its top to a rigid support that will not deflect, and a grasping device, such as
          a grabrail, shall be provided to assist employees in mounting and dismounting
          the ladder. In no case shall the extension be such that ladder deflection under
          a load would, by itself, cause the ladder to slip off its support.
                                               12

visibility of its violative condition.    Accordingly, we conclude that Weekley lacked
knowledge of all of the substantive conditions for which it was cited.


                                           ORDER
       For the foregoing reasons, we reverse the judge’s decision to affirm Items 1 through
6 of Citation 1 and vacate the citation in its entirety.


                                                           /s/

                                                           Thomasina V. Rogers
                                                           Chairman



                                                           /s/

                                                           Stuart E. Weisberg
Dated: September 28, 2000                                  Commissioner
VISSCHER, Commissioner, concurring:
       I join the majority in vacating the citations issued against David Weekley Homes
(“Weekley”) at issue in this case. I would vacate the citation alleging violation of 29 C.F.R.
§ 1926.20(b)(1) for the reasons given in the majority opinion. As to the other citations, while
I agree with the majority that the Secretary has not proven that Weekley had knowledge of
the violative conditions, I would not have reached the knowledge issue, but would hold that
the cited standards do not apply.
       In my dissent today in McDevitt Street Bovis, Inc., Docket No. 97-1918 (September
28, 2000), I explain why, in my view, a general contractor cannot be held liable for a
subcontractor’s violations simply because it failed to supervise the subcontractor to ensure
compliance. Unless the cited standard imposes such a duty to supervise, I do not believe the
Secretary can impose the duty by invoking the so called multi-employer worksite doctrine.
The standards under which Weekley was cited do not impose any such duty to supervise on
the general contractor. On that basis I would vacate the citations against Weekley for its
subcontractors’ alleged violations of 29 C.F.R. § 1926.503(a)(1)(fall protection training), §
1926.100(a) (head protection), § 1926.501 (fall protection), § 1926.1053 (ladders), and §
1926.451 (scaffolding).
       While the Commission is properly vacating the citations against Weekley, I make
special note of the method of enforcement employed by the Secretary in this case. Weekley
is a large national developer of residential subdivisions which maintained only a minimal
presence at the cited development in Westminster, Colorado. With respect to this particular
development, Weekley contracted with Dave Axt Construction to be the general framing
contractor. Dave Axt Construction in turn contracted with Axt Construction to serve as
project manager, and with subcontractors Genuine Construction, Handyman Hank, and Leon
Siding to actually perform the framing and siding work. Following the inspection, the
Secretary issued all citations in quadruplicate: one set to the subcontractor which created the
alleged violative conditions and whose employees were exposed to the alleged hazards,
another set to Axt Construction, still another set to Dave Axt Construction, and the contested
                                             2

set to Weekley. Not only did the Secretary claim that all four employers were responsible
for each violative condition, but the penalties proposed against Weekley indicate that the
Secretary considers a general contractor’s responsibility for a violative condition to be far
greater than that of the employer who is directly responsible for the condition and whose
employees are exposed to the hazard. For instance, for the failure of Handyman Hank
employees to wear hardhats, Weekley was issued a proposed penalty of $49,500, while
Handyman Hank received a proposed penalty of $225. For Handyman Hank’s failure to
install proper guardrails on an interior stairway, the proposed penalty against Weekley was
$49,500, while the proposed penalty against Handyman Hank was $300. For employees of
Handyman Hank using a ladder that did not extend 3 feet beyond the upper landing,
Weekley’s proposed penalty was $24,750, while Handyman Hank’s was $300. While Leon
Siding was issued a proposed penalty of $300 for using a damaged ladder, the Secretary
proposed a penalty of $24,750 against Weekley for the same violation. As there is no basis
in any of these standards for a general contractor’s duty to supervise, there is certainly no
basis for the Secretary to place far greater weight on the general contractor’s duty to
supervise than on the direct employer’s unqualified duty to comply.




                                                  /s/
                                                  Gary L. Visscher
                                                  Commissioner


Date: September 28, 2000
SECRETARY OF LABOR,
     Complainant,
                  v.

                                                 OSHRC DOCKET NO. 96-0898


DAVID WEEKLEY HOMES,


       Respondent.


