By: Thomas H. Welby Published: February 2015

"Exposing" Employer Not Exempt from Being Cited by OSHA for Condition It Was Not Empowered to Abate

As an employer, you may have OSHA liability for a violation you did not create, and lack authority to correct.

The OSH Review Commission recently decided the Secretary’s appeal from part of an Administrative Law Judge’s decision that vacated two “Willful” items issued against a formwork subcontractor, arising out of the collapse of a garage during a concrete pour.  The garage was part of a construction project for a new six-story parking garage and an adjoining condominium tower.  The owner hired a firm of architects and a general contractor.  The architect engaged the engineer of record, who prepared “signed and sealed” structural drawings.  The GC, Choate, hired subcontractors, including a concrete finishing company, Pittman, and Southern Pan, the cited employer, and the shoring and formwork subcontractor.

Southern Pan was responsible for obtaining shoring and reshoring drawings, building the formwork, and placing concrete for some of the vertical pours (but not the horizontal pours).  The horizontal pours were Pittman’s responsibility.

Southern Pan hired two additional engineering firms:  Patent Engineering, to provide drawings for the shoring and reshoring, and Universal, to inspect the shoring and reshoring, and to determine whether these components were constructed according to Patent’s drawings.  The owner hired yet another engineering firm, Synergy, whose duties included insuring that the construction of all load-bearing components complied with the permit documents, and that the shoring and reshoring conformed to the plans.

Patent’s plans showed that shoring or reshoring was to extend down to the ground until the end of the construction phase.  Southern Pan, however, removed reshoring from the first, second and third levels of the garage well before the end of construction, and did so without making or requesting changes to Patent’s drawings.  Southern Pan elected to switch the shoring method to the “one over two” method, which, instead of shoring to the ground, shored the top level, and reshored only the two levels immediately below it.

Following the removal of the reshoring, the general contractor and concrete finishing sub successfully placed two horizontal pours in the garage.  During the next pour, however, part of the garage collapsed, killing one Southern Pan employee and injuring more than twenty.

Following an OSHA inspection, Southern Pan was issued four citation items (two “Serious” and two “Willful”) with recommended penalties totaling $125,000.  Southern Pan contested all four items, and following a hearing, the Administrative Law Judge (1) vacated both “Serious” items; (2) vacated one “Willful” item alleging a violation of a standard (29 C.F.R. § 1926.701[a]) that requires the employer to determine, “based on information received from a person who is qualified in structural design, that the structure or portion of the structure is capable of supporting” load to be placed on a concrete structure or portion of a concrete structure; and (3) affirmed a “Willful” item, that the employer had failed to have formwork plans available at the jobsite (29 C.F.R. § 1926.703[a][2]).

The Secretary sought review of the ALJ’s vacatur of the “placement of construction loads” citation item, and Southern Pan asked for review of the affirmance of the “availability of formwork plans” citation item.  In a 2-to-1 decision, the Commission upheld the Secretary’s appeal, and denied that of the employer.

The crux of the ALJ’s decision to vacate the “construction loads” citation item was his view that the standard applies only to the employer(s) directly responsible for the concrete operation (Choate, the general contractor, and Pittman, the concrete finishing contractor).

One member of the three-member Commission, Commissioner MacDougal, agreed with the ALJ in her dissent, and cited the preamble to the final rule indicating that the construction loads standard applies to an employer “directly responsible for the concrete operations.”

The majority, in setting aside the ALJ’s determination to vacate the construction loads item, found the issue to be not the applicability of the standard, but the nature of Southern Pan’s compliance obligations.

Based on long-standing Commission precedent, the majority found, an employer whose own employees are exposed to a hazard or violative condition (an “exposing employer”) has a statutory duty to comply with a particular standard, even where it did not create or control the hazard.  In the case before the Commission, the majority found, Southern Pan was indisputably an “exposing employer.”  As such, it was required to do what was realistic, under the circumstances, to protect its employees, even though full, literal compliance with the standard might have been unrealistic.

Citing a 1975 Commission decision, the Commission in Southern Pan stressed that “simply because a subcontractor cannot himself abate a violative condition does not mean it is powerless to protect its employees.  It can, for example, attempt to have the general contractor correct the condition, attempt to persuade the employer responsible for the condition to correct it, instruct its employees to avoid the area where the hazard exists if . . . practical, or in some instances provide an alternative means of protection against the hazard.”

The Commission remanded this item for a determination of whether Southern Pan had made reasonable efforts to protect its two employees exposed to the violative condition, and (if it did not) whether it knew or should have known of the condition giving rise to the violation.

The Commission also found that the “formwork drawings available onsite” citation item was rightly affirmed by the ALJ.  In addition to rejecting a somewhat technical pre-emption” argument made by Southern Pan, the Commission rejected Southern Pan’s arguments that it had all “available” plans onsite, and that its responsibilities were fulfilled when Synergy (the owner’s inspector) obtained consent via e-mail from the Project Engineer to carry out the shoring and reshoring removal.

Unlike many documentary requirements, which typically result in “Other than Serious” citations at most, the requirement of having all formwork plans and revisions onsite is no mere technicality.  Formwork is designed to transfer weight from the structure.  Without the drawings or plans immediately accessible, questions regarding the design and integrity of the forms or shoring layout cannot be properly addressed, and the standard’s purpose, to prevent accidents that could result from improperly erected formwork, is compromised.

The “takeaway” from Southern Pan is that plans and revisions regarding construction loads must be maintained on-site.  Also, if any of your employees are exposed to a violative condition that your company neither created nor controlled, you remain responsible for that condition, even if it is beyond your power to fully abate it.  If you know or should know of the hazard, your obligation under OSHA is to notify (we suggest in writing whenever possible) the directly responsible party (and the general contractor and premises owner) and to take any and all such other measures, practicable in the circumstances, to have the condition corrected, and to protect your employees.

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