Engineered Construction Systems, Inc.

Plain-English summary

Engineered Construction Systems was the general contractor for a quick-lube building project in Colorado. OSHA observed masonry employees working on scaffolds more than 10 feet high without guardrails and workers near unguarded floor pits almost eight feet deep. The judge held the general contractor responsible because it knew about the scaffold hazard, had authority to require correction, and could not delay action based on a contract provision requiring three days' notice to the subcontractor. The floor-opening item was also affirmed because employees were exposed and the general contractor had created and controlled the hazard. The judge rejected a Fourth Amendment objection because the construction activities were visible to the public. Both serious items were affirmed with reduced penalties of $500 each.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(g)(4)(i); 29 C.F.R. § 1926.501(b)(4)(i)
• Outcome: Two serious fall-protection items affirmed; $1,000 total penalty assessed.
• Key point: A controlling contractor cannot use a subcontract notice clause to postpone correcting a known fall hazard.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,

                          v.                                OSHRC DOCKET NO. 97-1949

ENGINEERED CONSTRUCTION SYSTEMS,
INC.,
Respondent.

APPEARANCES:

      For the Complainant:
               Tobias B. Fritz, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri

      For the Respondent:
               James A. Dubee, Esq., Denver, Colorado

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

651 et seq.; hereafter called the “Act”).
Respondent, Engineered Construction Systems, Inc. (ECS), at all times relevant to this action
maintained a place of business at a Quick Lube under construction at Santa Fe and Union, Englewood,
Colorado, where it was engaged as the general contractor. Respondent admits it is an employer engaged
in a business affecting commerce and is subject to the requirements of the Act.
On August 27 through September 2, 1997 the Occupational Safety and Health Administration
(OSHA) conducted an inspection of ECS’s Englewood work site. As a result of that inspection, ECS was
issued citations alleging violations of the Act together with proposed penalties.
By filing a timely notice of contest ECS brought this proceeding before the Occupational Safety and
Health Review Commission (Commission). On February 5, 1998, a hearing was held in Denver, Colorado.

                                   Alleged Violation of §1926.451(g)(4)(i)

29 CFR 1926.451(g)(4)(i): Guardrail systems were not installed along all open sides and ends of platforms:
a) At 4611 S. Santa Fe Drive, Englewood, CO: Engineered Construction Systems, as the controlling
contractor, did not ensure employees of their subcontractor’s, Town and Country Masonry, were protected
from falls exceeding 10 feet, in that guard rails were not provided on tubular welded scaffolding.
Facts
Following receipt of a complaint by the Denver area office, OSHA Compliance Officers (CO) Jack
Cain and Thurman London arrived at ECS’s Englewood work site on August 27, 1997 (Tr. 33). As they
pulled up to the site, they observed masons setting block from scaffolding on the exterior of the building
under construction (Tr. 34, 89-93). Cain and London contacted Greg Rickstrew, ECS’s supervisor, who
told them that it was ECS’s policy to request a warrant before allowing any OSHA inspection (Tr. 38, 51).
Cain and London left; however, London returned the following day, at which time he videotaped masons
working from the same unguarded scaffolding (Tr. 89, 102; Exh. C-7, C-8, C-9).
ECS admits that Town and Country, its masonry subcontractor, raised its scaffolding above 10 feet
sometime August 27, 1997, and that required guardrails were not installed (Tr. 127). Town and Country
masons were exposed to the cited fall hazard (Tr. 60-61). Following the OSHA inspection on the 27th,
ECS asked Town and Country to abate the guardrail hazard in writing (Tr. 63, 67, 128; Exh. C-16). On
the 28th, ECS verbally requested that guardrails be installed, at 7:00, 8:00, and 11:00 a.m. (Tr. 164-65).
On the evening of the 28th, ECS informed Town and Country, in writing, that it would not be allowed to
resume work on the 29th unless the fall hazard was abated (Tr. 64, 68, 131; Exh. C-17). Cecil Rickstrew
testified that under the terms of his contract with Town and Country, he was required to provide the
subcontractor with three days notice of an observed safety violation before stopping their work (Tr. 141,
145).
Discussion
It is undisputed that Town and Country employees were exposed to the violative condition. ECS
maintains, however, that it took all reasonable steps to have Town and Country abate the safety hazard, and
that it is not liable for the violation.
The Commission has held that on a multi-employer site 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. The general contractor is, therefore, responsible for violations it could reasonably
have been expected to prevent or abate by reason of its supervisory capacity. IBP Inc., 17 BNA OSHC
2073, 1997 CCH OSHD ¶31,296 (No. 93-3059, 1997).
It is admitted that ECS was both aware of the hazardous condition and had the authority to compel
its subcontractor’s compliance with OSHA regulations. ECS did, in fact, secure Town and Country’s
cooperation by refusing to allow them to work on August 29, 1997. ECS’s failure to take effective action
earlier is not excused by the three day notice provision in its contract with Town and Country. ECS’s

