JHL Constructors, Inc.

Plain-English summary

JHL Constructors was the general contractor for construction of a middle school. OSHA cited JHL after a masonry subcontractor employee worked near an unprotected edge about 14 feet above the ground without fall protection. The Secretary proved that the standard applied, its terms were not met, and workers had access to the hazard. Judge Sidney J. Goldstein found that JHL lacked actual or constructive knowledge because it conducted frequent inspections, enforced safety rules, and immediately removed the worker when supervisors discovered the condition. The citation was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1)
• Outcome: Fall-protection citation vacated.
• Key point: The Secretary did not prove employer knowledge where the general contractor regularly inspected the site and promptly corrected subcontractor safety violations.

Full text (OSHRC public release)

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SECRETARY OF LABOR, |
Complainant, |
|
v. | OSHRC DOCKET
| NO. 98-0573
JHL CONSTRUCTORS, INC., |
|
Respondent. |
|

APPEARANCES:

                     Elizabeth C. Lawrence, Esq., Office of the Solicitor, U.S. Department of Labor,
                      Kansas City, Missouri

                     Kenneth R. Stettner, Esq., Stettner, Miller and Cohn, Denver, Colorado

Before: Administrative Law Judge Sidney J. Goldstein

                                    DECISION AND ORDER

      In this action the Secretary of Labor seeks to enforce a citation issued by the Occupational

Safety and Health Administration to JHL Constructors, Inc. for the alleged violation of a regulation
relating the construction industry. The matter arose after a compliance officer for the Agency
inspected a worksite of the Company, concluded that it was in violation of the standard and
recommended that the citation be issued. The Respondent disagreed with this determination 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 charged that:
Each employee on a walking/working surface with an unprotected side or edge which
was 6 feet (1.8m) or more above a lower level, was not protected from falling by the use of guardrail
systems, safety net systems, or personal fall arrest systems:

           a) JHL Constructors, Inc., as the controlling contractor, did not ensure that employees

of Central Masonry Corporation erecting a block wall at 1731 Wildcat Reserve Parkway in Highlands
Ranch, CO were protected from falling in excess of 6 feet from the edge of the pre-cast
concrete deck to the lower level.

in violation of the regulation found at 29 C.F.R. §1926.501(b)(1) which reads as follows:
(b)(1) Unprotected sides and edges. Each employee on a walking/working
surface (horizontal and vertical surface) with an unprotected side or edge which is 6
feet (1.8 m) or more above a lower level shall be protected from falling by the use of
guardrail systems, safety net systems, or personal fall arrest systems.

    The material facts are not in substantial dispute and may be briefly summarized. JHL

Constructors, Inc. was the general contractor in the construction of a middle school. It subcontracted
masonry work to Central Masonry Corporation with the stipulation that the latter would comply with
Respondent’s safety rules and OSHA safety regulations. Respondent itself had a safety program,
including safety manuals, programs, meetings and scheduled and unscheduled daily site inspections.
The company also reviewed Central’s safety rules. Respondent’s assistant superintendent and safety
representative monitored the middle school project at least twice daily, including subcontractor
activity. There were also daily discussions with subcontractor employees relating to safety
requirements. When necessary, Respondent disciplined subcontractor employees if safety violations
were observed.
At approximately 10:30 a.m. on February 26, 1998, Respondent’s officers began an
unscheduled safety inspection when they were informed that a compliance officer from OSHA was
on the worksite to conduct a safety inspection. During the course of the inspection, they observed
an employee of the masonry subcontractor erecting a block wall while he was within approximately
two feet of a leading edge which was about fourteen feet above ground level. No Respondent
employee was on the scene.
Earlier that morning stanchions and warning tape were located about six feet from the edge,
a situation observed by company inspectors during their routine inspection. It was not until they

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accompanied the compliance officer that they learned a subcontractor mason was working in an
unsafe manner. Respondent’s Vice President and Superintendent immediately ordered him to halt
work. At first the subcontractor’s employee refused to stop, but, after some indelicate words, the
mason departed the premises.
The compliance officer videotaped the Central Masonry employee working within three feet
of the unprotected edge of the wall. He worked in this area for about one-half hour. Other
subcontractor workers also were near the unprotected edge. The tapes confirmed that there were
no guard rails, safety nets or other personal fall protection to keep employees from the fall hazard.
Respondent’s supervisors were unaware that stanchions and caution tape were removed and
that the mason was working too close to the edge of the wall.
JCL Constructors, Inc. has rule which requires that platforms above six feet must be guarded
by a standard railing or its equivalent. As previously noted, the company had no employees in the
area of the violation. Other subcontractors, including electricians and plumbers, were also informed
that a safety line was required if they were closer than six feet from an edge.
Respondent’s assistant superintendent and safety representative conducted inspections at 7:00
a.m. and 3:30 p.m. daily. When they checked the construction site on the morning of the infraction,
everything seemed in order.
On the basis of the record in this case, the Secretary’s position is that the standard in issue
applies; that the terms of the standard were not met; that the hazard

was accessible to employees (of Central Masonry); and that the employer had knowledge of the
hazards.
The Respondent points out that the Complainant does not dispute the company’s extensive
safety program, including safety audits, on site daily inspections as well as unscheduled safety
inspections and twice daily scheduled safety walk-throughs. The company adds that it also had daily
discussions with subcontractor employees and foremen relating to leading edge and outer edge safety
requirements. Further, the company took corrective action when safety violations or hazardous
conditions were observed.
Both parties agree that the Secretary has the burden of proof that the Respondent violated

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the standard, and that the Secretary must show that:
(1) The standard applies to the cited condition; (2) the terms of the cited standard were not
met; (3) one or more employees had access to the violative condition; and (4) the employer knew,
or with the exercise of reasonable diligence, could have known, of the violative condition.
It is undisputed that the Secretary established that items 1, 2 and 3 were met. The fourth
requirement is troublesome. The record discloses that the Respondent did not have actual knowledge
that an employee of a subcontractor was working within two feet of an unguarded edge in
contravention of instructions and safety rules. Indeed, when Mr. Hearn saw a mason too close to the
fourteen foot wall, he immediately ordered the employee off the premises. When the mason balked
at leaving, he resorted to harsh language, and the worker left.
Since the Respondent made frequent inspections of the worksite, and since it made immediate
corrections when it observed infractions of safety rules; since it adequately trained, supervised and
disciplined employees for safety violations, it could not with reasonable diligence have knowledge of
the violations. The Secretary thus

failed to prove that the Respondent knew or should have known that violations of the OSHA
standards took place.
The citation is VACATED.

                                                           Sidney J. Goldstein
                                                           Judge, OSHRC

Dated:

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