UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 13822
DONOVAN ELECTRIC COMPANY,
Respondent.

November 10, 1977

DECISION

BEFORE CLEARY, Chairman; and BARNAKO, Commissioner.

BY THE COMMISSION:

A decision of Judge John S. Patton is before us for review pursuant to 29 U.S.C. § 661(i). The Judge affirmed a citation alleging the Donovan Electric Company violated standards at 29 C.F.R. 1926.500(b)(1) and 29 C.F.R. 1926.500(f)[1] in that a floor opening was inadequately guarded. The principle issue before us is whether the Judge erred in concluding that he was not bound by the decision in Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975).

The alleged violation concerns three elevator shaft openings in a building under construction. The openings were equipped with guardrails and toeboards,[2] but not midrails. Employees of Donovan, the electrical subcontractor, worked on the floors having the openings. They passed within three to five feet of the openings so as to gain access to their work areas. The maximum fall distance through any opening was 17 feet. The general contractor had responsibility for installing and maintaining necessary guardrail protection.

Donovan’s policy, upon discovering unsafe conditions it could not itself correct, was to ask the responsible contractor to correct the conditions. If this was not done, Donovan warned its employees to avoid the unsafe areas. Donovan held weekly safety meetings with its employees; at some of these meetings it warned its employees to stay away from openings which existed on the jobsite, including those involved in this case.

The Judge affirmed the citation because Donovan’s employees were exposed to the hazard, citing our decisions in Robert E. Lee Plumbers, Inc., 75 OSAHRC 56/C2, 3 BNA OSHC 1150, 1974 1975 CCH OSHD para. 19,594, (No. 2431, 1975) and Alcap Electric Corp., 75 OSAHRC 60/A3, 3 BNA OSHC 1203, 1975 1976 CCH OSHD para. 19,640 (No. 1722, 1975). He rejected Donovan’s argument that he should follow the decision in Anning-Johnson, supra, in which the 7th Circuit held that a subcontractor on a multi-employer construction site is not responsible for nonserious violations it did not create or control, despite the exposure of its employees to the hazard.

Subsequent to the judge’s decision, the Commission decided Grossman Steel and Aluminum Corp. 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975 1976 CCH OSHD para. 20,691 (No. 12775, 1975), and Anning-Johnson Co. 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975 1976 CCH OSHD 20,690 (No. 4409, 1976). In those cases we declined to follow all aspects of the 7th Circuit’s Anning-Johnson decision. We held that, where the usual criteria establishing employer liability have been shown, a subcontractor on a multi-employer construction site who did not create a violation and lacked the ability to abate within the literal terms of the standard can defend by showing that it took realistic steps, as an alternative to literal compliance with the standard, to protect its employees. See also Mayfair Construction Co., 5 BNA OSHC 1877, (No. 2171, Sept. 26, 1977).

The Commission members differ on whether Donovan has established such a defense.[3] Commissioner Barnako concludes that Donovan’s warning to its employees to avoid the openings was sufficient under the circumstances of this case. Donovan’s employees did not work around the openings but only passed by them in going to their work stations. In his opinion, the existence of the toprails would in these circumstances have protected them generally against a fall. An accident was extremely unlikely, and respondent’s warning was a realistic alternative to literal compliance.

Chairman Cleary agrees that Donovan’s warning was specific and effective enough to pass muster, but he would conclude that Donovan should also have notified the general contractor of the conditions and requested correction.[4]

It has been the Commission’s policy, in cases of this type which were tried prior to the issuance of our decisions in Grossman and Anning-Johnson, supra, to afford the subcontractors an additional opportunity to establish the defenses announced therein. Chairman Cleary would afford Donovan such an opportunity. Commissioner Barnako thinks that Donovan has already established a valid defense, and would therefore vacate the citation. However, in view of the lack of a majority the judge’s decision is affirmed. Therefore, Commissioner Barnako agrees to an order giving Donovan the opportunity to establish a defense under Commission precedents.

