Universal Construction Company, Inc.

Plain-English summary

Universal Construction Company, Inc. was the general contractor for a Missouri bank project. OSHA observed a subcontractor's employee working from an aerial lift without a body belt and attached lanyard, then climbing from the lift basket onto a nearby roof. Universal's own employees were not exposed, and the subcontractor created the hazards. The judge nevertheless held Universal liable under the multi-employer worksite doctrine because its field manager could observe the conduct and had authority to direct the subcontractor to correct it. The judge rejected Universal's challenge to the doctrine because Commission and Eighth Circuit precedent made supervisory control the basis for responsibility. Both serious items were affirmed, and a $1,500 total penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.453(b)(2)(iv); 29 C.F.R. § 1926.453(b)(2)(v)
• Outcome: Two serious aerial-lift items affirmed; $1,500 total penalty assessed.
• Key point: A controlling general contractor can be liable for a subcontractor's hazards when it can detect and require abatement, even if its own employees are not exposed.

Full text (OSHRC public release)

Secretary of Labor, :
Complainant, :
:
v. : OSHRC Docket No. 97-1946
:
Universal Construction Company, : (EZ)
Inc., :
Respondent. :

Appearances:

      Rachel Parsons, Esquire                                                  Roy Bash, Esquire
         Office of the Solicitor                                                  Shughart, Thomson & Kilroy
         U. S. Department of Labor                                                Kansas City, Missouri
         Kansas City, Missouri                                                                 For Respondent
              For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                     DECISION AND ORDER

      Universal Construction Company, Inc. (Universal), contests a citation issued to it by the

Secretary on October 16, 1997. The Secretary issued the citation following an inspection
conducted by Occupational Safety and Health Administration (OSHA) Compliance Officer David
Maloney on October 6, 1997. Item 1a of the citation alleges a serious violation of §
1926.453(b)(2)(iv) for failure to ensure that employees stand firmly on the floor of the basket of
an aerial lift. Item 1b of the citation alleges a serious violation of § 1926.453(b)(2)(v) for failure
to ensure that employees wear a body belt and attached lanyard when working from an aerial lift.
The Secretary and Universal submitted this case to the undersigned on stipulated facts and
exhibits.1 The issue that is the crux of this case is whether Universal, as a general contractor, is
responsible for safety violations created by a subcontractor under the multi-employer worksite
doctrine.
Stipulated Facts

      The Secretary and Universal stipulated to a series of facts regarding this case. The

following is developed from the pertinent stipulated facts.

1

Joint exhibit Nos. 1 through 11 are admitted and made part of the record.
 Universal is a general contractor engaged in the construction business. In December 1996
Universal contracted with UMB Bank to act as the general contractor for the construction of a
branch bank facility in Independence, Missouri. Ray Jeffries acted as Universal’s field manager
and Ken Sparks as its foreman on the project. Both men were present at the construction site on
October 6, 1997.
Universal entered into a subcontract with A. Zahner Sheet Metal Company (Zahner) to
perform specified portions of the work on the project. Jay Jay Yaws acted as foreman for Zahner.
He was present at the worksite on October 6, 1997.
Zahner’s employees used an aerial lift to perform their work. The lift was on the
construction site from September 25, 1997, through October 6, 1997. On October 6, 1997,
Compliance Officer Maloney observed and videotaped a Zahner employee working from an aerial
lift. The employee was not attached to the aerial lift with a body belt and lanyard, in violation of §
1926.453(b)(2)(v). The employee climbed from the basket of the aerial lift onto the roof of a
nearby structure, in violation of § 1926.453(b)(2)(iv). This violative conduct could have been
observed by both Jeffries, Universal’s field manager, and Yaws, Zahner’s foreman.
No Universal employee was exposed to hazards created by the violative conduct. Zahner
created the hazards as the result of its employee’s violative conduct, and only its employee was
exposed to the hazards.
Universal supervised the quality and quantity of work performed by the subcontractors on
the construction site. Universal’s safety manual states (Exh. C-11, p. 58):
Employees shall always stand firmly on the floor of the work platform, and shall
not sit or climb on the edge of the basket or guardrails as a work position.
...
A safety belt and lanyard shall be worn and attached to the basket while working
from an extendable or articulating boom lift.

    Universal’s field manager Jeffries and foreman Sparks had the authority to correct or

direct the subcontractors to correct any safety hazards or violations. Jeffries was in a position to
observe the actions of Zahner’s employees. Jeffries had the authority to direct Zahner’s foreman
Yaws to correct the hazards of working in the lift without a belt and lanyard and climbing out of
the lift onto the roof area.
 The Citation

   The Secretary alleges that Universal committed serious violations of §§

1926.453(b)(2)(iv) and (v), which are designated as items 1a and 1b, respectively, in the citation.
The cited standards provide:
(iv) Employees shall always stand firmly on the floor of the basket, and shall not
sit or climb on the edge of the basket or use planks, ladders, or other devices for a
work position.

   (v) A body belt shall be worn and a lanyard attached to the boom or basket when
   working from an aerial lift.

