Oregon Occupational Safety & Health Division ) DKT NO. SH92163 Plaintiff ) CITATION NO. C4016-016-92 v. ) ) P & C CONSTRUCTION COMPANY ) Defendant ) ORDER ON RECONSIDERATION On April 14, 1993, an Opinion and Order issued herein. By letter dated March 12, 1993 the employer requested reconsideration. On March 12, 1993 the Workers' Compensation Board issued an Order Abating Opinion and Order. Each party has now had an opportunity to fully present its point of view. The employer's motion to reconsider is granted. The employer argues that, based on an inter-office memorandum of the Workers' Compensation Department in relation to issuance of safety citations at multi-employer work sites, general contractor P & C Construction should not have been cited, and at the least, the citation should not be affirmed. The employer contends that it should not have been cited because it has a "legitimate defense" as follows: "The employer did not create the hazard; the employer did not have the authority or the ability to correct the hazard; the employer made a reasonable effort to persuade the controlling employer to correct the hazard; the employer has instructed and, where necessary, informed employees how to avoid or minimize the dangers associated with the hazardous conditions." I separately address the relevant elements of the "legitimate defense" provision. Control of Hazardous Site - Controlling Employer The defendant employer argues that subcontractor Fred Shearer & Sons had control of the work area, but OR-OSHA responds that P & C Construction had control of the roof because it directed where the work would occur, when it would be done and who would do it. I agree with OR-OSHA, after all it was the defendant employer who actually removed the barriers around the light well. Not only did the defendant employer maintain control over the roof, but it also qualifies as the "controlling employer" towards whom the "legitimate defense" provision shunts most safety violations. My impression of that particular rule would be that it is designed to protect entities such as Fred Shearer & Sons from receiving a citation arising out of a hazard created by a general contractor -- rather than the opposite as the defendant/employer argues. Authority to Correct Hazard The employer argues that the sub-contractor had authority to correct the hazard, but OR-OSHA responds that not only did the employer/defendant actually remove the barriers which created the hazard, but that it certainly, at all times, had authority and ability to correct the hazard. I agree with OR-OSHA, because there is absolutely no testimony (and it would appear to be unlikely), that the defendant/employer would have been satisfied had Fred Shearer & Sons replaced the barrier around the skylight. Had Fred Shearer & Sons done so, it would have distinctly interfered with the operations of the next sub-contractor which was soon to arrive and was to work on the very edge of the parapet around the light well. This demonstrates to me that it was, in fact, the defendant/employer which could have corrected the hazard. I am persuaded that no other entity could have corrected the hazard without at least the express authorization from the defendant/employer. Conclusion Based upon the foregoing, P & C Construction has not persuaded me that my decision was in error because of an alleged failure to apply the rules in relation to a multi-employer work site. In fact, I am persuaded that in this case, because P & C Construction was the general contractor, it was not even eligible for the protections of the "legitimate defense" provisions. Therefore, upon reconsideration, I adhere to my earlier decision.
NOW, THEREFORE, IT IS HEREBY ORDERED as follows: 1. The January 14, 1993 Opinion and Order is reaffirmed and republished as of this date. 2. Appeal rights run from the date of this Order. NOTICE TO ALL PARTIES: You are entitled to judicial review of this Order. Proceedings for review are to be instituted by filing a petition in the Court of Appeals, Supreme Court Building, Salem, Oregon 97310, within 60 days following the date this Order is entered and served as shown hereon. The procedure for such judicial review is prescribed by ORS 183.480 and ORS 183.482. ENTERED at Salem, Oregon, on May 19, 1993 WORKERS' COMPENSATION BOARD By Michael V. Johnson Referee