UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

 

 DOCKET NO. 15-1638 

Appearances:

Michael D. Schoen, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas

 For Complainant

Michael V. Abcarian, Fisher & Phillips, LLC, Dallas, Texas

 For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

Procedural History

This matter is before the Occupational Safety and Health Review Commission 

(“Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 

29 U.S.C. § 651 et seq. (“the Act”). On March 4, 2015, the Occupational Safety and Health 

Administration (“OSHA”) inspected a Hensel Phelps Construction Company (“Respondent”)

jobsite located at 100 West Avenue, in Austin, Texas. (Stip. 1). As a result of that inspection, 

OSHA issued a Citation and Notification of Penalty (“Citation”) to Respondent alleging one 

willful violation of the Act with a proposed penalty of $70,000.00. (Stips. 104, 107). 

Respondent timely contested the Citation. (Stip. 105). 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

HENSEL PHELPS CONSTRUCTION CO., 

 

 Respondent.
2

Stipulations

Pursuant to Commission Rule 61, 29 C.F.R. §2200.61, the parties fully stipulated to the 

facts of this case and each separately moved for a decision based upon the stipulated record. The 

parties’ Joint Stipulations of Fact and Procedure, which contains one-hundred-thirty (130) 

stipulations, was filed on January 12, 2017. Each party’s dispositive motion was filed on 

February 17, 2017. 

Jurisdiction

Jurisdiction is conferred upon the Commission pursuant to Section 10(c) of the Act. 

Respondent was an employer engaged in a business and industry affecting interstate commerce 

within the meaning of Section 3(5) of the Act, 29 U.S.C. § 652(5). (Stips. 109, 110). See also

Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).

Background

On March 4, 2015, the OSHA Area Office in Austin, Texas received a complaint

concerning a construction jobsite for the new Austin Central Public Library (“library project”). 

(Stips. 11, 88). The complaint alleged that employees of CVI Development, LLC (“CVI”) were 

working in hazardous conditions at the Seaholm Substation East Screen Wall. (Stip. 88). In 

response, OSHA Compliance Safety and Health Officer Greg Halter (“CSHO Halter”) was 

dispatched to the worksite to conduct an inspection. (Stip. 102). 

The inspection revealed that, on March 4, 2015, CVI employees Olivarel Nativadad,

1

 

Pedro Sanchez, and Karl Daniels (who was also the owner and President of CVI) were working 

next to an excavated wall, an area referred to as the Seaholm Substation East Screen Wall, which 

 

1 The Court notes that the parties’ stipulations spell one of the exposed employees name differently at times. 

Stipulation No. 10 identifies one of the exposed employees as “Natividad Olivarez-Vasquez,” while Stipulation No. 

79 identifies, presumably the same person, as “Olivarel Nativadad.”
3

measured approximately twelve feet, six inches (12' 6") in depth by one hundred fifty feet (150') 

in length. (Stips. 10, 37-39, 76, 78-80; Exs. 5-8). The parties’ stipulations are sufficient to prove 

the prima facie elements necessary to establish the cited violation. See Discussion infra. 

Therefore, the sole remaining issue is whether Respondent, as the General Contractor on the 

jobsite, can be found liable for the Citation based upon CVI employees’ exposure to the violative 

condition, under OSHA’s “controlling employer” enforcement policy. 

Respondent entered into a contract with the City of Austin to build the library back in 

2010. (Stip. 11; Ex. 1). Respondent subcontracted with Haynes Eaglin Watters, LLC (“HEW”)

in 2014 to complete certain foundation and screen wall work on the Seaholm Substation East 

Screen Wall. (Stips. 4, 29; Ex. 2). HEW then subcontracted with CVI to complete all 

demolition, excavation and haul-off, backfill and drain, and site concrete (foundation & retaining 

walls) work as required for the Seaholm Substation East Screen Wall. (Stip. 35; Ex. 3). 

Respondent had overall construction management authority on the library project. (Stip. 