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obligations as an employer are spelled out by the Act, and may not be altered by contract with third parties.
Pride Oil Well Service, 15 BNA OSHC 1809, 1991-93 CCH OSHD ¶29,807 (No. 87-692, 1992).
The violation is established.
Penalty
A penalty of $1,500.00 was proposed. That the violation was “serious” is stipulated. Town and
Country employees were exposed to a fall hazard in excess of 10 feet for two days prior to the installation
of guardrails. ECS is a small employer, with only eight employees (Tr. 7). The evidence establishes that
ECS made repeated unsuccessful efforts to have the cited fall hazard abated, establishing its good faith.
Given its efforts to abate the hazard created by the subcontractor, greater credit should have been
given for ECS’s good faith. A penalty of $500.00 is deemed appropriate and is assessed.
Alleged Violation of §1926.501(b)(4)(i)

29 CFR 1926.501(b)(4)(i): Employees on walking/working surfaces were not protected from falling
through holes more than 6 feet above lower levels, by the use of personal fall arrest systems, covers, or
guardrail systems:

a) At 4611 S. Santa Fe Drive, Englewood, CO: Engineered Construction Services, as the controlling
contractor, did not ensure employees of their subcontractor’s Town and Country Masonry, were protected
from falls exceeding 6 feet, in that floor openings were not provided with covers, and no alternative systems
were used, in the following locations.

1. On the south side of the interior of the building, at the lube pit;
2. On the north side of the interior of the building, at the lube pit;

3. On the northwest corner of the interior of the building, at the stairway under construction.

   During Cain’s opening conference with Greg Rickstrew, he observed two employees standing inside
   the building under construction, between two open and unguarded pits passing what appeared to be hoses
   into or out from the pits (Tr. 39, 49). CO London also saw the two workers in the vicinity of the pits as
   he walked past the front of the building (Tr. 101-02). On September 2, 1997, Cain and London returned
   to the job site with a warrant (Tr. 52). The pits, which were approximately 7 feet, 11 inches deep, were
   covered with plywood (Tr. 44-46, 53). ECS employee’s told Cain that the pits were covered on August
   28 (Tr. 55). CO Cain testified that an ECS employee, Eloy Aquero Rodrigues, told him that he might have
   been one of the people Cain had seen inside the building on the 27th (Tr. 50, 57). Cain admitted, however,
   that Rodrigues was not sure of the date he last worked in or near the pit (Tr. 57, 78-79). Cain was unable
   to otherwise identify the employees seen near the pits on August 27 (Tr. 80).

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   Cecil Rickstrew testified that on August 27, 1997, construction of the pits was complete, and
   exhaust fans had been placed in the pits to dry them in preparation for painting (Tr. 134-35). Both Cecil
   and Greg Rickstrew testified that no work remained to be done in the area of the pits, and that there was
   no reason for its employees to be in the building (Tr. 137-38, 166-67). Cecil and Greg Rickstrew testified
   that ECS and Town and Country employees were warned to stay out of the area (Tr. 135, 156, 175).
   Neither Cecil or Greg Rickstrew were aware that anyone was in the pit area (Tr. 138, 170). The interior
   could be accessed, however, by ducking under the cross-bracing of the scaffolding (Tr. 156).
   Discussion
   As a threshold matter, ECS argues that the testimony of COs Cain and London was based on
   information obtained in contravention of ECS’s Fourth Amendment rights and so should be excluded.
   It is well settled that the Fourth Amendment only protects against intrusions into areas where an
   employer has a reasonable expectation of privacy. Tri-State Steel Constr., Inc., 15 BNA OSHC 1903,
   1991-93 CCH OSHD ¶29,852 (No. 89-2611, 1992). The Commission has held that there is no reasonable
   expectation of privacy when activities are conducted out of doors and not closed off to the public. Id.
   The work site in this case was a multi-employer construction site, on which both ECS and Town and
   Country conducted activities observable by the public. ECS could not reasonably have had any expectation
   of privacy on the job site. The COs’testimony was properly admitted.
   The evidence establishes employee exposure to the unguarded pits. ECS, as the creating and
   controlling employer, is responsible for the cited hazard; therefore, it is irrelevant that the Secretary failed
   to establish whether the exposed employees were ECS or Town and Country employees.
   The cited violation is established.
   Penalty
   A penalty of $1,500.00 was proposed. While employee exposure has been established, the paucity
   of evidence makes it impossible to ascertain either the length of exposure or the likelihood of an accident
   occurring. The gravity of the violation, therefore, must be deemed minimal. A penalty of $500.00 is
   appropriate and is assessed.

                                              ORDER
   

   1. Serious citation 1, item 1, alleging violation of §1926.451(g)(4)(i) is AFFIRMED, and a penalty of
      $500.00 is ASSESSED.

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      2. Serious citation 1, item 2, alleging violation of §1926.501(b)(4)(i) is AFFIRMED, and a penalty of
      $500.00 is ASSESSED.

                                                   James H. Barkley
                                                   Judge, OSHRC
      

Dated:

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