Accordingly, the Judge’s decision is affirmed unless Donovan 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.

FOR THE COMMISSION

Ray H. Darling, Jr.

Acting Executive Secretary

Dated: November 10, 1977

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 13822
DONOVAN ELECTRIC COMPANY,
Respondent.

FINAL ORDER DATE: May 7, 1976

DECISION AND ORDER

APPEARANCES

Edward B. Gaines, Esq., and Stephen J. Simko, Jr., Esq., Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant

Donald E. Karraker, Esquire, Winter Park, Florida, on behalf of respondent.

STATEMENT OF THE CASE

Patton, Judge:

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of the Act.

The citation alleges that as a result of the inspection of a workplace under the ownership, operation or control or the respondent located at 875 Sterthaus Avenue, Ormond Beach, Florida, the respondent had violated section 5(a)(2) of the Act by failing to comply with Occupational Safety and Health Standard 29 C.F.R. 1926.500(b)(1) and 29 C.F.R. 1926.500(f). Hearing was held in Daytona Beach, Florida, on September 30, 1975. Both parties appeared and presented evidence. There was no motion to intervene.

ISSUES IN THE CASE

It was alleged that respondent, in a construction project at a hospital at the above-described location, failed to provide standard guardrails at the sixth and seventh floor service elevator openings and the sixth floor west general elevator opening, in violation of standards 29 C.F.R. 1926.500(b)(1) and 29 C.F.R. 1926.500(f). Respondent defends on the ground that the contractual obligation to maintain the property in accordance with the Act rested upon the general contractor and not upon the subcontractor and that, therefore, the subcontractor cannot be held to be in violation for failure of the property to meet standards of the Occupational Safety and Health Act.

EVIDENCE IN THE CASE

Respondent admitted in its answer that it is a corporation having a place of business and doing business in Ormond Beach, Florida. It was admitted that respondent has been, at all times relevant to this cause, an electrical contractor and is a business affecting interstate commerce within the meaning of the Act. The evidence establishes that respondent was performing electrical work in construction of a hospital, and that there were four elevator openings on floors six and seven, one of which had proper rails as required by the statute. The compliance officer, Mr. James R. Stock, testified that three of the openings did not have rails which complied with the standard. On the seventh floor, there was an elevator opening, which had a one-by-eight-inch wooden top rail, whereas the standard requires a two-by-four-inch rail, and it also had a toeboard, which was two by eight inches in size. There was no centerboard. On the sixth floor, there was a service elevator shaft with an opening, which had a top rail and toeboard, the top rail being two by eight inches, which was satisfactory, and the toeboard was satisfactory, but there was no middle rail (Tr. 31, 32, 33). There was another opening with a two-by-four-inch top rail and a two-by-four inch toeboard but no intermediate rail (Tr. 33). Seven of respondent’s employees worked these two floors, said employees having to pass within close proximity of said openings (Tr. 14, 15, 22, 43).

Mr. Dennis Swanson, who worked for respondent, stated that they regularly used the east stairwell to gain access to the seventh floor level, and after coming off of the seventh floor stairway, they passed in the area of a service floor elevator opening. If they wanted to walk into the center of the building and turned left, they walked right by the elevator opening. If they passed down the corridor in the regular manner, going to and from the jobsite on that floor, in the center of the floor, they came within several feet of the opening (Tr. 43, 44). They did not work in the shafts in front of the openings (Tr. 44). There was a distance of approximately six feet between the sixth floor and fifth floor of the elevator shaft (Tr. 45). The fall distance from the seventh to the fifth floor elevator opening was approximately 17 feet (Tr. 45). The top of the elevator area on the fifth floor is metal grade and on top of that for four or five inches is foam and then tar and gravel (Tr. 46).