28). Respondent supervised the library work through various on-site management personnel, 

including superintendents, project engineers, and project manager(s). (Stips. 13-21, 24, 26). 

Many of Respondent’s management personnel at this jobsite had extensive OSHA training, 

education, and experience (Stips. 22, 23, 25, 27).

In December 2014, Respondent submitted an Excavation Safety Plan to the City of 

Austin, which was prepared by HEW. (Stip. 43). All relevant construction documents (including 

the ROCIP Project Safety Manual, HP’s Excavation Safety Plan and HP’s Accident Prevention 

Plan) specified a requirement at the Seaholm Substation East Screen Wall to include an 

excavation slope of 1.5 (horizontal) to 1 (vertical), as well as 5 feet of level ground before 
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reaching the security fence surrounding the Seaholm Substation East Screen Wall work area. 

(Stip. 44). 

In February 2015, after another subcontractor was brought in to resolve unforeseen 

underground structure and asbestos issues, CVI began to lay out footings for the Seaholm 

Substation East Screen Wall. (Stips. 45-56). CVI quickly determined that the wall footings were 

not going to fit the jobsite in accordance with construction drawings and requirements identified 

by Respondent’s engineers. CVI notified HEW of this problem, who in turn notified Respondent. 

(Stip. 57). Respondent’s management personnel visited and observed the Seaholm Substation 

East Screen Wall site to evaluate the issue. (Stip. 59). The City of Austin ultimately agreed that 

the planned Seaholm Substation East Screen Wall could be moved nine inches (9”), so as to be 

constructed immediately next to vertical excavation faces consisting of soil, and unknown 

fragments of brick, metal, wood and concrete. (Stip. 61, 62; Exs. 5, 6, 7, 8). 

On the morning of March 4, 2015, CVI owner Karl Daniels sent his employees to work at 

another location on the library project (a different work area - unrelated to the Seaholm 

Substation East Screen Wall), while he awaited instructions from Respondent and/or HEW 

concerning the work to be performed at the Seaholm Substation East Screen Wall. (Stip. 63). A 

City of Austin Inspector observed the CVI employees working at the other area, and told CVI 

owner Karl Daniels that the only place CVI employees should be working at that time was at the 

utility pole location within the Seaholm Substation East Screen Wall. (Stips. 64-66). The City of 

Austin Inspector followed up these instructions in an email stating the same to various members 

of Respondent’s project management team and HEW management personnel. (Stips. 67-70; Ex. 

4). 
5

The Court notes that in the email communications on this topic, CVI owner Karl Daniels 

expressed safety concerns about his employees working on the Seaholm Substation East Screen 

Wall that day. (Ex. 4). Mr. Daniels wrote to three HEW managers: “If the ‘urgency’ is due to the 

exposed electrical pole not being properly shored then CVI is concerned about working in said 

area. Please correct me if I am wrong, but CVI has been provided direction from Ash from 

Hensel Phelps [Respondent] to proceed with placing rebar for the walls discussed, however 

placing rebar in the mud and rain is unorthodox and very dangerous.” (Stips. 32-34, 68; Ex. 4, 

p.1-2). 

After sending the March 4th e-mail, the City of Austin Inspector returned to Mr. Daniels 

and told him that he had his notice about what CVI employees were expected to be doing and 

where—i.e., working only on the Seaholm Substation East Screen Wall, and at no other area of 

the library project until needed reinforcement and related work around the small transmission 

pole at the Seaholm Substation East Screen Wall had been fully addressed. (Stip. 69). 

Lawrence Harding, Respondent’s Area Superintendent, received the City of Austin 

Inspector’s March 4th e-mail and forwarded it to Jay Herzing, Respondent’s Project 

Superintendent; Tracey Robinson, Respondent’s Engineer; Jesus Pena, Respondent’s Engineer; 

Troy Saint, HEW Project Superintendent; Clotiel Haynes, HEW President; Eric McClure, HEW 

Project Superintendent; and HEW Project Superintendent Willie Ibarra, with the added message: 

“At this time CVI may not continue on any other work in regards to Seaholm substation until the 

AE [Austin Energy] and COA [City of Austin] concerns of reinforcing bar and concrete 

placement to the adjacent small transmission pole has been completed.” 