APPEARANCES:

                       Evert H. Van Wijk, Esq., Office of the Solicitor, U.S. Department of Labor,
                        Kansas City, Missouri

                       Robert E. Rader, Esq., Rader, Campbell, Fisher & Pyke, Dallas, Texas


Before:        Administrative Law Judge Sidney J. Goldstein


                                     DECISION AND ORDER

       This is an action by the Secretary of Labor to affirm a “Willful” citation issued to the
Respondent by the Occupational Safety and Health Administration for alleged violations of a series
of safety regulations relating to the construction industry. The matter arose after a compliance
officer for the Administration inspected two work sites of the Respondent, concluded that it violated
the safety regulations, and recommended that the citation be issued. The Respondent disagreed with
the citation and filed a notice of contest. After a complaint and answer were filed with this
Commission, a hearing was held in Denver, Colorado.
        The citation alleged (1) that the employer did not initiate and maintain a safety and health
program for residential construction; (2) that employees were not protected by helmets while
working where there was danger of head injury; (3) that poles of pump jack scaffold(s) were not
bearing on mud sills or other adequate firm foundations; (4) that employees engaged in residential
construction activities six feet or more above the lower levels were not protected from fall hazards;
(5) that the employer did not provide a training program which enabled employees to recognize and
minimize the hazards of falls; (6) that guardrails did not have a vertical height of 42 inches; (7) that
midrails or equivalent were not provided between the top edge of the guardrail system and the
walking working surface; (8) that the portable ladder’s length did not extend at least three feet above
the upper landing surface; and (9) that portable ladders with structural defects were not withdrawn
from service, all in violation of the regulations found in 29 C.F.R. ¶1926.20(b)(1); ¶1926.100(a);
¶1926.451(y)(5);     ¶1926.501(b)(13);     ¶1926.503(a)(1);     ¶1926.502(b)(1);     ¶1926.502(b)(2);
¶1926.1053(b)(1); ¶1926.1053(b)(16), respectfully.
        The material facts are not in substantial dispute and may be briefly summarized. At the time
of the inspection the Respondent was engaged in the construction of two homes in the Denver,
Colorado area. It acted as a general contractor subcontracting construction activity to other
employing units. Framing was subcontracted to Dave Axt Construction who, in turn, selected Axt
Construction as project manager, Genuine Construction and Handyman Hank as framing
subcontractors, and Leon Siding as siding subcontractor. No Respondent employee was engaged
in construction work.
        At the hearing the compliance officer testified that he observed infractions of the regulations
at the work sites and took photographs of the houses under construction. As a result of his
inspections the subcontractors were issued “Serious” citations for these violations with
recommended penalties in the $4,000.00 to $5,000.00 range, all of which citations were settled for
substantially lesser amounts.
The Respondent received a “Willful” citation with a penalty of $221,500.00 because its
representative understood that his company was not responsible for the misdeeds of other employers.
       Documents in the record include the Respondent’s safety rules and policies, recognizing its
responsibility to insure that outside subcontractors correct any job hazards that are observed or
called to its attention. In its safety program, employees are admonished that safety is the result of
careful attention to all company operations by those who are directly or indirectly involved, and
company builders are to be alert to observe jobsite hazards and to require corrective action.
       On these factors, the Complainant’s position is that the Respondent was in violation of the
safety regulations despite the fact that its employees were not working at the jobsite. The
Respondent disclaims responsibility for the safety infractions on the grounds that the workers were
not its employees; and that the violations were created by the subcontractor whose workers were the
only individuals exposed to any danger.
       The question whether a contractor may be held in violation of a safety regulation although
it had no employees at the jobsite has been before the Commission in the past. On this point the
Commission rejected the idea that liability under the Occupational Safety and Health Act of 1970
should be based solely on the employment relationship. And in the case of Brennan v. Occupational
Safety and Health Review Commission (Underhill Construction Corporation), 513 F.2d 1032, the
court held that an employer’s specific duty to comply with the Secretary’s standards is in no way
limited to situations where a violation of a standard is linked to exposure of his employees to the
hazard. It is a duty over and above his general duty to his own employees.
       General contractors normally have the responsibility and means to assure that other
contractors fulfill their obligations with respect to employee safety. The Commission has stated that
it will hold a general contractor responsible for safety standard violations which it could have
reasonably have been expected to prevent or
abate by reason of supervisory capacity. The duty of a general contractor is not limited to the
protection of its own employees from safety hazards, but it extends to the protection of all
employees engaged at the work site.
       While the subcontractors had authority to control their employees, the Respondent also had
controlling authority over these workers. Admittedly, the violations were not created by the
Respondent, and none of its workers were exposed to the dangers. However, both the Commission
and the courts have held that overall responsibility for the safety of all workers on the project is in
the general contractor’s province.
       The Respondent asserts that there was no admissible evidence of actual knowledge of the
violations. However, the inspector observed and photographed the work sites and spoke with
company representatives. The evidence also discloses that the builders visited each work site a
minimum of twice daily. Also under company rules they were required to look for safety
infractions. If the violations were seen by the compliance officer, they surely were in view of
Respondent’s representatives.
       With respect to the individual items of the citation, the compliance officer was informed that
some of the subcontractors did not initiate or maintain a safety program. Their employees were not
protected by helmets where there was danger of head injury. Poles of jump jack scaffolding did not
have an adequate firm foundation, and employees working six feet or more above floor levels were
not protected from fall hazards. The inspector learned there was no program enabling employees
to recognize fall hazards; that guardrails did not have the required height; that midrails or their
equivalent were not provided; that portable ladders did not extend at least three feet above the
landing surface; and that those with defects were not withdrawn from service.
       The Respondent contends that it is irrelevant whether Weekley’s builders knew or could
have known of the alleged violations, citing Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675
(5th Cir. 1975). In a one paragraph per curium opinion the court decided that it was in agreement
with a dissenting opinion of Chairman Moran
that a contractor is not responsible for the acts of his subcontractors or their employees, and that it
was unnecessary to decide the constitutionality of the Occupational Safety and Health Act of 1970
and its enforcement procedures, a matter also pending and under submission before another panel
of the court in Atlas Roofing Company, Inc. A few months after the Southeast Contractors case was
decided, Chief Judge John R. Brown of the same circuit, in a detailed decision, upheld the
constitutionality of the Act, including enforcement. Atlas Roofing Company v Secretary of Labor,
518 F.2d 990 (5th Cir. 1975).
       In sum, I find that the Respondent was in violation of the various items of the citation.
                                          Willful Violation
       The term “willful violation” has been defined as follows:
       A willful violation is one committed with intentional, knowing or voluntary
       disregard for the requirements of the Act, or with plain indifference to
       employee safety. E.g., Williams Enterprises, Inc., 13 BNA OSHC 1249,
       1256-57, 1986-87 CCH OSHD ¶27,893, p.36,589 (No. 85-355, 1987).
       It is differentiated from other types of violations by a “heightened awareness -- of the
       illegality of the conduct or conditions -- and by a state of mind -- conscious disregard or
       plain indifference.” Id.

