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Division of Occupational Safety and Health of Industrial Commission of v. Chuck Westenburg Concrete Contractors Inc.12/24/1998
t 1268. The general contractor had assumed full responsibility for providing all barricades, stairs, lights, and other safeguards for the safety and protection of all employees working at the site. See id. at 1270. Smith's duties under its contract with the general contractor were limited to the preparation and installation of wiring, fixtures, and electrical equipment in the building. See id. For this reason, the court found that erecting the missing guarding at the jobsite was outside of Smith's authority, which precluded it from literal compliance with the cited OSHA guarding regulations. See id. at 1269.
Nevertheless, the court recognized that Smith was required to take alternative reasonable and realistic measures to protect its own employees. See id. at 1268. Smith complained repeatedly to the general contractor about the missing guarding and had instructed its employees "to remain on the first floor, away from the hazardous areas, as much as possible," and "that 'if you have to go to the second floor, use the southeast stairway next to the wall, so if you trip, there is something to brace yourself against, the block wall.'" Id. at 1271-72. The court dismissed the citations against Smith, holding that its actions were sufficiently reasonable and realistic alternative measures to literal compliance with the OSHA regulations. See id. at 1273-74.
In this case, it is clear that Westenburg Contractors was not responsible for the soil retention system selected by Roof, nor did it have any authority to order or make corrective measures to the soil retention system. But Westenburg Contractors was not cited for the failure of the soil retention system. Instead, it was cited for failure to have a competent person on site who could have recognized the warning signs that the soil retention system might not have been performing as it should. Without someone so trained, Westenburg Contractors could not take reasonable and realistic steps to protect its employees because it was ignorant of the hazards that were present. For these reasons, we disagree that the multi-employer work site doctrine excuses Westenburg Contractors from having a trained competent person on site. We believe the review board erred by reversing this citation based on its finding that Roof was responsible for the soil retention system.
The next issue is whether Westenburg Contractors' failure to have a competent person on site as required by the OSHA regulations was a wilful or serious violation of the regulations. A serious violation of OSHA regulations occurs when three elements are present:
1. The existence of a condition or practice in a place of employment which violated a regulation.
2. The condition produced a substantial probability that death or serious physical injury could occur.
3. The employer had actual or constructive knowledge of the violation. A.R.S. § 23-401(12); Division of Occupational Safety & Health v. Ball, Ball, & Brosamer, 172 Ariz. 372, 374, 837 P.2d 174, 176 (App. 1992).
The standard of proof for a wilful violation is more stringent and requires evidence that the employer had actual knowledge of the OSHA regulation and acted voluntarily with intentional disregard of or plain indifference to that requirement. See id. at 377, 837 P.2d at 179.
Although ADOSH argues that Westenburg Contractors is guilty of both a wilful and a serious violation of 29 C.F.R. § 1926.651(k)(1), insufficient evidence establishes that Westenburg Contractors had the requisite knowledge and state of mind for a wilful violation. At the ICA hearing, Westenburg testified that he was the president of Chuck Westenburg Concrete Contractors and
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