(Stips. 24, 26, 70). 
6

As a result of these oral and email communications, Mr. Daniels pulled CVI employees 

from work at the other, unrelated location, and sent them to prepare the Seaholm Substation East 

Screen Wall area for rebar installation, which included, but was not limited to, digging the shear 

key, framing the pour area, tie-in of steel rebar, and pouring the footings. (Stips. 72, 73; Exs. 5,

6). Later that same day, still March 4, 2015, as CVI employees were installing rebar next to the 

unprotected twelve-foot vertical wall, it began raining intermittently. (Stip. 75). Respondent’s 

Area Superintendent Lawrence Harding, Respondent’s Project Superintendent Jay Herzing, 

HEW Project Superintendent Willie Ibarra, and the City of Austin Inspector were all present at 

the Seaholm Substation East Screen Wall while CVI employees were performing this work.

(Stips. 24, 26, 76, 77, 81; Exs. 5, 6, 7). In other words, CVI employees were working next to the 

exposed face of a 12-foot high, excavated, vertical, wet, soil wall that was not properly sloped or 

otherwise protected from cave-in hazards, in full view of Respondent’s management personnel. 

(Exs. 5, 6).

After OSHA’s on-site inspection, Respondent hired three additional subcontractors to 

slope the wall to a 1.5 to 1 ratio; to install wire mesh around the large transmission pole; to 

“shot-crete” the wire mesh; and to remove dirt from atop the horizontal concrete structures. 

(Stips. 90, 91). Afterward, Respondent contracted with a registered professional engineer to 

issue a stamped letter approving CVI employees’ return to the Seaholm Substation East Screen 

Wall to complete the required work. (Stip. 92). 

Discussion

To prove a violation of an OSHA regulation, Complainant must establish by a 

preponderance of the evidence that: (1) the cited standard applied to the work; (2) the employer

failed to comply with the requirements of the cited standard; (3) employees were exposed or 
7

had access to the hazard covered by the standard; and (4) the employer had actual or 

constructive knowledge of the violative condition (i.e., the employer knew, or with the exercise 

of reasonable diligence could have known). Atlantic Battery Co., 16 BNA OSHC 2131 (No. 

90-1747, 1994). 

Citation 1, Item 1

Complainant alleged a willful violation of the Act in Citation 1, Item 1 as follows: 

29 C.F.R. 1926.652(a)(1): Each employee in an excavation was not 

protected from cave-ins by an adequate protective system designed in 

accordance with 29 C.F.R. 1926.652(b) or 1926.652(c).

At the Seaholm Substation East Screen Wall, 100 West Avenue, 

Austin, TX, 78701, on or about March 4th, 2015 and at times prior 

thereto, four (4) workers were installing rebar during intermittent rain 

in an unprotected excavation approximately twelve feet and six inches 

(12’6”) deep by one hundred and fifty feet (150’) long, exposing the 

workers to a cave-in hazard.

The cited standard provides:

Each employee in an excavation shall be protected from cave-ins by an 

adequate protective system designed in accordance with paragraph (b) 

or (c) of this section except when: (i) Excavations are made entirely in 

stable rock; or (ii) Excavations are less than 5 feet (1.52 m) in depth 

and examination of the ground by a competent person provides no 

indication of a potential cave-in.

29 C.F.R. § 1926.652(a)(1). 

The parties stipulated to the facts necessary to establish all of the prima facie elements of 

the violation. The requirements of the cited regulation, 29 C.F.R. 1926.652(a)(1), applied to the 

work being performed by CVI employees at the Seaholm Substation East Screen Wall 

excavation site on March 4, 2015. (Stip. 111). The excavation at the Seaholm Substation East 

Screen Wall where CVI employees were working was not protected from the potential hazard of 

employees being caught in, or under, a cave-in by an adequate protective system pursuant to 29 

CFR 1926.652(a)(1). (Stip. 112). The exposed wall consisted of Type C soil, was greater than 
8

34 degrees (1.5 to 1 slope ratio), and did not include a protective system that met the 

requirements of 29 CFR 1926.652(c). (Stips. 82, 83, 112; Exs. 5, 6). The jobsite had been noncompliant for at least a few days prior to CSHO Halter’s arrival on March 4, 2015. (Stip. 84). 

