CREST MECHANICAL CONSTRUCTION CO.
OSHRC Docket No. 14169
Occupational Safety and Health Review Commission
September 20, 1977
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Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Reg. Sol., USDOL
Bert Russo, Crest Mechanical Const., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
A February 26, 1977 decision of Administrative Law Judge J. Paul Brenton is before this Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970. n1 Judge Brenton vacated Item 1 n2 of a nonserious citation alleging that Respondent (Crest), a plumbing subcontractor on a multi-employer construction site, violated a construction safety standard requiring that wall openings be guarded. The issue on review is whether the Judge erred in his application of the reasoning in Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir., 1975) to the alleged violation of 29 C.F.R. 1926.500(c)(1). We conclude that the Judge erred in vacating this item of the citation.
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n1 29 U.S.C. 651 et seq., hereinafter "the Act."
n2 Item 1 of the citation alleged violation of 29 C.F.R. 1926.500(c)(1) (failure to guard wall openings). Item 2 of the citation alleged violation of 29 C.F.R. 1926.500(c) (failure to remove protruding nails from a plywood form). Judge Brenton affirmed this latter item, and Respondent did not take exception to the Judge's disposition. Therefore, Item 2 is not in issue in this decision.
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Crest does not dispute that the wall openings were unguarded, nor does it argue that its employees were not exposed to the violative conditions. Instead, at the hearing Crest chose to defend on the grounds that it neither created nor controlled the hazards; and that because of its lack of expertise and the presence of union and contractual restraints, it lacked the ability to guard the wall openings as required by the standard.
Judge Brenton agreed with Crest's contentions and vacated Item 1 of the citation and the proposed penalty of $40. Relying on Anning-Johnson v. OSHRC, supra, he concluded that a subcontractor on a multi-employer construction site who does not either create a violative condition or control the area where it exists is free of liability despite the exposure of its employees to the hazard.
Subsequent to Judge Brenton's decision, the Commission decided Grossman Steel and Aluminum Co., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976) and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 3694, [*3] 1976). In those cases we declined to follow all aspects of the Seventh Circuit's decision. We held that, where the usual criteria establishing employer liability have been shown, a non-creating, non-controlling subcontractor on a multi-employer construction site can defend by showing that it took realistic steps, as an alternative to literal compliance with the standard, to protect its employees. See also: Data Electric Co., 77 OSAHRC 28/C14, 5 BNA OSHC 1077, 1977-78 CCH OSHD para. 21,593 (No. 13122, 1977).
The evidence of record does not establish that Crest urged the responsible contractor to correct the conditions or took other steps to protect its employees. Therefore, on the present record Crest will be found in violation of 1926.500(c)(1). We will, however, offer Crest an opportunity to present any additional evidence it may wish bearing on the defenses announced in Grossman and Anning-Johnson, supra.
We have considered the penalty assessment criteria in section 17(j) of the Act. The violation was of low gravity since only two employees were exposed to the hazard. There is no evidence regarding Crest's prior history of violations of the Act. We have [*4] no reason to question its good faith. We conclude that a penalty assessment of $25 is appropriate.
Accordingly, Item 1 of the citation is affirmed and a penalty of $25 is assessed unless Crest requests a further hearing within ten days of its receipt of this decision. In such event, the order will be withdrawn and the case remanded for further proceedings consistent with this decision.