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[Felipe Devora written out with 713-6414676 circled above it]
Jim Patterson [initials]
April 21,1999
OSHA Construction Advisory Committee's Draft on Multi-Employer Citation
[the number 3 is crossed out] 5, including this page                                                   Thanks

  1. AGC/A should exert every effort to ensure this language is not adopted.

  2. The existing language in OSHA's Field Inspection Reference Manual (FIRM) has been in effect since c. 1990, and was contained in OSHA Instruction CPL 2.103, Sept. 26, 1994.

  3. Therefore, the legal system, OSHA, and employers/employee representatives have had over four rears in which to learn what OSHA really meant in this Instruction. More importantly. The construction industry has learned how the Review Commission and the appellate courts have interpreted this policy.

  4. There are three aspects of the proposed language that are of concern to me:

    1. The use of all feasible in paragraph C.6.a.2. Professor Rothstein's discussion* of No control-exposure uses the term realistic to describe the exposing contractor's responsibility to protect his employees. All feasible is much more strict than realistic, and its adoption would change the ground rules under which this issue has been played.

    2. The draft language deletes a coherent discussion of the employer's legitimate defenses. Currently, there are 4-3/8 column inches to legitimate defenses in the FIRM (Chapter III, C.6.b, as reprinted by BNA), which is more column inches than are devoted to employers who may be cited 3-1/8. The draft language significantly weakens the employers' defenses. Furthermore, the example paragraphs are not very helpful, as they use only two specific examples guardrails and electrical hazards and do not, in my opinion, clarify very much.

    3. The most troubling aspect of this draft, however, is paragraph C.6.e Contractual Control. This, in my opinion, attempts to summarize in approximately two pages, the decisions rendered by several layers of our legal system. Safety professionals, for the most part, are not equipped to adequately summarize court cases. This paragraph e should never make it out of the Multi-employer Workgroup.

  5. Kill the Entire Draft.

*Mark a. Rothstein, Occupational Safety and Health Law, 4th edition (West Group: St. Paul, Minn.). 1998, pp.224-231.