Respondent also knew that on March 4, 2015, the CVI employees were performing work on the 

Seaholm Substation East Screen Wall, including installation of rebar in areas next to the

unprotected, twelve-foot high, vertical soil wall. (Stips. 77, 86, 87, 101). The prima facie

elements of the violation alleged in Citation 1, Item 1 are established. 

Therefore, as stated above, the sole remaining issue is whether Respondent, as the 

General Contractor for the library project, can be held liable for the violation as a “controlling 

employer.” Complainant argues, based upon the parties’ stipulated facts and Commission case 

law, that Respondent was properly cited for the violation as a “controlling employer” under 

OSHA’s Multi-Employer Citation Policy. (Stip. 129; Ex. 9). Respondent argues, based upon 

the parties’ stipulated facts and 5th Circuit case law, that OSHA’s “controlling employer” policy 

has been invalidated and is unenforceable. (Stip. 123). The parties have agreed, however, that 

should Citation 1, Item 1 be affirmed in this case, it should be reclassified to an other-thanserious violation with a revised penalty amount of $12,471.00. (Stip. 127). 

The Commission has held that “[A]n employer who either creates or controls the cited 

hazard has a duty under § 5(a)(2) of the Act, 29 U.S.C. § 666(a)(2), to protect not only its own 

employees, but those of other employers ‘engaged in the common undertaking.’” McDevitt 

Street Bovis, 19 BNA OSHC 1108 (97-1918, 2000) (quoting Anning-Johnson, 4 BNA OSHC 

1193, 1199 (No. 3694, 1976)). “An employer may be held responsible for the violations of 

other employers ‘where it could reasonably be expected to prevent or detect and abate the 

violations due to its supervisory authority and control over the worksite.”’ Summit Contractors, 
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Inc., 23 BNA OSHC 1196 (No. 05-0839, 2010) (quoting McDevitt at 1109). 

The parties agree that a controlling employer is one who has general supervisory 

authority over the worksite, including the power to correct safety and health violations itself, or 

to require that others correct them. (Stip. 116). A general contractor normally has responsibility 

to assure that other worksite contractors fulfill their obligations with respect to employee safety 

matters that affect the entire construction site. (Stip. 118). A general construction contractor is 

normally well-situated to obtain abatement of safety hazards, either through its own resources or 

through its supervisory role with respect to work performed by subcontractors. (Stip. 119). 

Therefore, it is reasonable to expect that a general contractor will take reasonable action to assure 

compliance by subcontractors with required safety standards insofar as all employees on a 

construction site are affected. (Stip. 120). 

 In this case, Respondent had overall construction management authority on the library 

project. (Stip. 28). By virtue of its contract with the City of Austin, and as the jobsite general 

contractor, Respondent had authority through its officials and agents to stop construction work 

performed by subcontractors such as HEW and CVI when hazardous conditions were found, and 

to prevent them from continuing work due to safety concerns. (Stips. 94, 113). Respondent’s 

onsite safety managers had actually exercised control over jobsite safety at the library project by 

stopping subcontractor work previously, and by removing subcontractor employees from this 

jobsite. (Stips. 99, 100). 

