CONSTRUCTION STANDARDS' APPLICABILITY TO ARCHITECTS AND ENGINEERS CONSIDERED BY REVIEW COMMISSION

Whether architects and engineers who do not perform physical labor are subject to job safety rules applicable to construction sites will be considered during oral arguments before the Occupational Safety and Health Review Commission. The argument is scheduled for 10 a.m. January 30, 1997 at the Review Commission, 1120 20th St., N.W., Ninth Floor, Room 965, Washington, D.C., before Commission Chairman Stuart E. Weisberg and Commissioners Velma Montoya and Daniel Guttman.

Two cases will be considered.  One involves CH2M Hill, an environmental engineering firm based in Milwaukee, Wisconsin, which had a contract with the The Milwaukee Metropolitan Sewerage District to provide management services at its $2.2 billion tunneling project.  Hill worked as a consultant at the venture, a Water Pollution Abatement Program in Milwaukee, Wisconsin, which included plant expansion, sewer rehabilitation and other underground construction.  An explosion occurred at the project in November 1988 that took the lives of three employees of the tunneling contractor, S. A. Healy Company. OSHA inspected the worksite and issued citations to Healy for 68 alleged violations of job safety rules.  OSHA also issued citations, containing 47 alleged willful violations, to Hill, the project manager.   Hill contested the citations and a Review Commission judge vacated them, finding that "Hill did not exercise supervision of the construction work, nor did it create or control any hazardous conditions at the worksite."

The other case concerns Foit-Albert Associates, Architects and Engineers, P.C. Foit-Albert was hired as a consultant to ensure compliance with contract drawings, plans and specifications at the construction site of the State University of New York's (SUNY) Amherst, New York campus, where a nine-story chemistry building was being built. When concrete was being poured at the fourth level of the building in July 1991, part of the structure's shoring system collapsed, concrete flowed to the third floor and three people were injured, two of whom were Foit-Albert employees.

After an inspection, OSHA issued Foit-Albert a serious citation alleging violations of construction standards. The company contested and a Review Commission judge vacated the citations, ruling that "Because Foit-Albert was not engaged in construction work at the SUNY worksite, the construction standards cannot apply."

Oral argument was scheduled after the Secretary of Labor asked the Commission to review the judges' decisions in both matters. The Commission will consider 1) the nature of the companies' contractual duties and on-site supervisory responsibilities; 2) the extent to which the companies may have exceeded these responsibilities by performing construction work and calling attention to hazardous conditions; 3) the relevance to the companies' culpability of the presence of a general contractor or construction manager employed by another firm; 4) whether the fact that other employers at a worksite received job safety citations affects the citability of consultants; 5) the nature, extent and duration of employee  exposure to hazards; 6) the extent to which the consultants created or controlled the hazards and their power to correct them; 7) the consultants' responsibilities for ensuring compliance with job safety rules given that they had no contractual duties to manage day-to-day construction activities and 8) the extent to which contract provisions may limit their responsibilities.

Arguments will be presented by Nicholas J. Levintow, counsel for the Secretary of Labor; Robert C. Gombar, counsel for CH2M Hill, Inc. and John P. Quinn, counsel for Foit-Albert.  Arthur G. Sapper will appear as a "friend of the court," representing The American Institute of Architects, The National Society of Professional Engineers and The American Consulting Engineers Council.

OSHRC is an independent federal agency created to issue decisions in disputes arising from inspections conducted by OSHA, part of the U.S. Department of Labor. OSHRC has two adjudication levels, Administrative Law Judges and Commissioners.  Commissioners generally make decisions on the record developed by the judge, but hold oral arguments in certain cases that present significant, complex or unique legal issues. 

Last Updated: March 27, 2003