Mr. Swanson was a union job steward and, prior to the issuance of the citation, he went to the general contractor probably once a week with a complaint; twice the employees walked off the sixth and seventh floors to work on the first floor because of the unsafe condition of the floors. These complaints were about things other than the guardrails. He could never recall making a complaint about the guardrails (Tr. 50, 51). Respondent took the position that men were to stay away from these unsafe areas until they were corrected. If Mr. Swanson and the foreman felt in area was unsafe, they would move the employees to a safe area until the hazard could be corrected. It was Mr. Swanson’s policy to go to the foreman and show him the dangerous area and then to the general contractor, and if the general contractor did not correct it, to move the men (Tr. 54). The respondent talked about the openings at safety meetings. Employees were told to stay away from openings, but it was impossible to completely do so, as they had to walk by them (Tr. 54, 55). Safety meetings were held once a week. It was brought up at one of the safety meetings that these openings were not properly guarded (Tr. 55). Mr. Swanson testified that he was an electrician and was not skilled in other tasks, therefore, would not have had the competence to install guardrails (Tr. 52). The respondent introduced the contract between the general contractor and the subcontractor, if being the position of the respondent that the general contractor had the responsibility of making corrections.

EVALUATION OF THE EVIDENCE

It is undisputed that the requirements for guardrails over openings were not complied with adequately. It is also undisputed that some guardrails existed over all openings. There were no middle guardrails on any of the openings, and the sizes of the boards did not, in all instances, meet the requirements of the standard. It also would appear that the employees had to pass in close proximity to the openings, and that the condition was considered serious enough that it was brought up in at least one of the company’s safety meetings. It was not controverted that the primary contractual responsibility to maintain the premises rested not upon the respondent but upon the general contractor. The sole issue for determination, therefore, is whether the respondent may be held in violation because it permitted its employees to work in conditions prohibited by the standard but which were not the contractual responsibility of the respondent.

In the case of Secretary v. Robert E. Lee Plumbers, Inc., 17 OSAHRC 639 (1975), the Review Commission stated: (at 639, 640)

Lee argues that, because it did not create the violative conditions or control those areas of the worksite where these conditions existed, it should not be found in violation. We have consistently rejected this argument. R. H. Bishop Co., 8 OSAHRC 930, BNA 1 O.S.H.C. 1767, CCH E.S.H.G. para. 17,930 (1974); California Stevedore & Ballast Co., 8 OSAHRC 811, BNA 1 O.S.H.C. 1757, CCH E.S.H.G. para. 17,931 (1974). As we said in R.H.Bishop:

In the usual case an employer is in violation of section 5(a) when his employees are affected by a violative condition. It is no defense that others created the condition, were responsible for its existence, or had control of the site where such condition exists. 8 OSAHRC at 931.

The Review Commission held in the case of Secretary v. Alcap Electrical Corp., 18 OSAHRC 1 (1975), as follows:

‘At issue is whether a subcontractor can be held liable under the Act if its employees are exposed to hazards resulting from conditions it did not create or control. We have consistently answered that affirmatively. See Secretary v. City Wide Tuckpointing Service Co., OSAHRC DOCKET NO. 247 (May 24, 1973), Secretary v. Gilles and Cotting, Inc., OSAHRC DOCKET NO. 504 (October 9, 1973), Secretary v. Hawkins Construction Co., OSAHRC DOCKET NO. 949 (May 20, 1974).’

However, the United States Court of Appeals for the Seventh Circuit has refused to approve the above-stated position of the Occupational Safety and health Review Commission. In the case of Anning-Johnson Co. & Workinger Electric, Inc. v. OSAHRC & Secretary of Labor, 516 F.2d 1081 (7th Cir. 1975), the court, in reversing the Occupational Safety and Health Review Commission, stated: (at 1085, 1090–91)

‘. . . In Robert E. Lee Plumbers, Inc., OSHRC DOCKET NO. 2431 (Jan. 30, 1974) (Commission Review Ordered), it was said:

Admittedly, the respondent is responsible for the ‘place of employment,’ yet no one should conclude that such responsibility imposed by the Act embraces the entire work project as shown in this case. This responsibility is the responsibility of the prime contractor. . . .

