Court Rules Generals Can Be Cited for Hazardous Conditions That Affect Subs

General contractors can be responsible for hazardous jobsite conditions that impact employees of subcontractors, such as contract glaziers, according to a recent ruling from the United States Court of Appeals for the Fifth Circuit. It says that general contractors can be cited under the Occupational Safety and Health Act or Occupational Safety and Health Administration (OSHA) regulations even if hazardous conditions under their control affect a subcontractor’s employees. As a result, they can be held responsible for a glazier’s injury if that injury was caused by hazardous jobsite conditions.

Background

Hensel Phelps Construction Co. entered into a contract with the City of Austin to build a new public library in 2010. The company’s onsite management personnel, including superintendents, project engineers and project managers, maintained control of the jobsite. Hensel Phelps contracted with subcontractor Haynes Eaglin Watters (HEW) to work on the Seaholm Substation east screen wall in 2014. Later that year, HEW contracted with sub-subcontractor CVI Development to complete demolition and excavation required for the wall.

OSHA cited both CVI and Hansel Phelps for willfully violating regulations
by exposing employees to a cave-in hazard from an unprotected excavation at a construction site. The citation against Hensel Phelps was pursuant to OSHA’s multi-employer citation policy. The policy states that “an employer who causes a hazardous condition who should have detected and prevented a violation through the reasonable exercise of its supervisory authority may be cited for a violation, whether or not its own employees were exposed to the hazard.”

In April 2017, the administrative law judge for the Occupational Safety and Health Review Commission’s Denver regional office reviewed the case and ruled in favor of Hensel Phelps using the Melerine v. Avondale Shipyards Inc. ruling as part of its reasoning. The Melerine ruling by the 5th Circuit in 1981 decided that OSHA regulations only protect an employer’s own employees. The Department of Labor appealed the Denver regional office’s decision.

Outcome

In the recent Appeals Court decision, the court cited a Melerine v. Avondale Shipyards Inc. ruling, saying “this court’s prior construction of the act was just a choice of one side of a ‘complex debate.’”

Hensel Phelps believes that U.S. Department of Labor Secretary Alexander Acosta’s interpretation of the act authorizing the controlling employer policy “would force general contractors to assert control over the activities of subcontractors,” increasing their liability. The court says that no controlling-employer citation under 29 USC 654(a)(2) would affect Hensel Phelps’ common law duties as an employer and reversal of Melerine is warranted.

The ruling dismisses Hensel Phelps’ interpretation that being held responsible for general jobsite conditions that result in subcontractor injuries means they are responsible for all subcontractor activities.

Contractors Continue to Embrace Technology

Technology is changing the way glazing contractors perform work on and off the jobsite by allowing for improved collaboration and project efficiencies during the skilled labor shortage. That trend is likely to grow. According to “The 2019 Construction Hiring and Business Outlook” survey from the Associated General Contractors (AGC) of America and Sage Construction and Real Estate, more than 40 percent of contractors surveyed said their firms will increase investment in technology this year.

Half of contractors expect to increase or maintain the number of projects involving (BIM, while 27 percent don’t expect to use BIM on any projects in 2019. No contractors said they expect to decrease the number of projects involving BIM. While 38 percent of firms said they don’t use BIM at all, the remaining contractors reported using BIM for:

• Clash detection;
• Constructability input into the design process;
• Visually communicating project
scope to clients;
• Designing 3-D models;
• 3-D model-based takeoffs for cost
estimating;
• Scheduling and workforce planning; and
• Safety.

Forty-one percent of contractors surveyed said they use lean construction principles on projects. Forty-four percent said they don’t use lean construction principles. Design-build is the most used collaborative project delivery method by contractors (44 percent), followed by design-assist (26 percent), public-private partnerships (13 percent) and integrated project delivery (11 percent). Sixteen percent of firms reported not using collaborative project delivery methods.

Thirty percent of contractors surveyed said their firms will increase investment in project management software and document management software in 2019. Estimating software, scheduling software, BIM and accounting software are other major technologies contractors expect will receive increased investment.

Most contractors reported that their companies are very comfortable (31 percent) or moderately comfortable (44 percent) with moving data to the cloud. Only 18 percent said their firms are not comfortable with the cloud.

When it comes to mobile software technology, some ways firms plan to use it are:

• Daily field reports (44 percent);
• Access to customer and job information from the field (40 percent);
• Employee time tracking and approval (40 percent);
• Sharing of drawings, photos and
documents (38 percent);
• Access to job cost and project reports
from the field (34 percent);
• RFI/issue tracking (26 percent);
• Equipment tracking (25 percent);
• Scheduling (25 percent);
• GPS tracking (e.g. fleet tracking) (20
percent); and
• BIM (14 percent).

More than half (53 percent) of contractors surveyed said their firm has a
formal IT plan in place that supports its business objectives, 28 percent said
their firm doesn’t have a formal plan and 9 percent said they don’t, but plan
to do so in 2019.

More than half of respondents (53 percent) were general contractors or
construction managers and 32 percent were specialty or subcontractors.

Union Membership Dropped Slightly in 2018

The union membership rate in the U.S. in 2018 dropped 0.2 percent
from 2017 after remaining unchanged from 2016 to 2017, according to data
from the U.S. Bureau of Labor Statistics. The overall percent of wage and
salary workers who were members of a union was 10.5 percent last year
with 14.7 million union workers. Thetotal number of union members has
dropped nearly in half since 1983, the first year for which comparable union
data is available, when the membership rate was 20.1 percent with 17.7 million union workers.

Membership in unions related to construction also decreased in 2018,
with 1,048,000 total union members, or 12.8 percent of the overall wage and
salary construction workers. That’s down from 14 percent in 2017 when
there were 1,102,000 members of construction unions. However, membership in construction-related unions remains higher than the national rate. The rate of construction workers represented by unions fell from 14.7 percent in 2017 to 13.8 percent in 2018.

Highest and Lowest Union Membership Rates by State

Hawaii: 23.1
New York: 22.3
Washington: 19.8
Alaska: 18.5
Rhode Island: 17.4
Virginia: 4.3
Texas: 4.3
Utah: 4.1
North Carolina: 2.7
South Carolina: 2.7

Source: The U.S. Bureau of Labor Statistics’ Union Membership Report

Characteristics of Union Members

The union membership rate continued to be higher for men (11.1 percent) than for women (9.9 percent) in 2018. That gap has narrowed since 1983 when the rate for men was 24.7 percent compared to 14.6 percent for women.

By age, union membership rates were highest among workers aged 55 to 64 in 2018. Workers aged 25 to 24 and 65 years and over had the lowest rate at 9.3 percent for each group. Union membership fell slightly for each age group in 2018. When looking at age and sex, the only group that saw an increase in overall union membership were men aged 65 years and over. Their rate increased from 9.1 percent in 2017 to 9.5 percent in 2018.

Briefly

Representatives for the Architectural Glass and Metal Technician certification program traveled to Philadelphia recently to beta test its exam in a new region. The knowledge-based test and performance-based test portions were hosted by the Finishing Trades Institute of Philadelphia. … Pacific Glazing Contractors based in Morgan Hill, Calif., and Forno Enterprises Inc. of Trout Creek, N.Y, have both completed the North American Contractor Certification (NACC) process. The NACC program is an ANSI-accredited, third-party process that was built for the architectural glass and metal installation community.

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