                                          Discussion

   In order to establish a violation of an occupational safety or health standard, the
   Secretary has the burden of proving: (a) the applicability of the cited standard,
   (b) the employer’s noncompliance with the standard’s terms, (c) employee access
   to the violative conditions, and (d) the employer’s actual or constructive
   knowledge of the violation (i.e., the employer either knew or, with the exercise of
   reasonable diligence could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
The parties stipulated that the cited standards apply to the cited conditions, that Zahner
was in noncompliance with the standards’terms, that Zahner’s employees had access to the
violative conditions, and that both Universal and Zahner knew or, with the exercise of
reasonable diligence, could have known of the violative conditions. The Secretary contends that,
under the multi-employer worksite doctrine, she has established that Universal was in serious
violation of §§ 1926.453(b)(2)(iv) and (v).

   The Review Commission first articulated the multi-employer worksite doctrine in the

companion cases of Anning-Johnson Co., 4 BNA OSHC 1193 (No. 3694 & 4409, 1976), and
Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, (No. 1275, 1976). In Grossman Steel,
the Commission stated:
The general contractor is well situated to obtain abatement of hazards, either
through its own resources or through its supervisory role with respect to other
contractors . . . Thus, we will hold the general contractors responsible for
 violations it could reasonably have been expected to prevent or abate by reason of
its supervisory capacity.

Id., 4 BNA OSHC at 1188.
In a long line of cases since Anning-Johnson and Grossman Steel, the Commission has
reaffirmed and expanded the multi-employer worksite doctrine. The doctrine has been the
controlling legal precedent in OSHA cases for over twenty years. It has been adopted by the
Eighth Circuit, in which the present case arises. See Marshall v. Knutson, 566 F.2d 596 (8th Cir.
1977).
Universal argues that the multi-employer worksite doctrine is “an unreasonable, arbitrary
and capricious interpretation of the Act,” and that the charges against Universal should be
dropped for this reason (Universal’s Brief, p. 1). The gist of Universal’s argument is that the
Commission strayed from the dictates of the Act, as promulgated, and ignored the Act’s
legislative history. Nothing in the legislative history or in the plain language of the Act supports
the imposition of liability on employers who did not create the violative conditions and whose
employees are not exposed to the violative conditions.
Universal concludes that (Universal’s Brief, pp. 11-12):
The primary purpose of the Act is to require employers to provide their own
employees with safe working conditions . . . [T]he Review Commission’s change
in position on the doctrine without justification demonstrates that the Secretary’s
current interpretation of the statute as imposing such liability is arbitrary and
capricious.

The undersigned could not ignore Commission and court precedent even if she were so inclined,
which she is not. The multi-employer worksite doctrine applies to this case.

     Universal argues that, if the multi-employer worksite doctrine is not rejected, then it does

not apply in the specific circumstances of this case. This is so, it contends, because the doctrine
should not be imposed on the basis of who controls the worksite.
 Universal is again at odds with the current state of OSHA law. Control is precisely the
factor that determines liability under the doctrine.
An employer is responsible for violations of other employers where it could
reasonably be expected to prevent or detect and abate the violations due to its
supervisory authority and control over the worksite.

Centenex-Rooney Construction Co., 16 BNA OSHC 2127, 2130 (No. 92-0851, 1994).
Since Universal stipulated that Zahner knew or, with the exercise of reasonable diligence,
could have known of the violative conditions, it must be presumed that Universal would
reasonably be expected to detect the violations. This being said, “control and preventability are
the keys to the applicability of the doctrine.” IBP, Inc., 17 BNA OSHC 2073, 2075 (No. 93-
3059, 1997). “Hazardous conduct by another employer’s employee clearly is not beyond the
reasonable control of all but the actual employer.” Id., 17 BNA at 2076.
The Commission in IBP directly addresses the issue of control raised by Universal (Id. at
2074-2075) (footnote omitted):
Under Commission precedent:

           [A]n employer is responsible for [the] violations of other employers
           [to which the other employers’employees alone are exposed]
           where it could be reasonably expected to prevent or detect and
           abate the violations due to its supervisory authority and control
           over the worksite. Liability under [this] test does not depend on
           whether the [cited] employer actually created the hazard or has the
           manpower or expertise to itself abate the hazard.

   Red Lobster Inns of America, Inc., 8 BNA OSHC 1762, 1763, 1980 CCH OSHD
   ¶ 24,636, p. 30,220 (No. 76-4754, 1980) (emphasis added) (case cite omitted).
   The key to the Commission’s holding in Red Lobster was the recognition that
   “[t]he safety of all employees can best be achieved if each employer at multi-
   employer worksites . . . abate[s] hazardous conditions under its control . . . .”
   Harvey Workover, Inc., 7 BNA OSHC 1687, 1689, 1979 CCH OSHD ¶ 23,830, p.
   28,909 (No. 76-1408, 1979). An employer who has control over an entire
   worksite must take whatever measures are “commensurate with its degree of
   supervisory capacity.” Marshall v. Knutson, 566 F.2d 596 (8th Cir. 1977).

   Universal stipulated that it had control over the construction site and had the authority to

direct its subcontractors to abate safety hazards and violations. The Secretary has established
serious violations of §§ 1926.453(b)(2)(iv) and (v).
 Universal stipulated that it was found liable for the alleged violations, the Secretary’s
proposed penalty was appropriate. Accordingly, the Secretary’s proposed penalty of $1,500 is
assessed.

                             FINDINGS OF FACT AND
                            AND CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                          ORDER

   Based upon the foregoing decision, it is hereby ORDERED that:
   Items 1a and 1b are affirmed and a total penalty of $1,500 is assessed.




                                          NANCY J. SPIES
                                          Judge

Date: March 18, 1998