Calang Corp., 14 BNA OSHC 1789, 1791, 1990 CCH OSHD ¶29,531 (No. 85-319, 1990).
       As noted, the compliance officer recommended and the Administration adopted his
conclusion that the infractions were willful in nature, resulting in a suggested penalty of
$221.500.00. The classification of willful was the result of the Respondent’s builder’s opinion that
the company was not responsible for the safety of the employees of the subcontractor. He believed
that the various subcontractors should be the only employers concerned with safety of their workers.
The builder’s remarks should not be equated with a total disregard of employee safety. This is
especially true where documents in the record disclose Respondent’s concern for employee safety.
         While the Respondent’s failure to comply with the regulations under consideration was not
willful, it does come within the definition of “serious” which is defined in Section 17(k) of the
Occupational Safety and Health Act of 1970, as follows:
         (k)     For purposes of this section, a serious violation shall be deemed
         to exist in a place of employment if there is a substantial probability
         that death or serious physical harm could result from a condition which
         exists, or from one or more practices, means, methods, operations, or processes which have
         been adopted or are in use, in such place of employment unless the employer did not, and
         could not with the exercise of reasonable diligence, know of the presence of the violation.
         I also conclude that serious injuries could occur if employees did not wear hard hats, if
scaffolding was not provided with mud sills in water, mud and snow, if workers worked on roofs
without fall protection, if guardrails were not of proper height, and if ladders did not extend three
feet above the landing.
         There remains the question of penalties. The Administration settled the cases in which the
subcontractors who created the hazards and who had employees subject to the dangers with
substantially reduced penalties. I believe that the penalties assigned to the Respondent should be
in the same range as those charged to the subcontractors. Accordingly, the penalties in this case
should be in the amount of $1,500.00 for each of the six items in the citation for a total of
$9,000.00.
         In summary, I find that the Respondent was in violation of the regulations as charged in the
citation; and that the citation should be reclassified as “serious” with a penalty of $9,000.00.




                                                       /s/
                                                       Sidney J. Goldstein
                                                       Judge, OSHRC

Dated:          December 1, 1997