It is undisputed that Respondent’s Project Superintendent, Respondent’s Area 

Superintendent, and Respondent’s Safety Manager each walked portions of the library project on 

a daily basis, which occasionally included the Seaholm Substation East Screen Wall. (Stips. 85, 

93, 95-98). Respondent’s Area Superintendent Lawrence Harding and Respondent’s Project 
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Superintendent Jay Herzing were actually present when CVI employees were performing work

in the unprotected area of the excavation. (Stips. 24, 26, 76, 77, 81; Exs. 5, 6, 7). It is further 

undisputed that Respondent knew that on March 4, 2015, the work area at the Seaholm 

Substation East Screen Wall was not properly protected from cave-ins. (Stips. 77, 86, 87, 101, 

114). Despite knowledge of CVI employees working in violative conditions, Respondent failed 

to adequately enforce CVI’s compliance with safety and health requirements. (Stip. 115). 

The stipulated record clearly establishes that Respondent had sufficient control and 

authority over this jobsite, including subcontractor CVI and its employees, to reasonably be 

expected to prevent and/or correct the violation in this case. Respondent’s management 

employees present at the excavation could have easily prevented the CVI employees from 

working in the unprotected area along the vertical wall, and/or ordered them to come out of the 

unprotected area once Respondent’s management employees observed them. Respondent did 

neither. Accordingly, Citation 1, Item 1 would be affirmed under applicable Commission case 

law. Summit Contractors, Inc.; McDevitt Street Bovis; Anning-Johnson, supra. 

However, this violation occurred at a jobsite in Austin, Texas, which is in the 

geographical jurisdiction of the U.S. Court of Appeals for the 5th Circuit. In 1981, the Fifth 

Circuit clearly ruled that the OSH Act, and regulations implemented thereunder, serve to protect 

an employer’s own employees from workplace hazards. Melerine v. Avondale Shipyards, Inc., 

659 F.2d 706 (5th Cir. 1981). In a case involving a subcontractor employee’s negligence action 

against higher level contractors, the Court unambiguously stated, “OSHA regulations protect 

only an employer’s own employees.” Id. at 711. On that basis, the Court concluded that the 

referenced OSHA regulations did not create or define any duty on behalf of a higher level 

contractor to the employees of a subcontractor. Id. at 712-13. The 5th Circuit expressly adopted 
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the rationale of a former Commission Chairman who wrote [in pertinent part] that status as an 

employer under the Act “does not necessarily mean that the [R]espondent is in violation of 29 

U.S.C. §654(a)(2) for every failure to comply with a safety standard which occurs within its 

worksite. For example, an employer cannot be held in violation of that subsection if his 

employees are not affected by noncompliance with a standard....” Id. at 711. “In this circuit, 

therefore, the class protected by OSHA regulations comprises only employers’ own employees.” 

Id. at 712. See also Southeast Contractors v. Dunlop, 512 F.2d 675 (5th Cir. 1975) [A contractor 

is not responsible for the OSHA violative acts of his subcontractors or their employees].

“Where it is highly probable that a Commission decision would be appealed to a 

particular circuit, the Commission has generally applied the precedent of that circuit in deciding 

the case – even though it may differ from the Commission’s precedent.” Kerns Bros. Tree 

Service, 18 BNA OSHC 2064 (No. 96-1719, 2000). And, as articulated by Respondent, “a 

holding by a court of appeals on a legal question is binding on the Review Commission in all 

cases arising within that circuit until and unless the court of appeals or the Supreme Court 

overturns that holding...” Smith Steel Casting v. Donovan, 725 F.2d 1032, 1035 (5th Cir. 1984). 

In this case, it is undisputed that the employees working in the unprotected excavation, 

exposed to the hazardous condition, were not employed by Respondent. They were employed by

subcontractor CVI. In addition, there is no evidence in the record that any of Respondent’s own 

employees were exposed to the hazardous condition. Accordingly, applying 5th Circuit 

precedent, Respondent cannot be liable for a violation of the Act based solely upon a 

subcontractor’s employees’ exposure to the condition. Accordingly, Citation 1, Item 1 must be 

vacated. 
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ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that 

Citation 1, Item 1 is VACATED.

SO ORDERED. 

 /s/ Brian A. Duncan Judge Brian A. Duncan

 U.S. Occupational Safety and Health Review Commission 

Date: April 28, 2017

Denver, Colorado