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GC Held Liable for Sub’s Lapses

Wednesday, August 20, 2014

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A general contractor well acquainted with a subcontractor’s indifference to fall protection is being held responsible for just such a lapse spotted by a federal inspector.

The decision comes from an Administrative Law Judge of the Occupational Safety and Health Review Commission, an independent agency that fields appeals to the Occupational Safety and Health Administration.

The ruling upholds one serious violation and a penalty of $4,410 against Evergreen Construction Company of Atlanta, GA. The ruling by Judge Sharon D. Calhoun is awaiting final review by the entire commission.

'Fall Hazards on Every Corner'

The case stems from an OSHA inspection June 12, 2012, at a hotel construction site where Evergreen was the general contractor. The inspection was prompted by a complaint.

Hyatt Hotel
Evergreen Construction

One employee was hanging over the building edge, and another was standing on scaffolding without fall protection on the fourth floor of a six-story Hyatt House project.

Among the 20 subcontractors and 40 workers on site, the inspector saw several employees working about 30 feet up on the fourth floor, which was then the top floor. The employees worked for Nunez Construction, a subcontractor based in Austell, GA.

The floor was only partially built, with no walls and no guardrails or safety nets. Employees were working "from all edges," installing concrete masonry units (CMUs) to build the exterior walls, the inspector reported.

The inspector "observed fall hazards on every corner, on every side of the facility, and that there were no guardrails," the judge wrote.

The inspector saw no place to tie off where employees were working. He saw one employee standing unprotected on a fourth-floor scaffold and another leaning over the building edge.

'Didn't I Tell You?'

The OSHA compliance officer tracked down Evergreen's onsite construction supervisor, who also functioned as safety manager and superintendent.

Together, the two went to talk to the Nunez owner, identified in court documents only as "Mr. Nunez."

"Didn't I tell you to get some fall protection on?" the superintendent said to Nunez.


Guardrail systems must be installed along all open sides and ends of platforms, and must be in place before the scaffold is released for use by employees.

Nunez employees told the OSHA inspector that they had been working on the fourth floor for three days without fall protection.

Nunez was fined $10,780 for two citations for serious violations, which it is contesting. (The company was also cited by OSHA in 2011 and 2009.)

Evergreen was also fined as the controlling employer on the jobsite.

What the GC Knew

To prove a violation in such cases, OSHA must show that the controlling employer "knew or could have known with the exercise of reasonable diligence of the violative condition."

In this case, the GC superintendent successfully argued that he had no "actual" knowledge of the violation, because he did not see the Nunez workers outside the trailer window where he had been that morning.

On the other hand, both the superintendent and Evergreen's project manager testified at hearings on the case that "they knew Nunez Construction did not use fall protection prior to the date of the inspection," Calhoun wrote.

In fact, the superintendent testified, he had previously warned Nunez employees about not using fall protection; had taken them off the job until they acquired it; had sent them home for not using it; and sometimes had even provided it for them.

'Not Very Reliable'

He said he had seen safety violations by Nunez on several occasions, including "people not even dressed properly, not wearing the proper safety equipment, such as hard hats, work boots, not only safety harnesses and lanyards and tie-offs."

Evergreen Construction
Evergreen Construction

The judge commended Evergreen's safety program and training with its own employees but said it had not shown similar diligence with the subcontractor.

"Although Nunez Construction had been on the jobsite only a few weeks, its reputation for not wearing fall protection was well known by" the Evergreen superintendent, the judge wrote.

"Further," the superintendent "testified they were not very reliable regarding 'man power, safety, showing up to the job at the proper time; pretty much everything in general.'"

The judge also noted that the Nunez employees had been working for two or three hours on the morning of the inspection and that the violative conditions "were in plain view."

While commending Evergreen's safety program and training, the judge said the general contractor could have foreseen the fall-protection violations "with the exercise of reasonable diligence."


Tagged categories: Fall protection; General contractors; Health and safety; OSHA; Regulations; Subcontractors

Comment from peter gibson, (8/20/2014, 12:54 PM)

Nunez was the ultra low bidder on this job...so there you be.

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