Assuming as we have just found that requiring abatement of hazards by subcontractors not responsible for the violating conditions is impractical, the only other alternative available is for such a subcontractor to remove his employees from the job after a violation is discovered and prior to a citation being issued. This again not only requires a subcontractor to be able to recognize non-serious violations outside its field of expertise, but is an unrealistic and economically unfeasible solution.

On many construction jobs the withdrawal of a single subcontractor, upon whose work future construction depends, could conceivably cause an entire project to shut down. The subcontractor who wants to avoid OSHA liability must guess at his peril that in fact a violation exists. . . .

For all of the foregoing reasons we have determined that the Secretary’s and Commission’s position cannot be sustained.

The respondent maintains that the United States Court of Appeals for the Seventh Circuit, having held that the subcontractor is not in violation if the primary contractual duty of complying with the law was on the general contractor, the Review Commission is bound by said decision, and the complaint in this case should be dismissed. It should be noted, however, that this case did not arise within the jurisdiction of United States Court of Appeals for the Seventh Circuit but within the jurisdiction of the United States Court of Appeals for the Fifth Circuit. This Judge is bound by the decisions of the United States Circuit Court of Appeals within the area of said Court’s jurisdiction. Decisions of the United States Circuit Courts of Appeals outside the jurisdiction of the case at bar are only persuasive and not binding. Until the Review Commission has reversed its position, this Judge is bound by the decisions of the Review Commission in all areas other than those governed by the United States Circuit Court of Appeals for the Seventh Circuit. The respondent raises a number of very substantial arguments as to why subcontractors should not be held in violation where respondent does not have the contractual responsibility of maintaining the property. The respondent contends that it should not be held in violation for the following reasons: for the respondent to abate would, according to the respondent, interfere with the work of others; furthermore, it is pointed out that ordinances make it unlawful to contract or perform work outside the scope of operation of the skills of a particular craft, it being required that contractors be licensed to work within a certain craft framework. Union contracts require that only employees of a certain craft be permitted to do work that is under the jurisdiction of that craft. Once subcontractors know they must not only discover but abate all hazards to which their employees are exposed, the immediate result will be a great duplication of effort in searching for defects. Employers have to be knowledgeable enough to detect a potential hazard and would not have that knowledge, in many instances, outside their own craft and skill. Many subcontracts provide that subcontractors shall do nothing to interfere with work of other subcontractors. A removal of employees from the job to prevent employees’ exposure to hazard would breach the contract with the general contractor. To require the subcontractor to abate would be to require multiple expenditures on discovery of violations, as well as cause duplicate expenditures, in many instances, in actual abatement.

These arguments are ably presented by the respondent and are persuasive. This Judge, however, feels bound by the decisions of the Occupational Safety and Health Review Commission until and unless said decisions are reversed by the Review Commission or until they are reversed by a court of higher jurisdiction within the area in which the case arises.

The contention of the respondent that a subcontractor would lack the skills to correct a hazardous condition does not absolve the respondent of the responsibility to correct such a condition. It is not necessary for an employer to do said work with his employees for the condition to be corrected. If the respondent’s employees lack the requisite skill, the employer must contract to have the work done by others. There is certainly nothing in the law that places an obligation for safety on a company only if it has people within its own employ who can make the corrections. As to the respondent being controlled by a contract with the general contractor, it should be noted that the Occupational Safety and Health Act has now been enacted for approximately five years. There would be very few, if any, construction contracts which would have been entered into prior to the time of enactment of the law. Any dilemma that an employer finds itself in as a result of a contractual obligation could very easily have been avoided by providing in the contract for the contingency of a violation of the Occupational Safety and Health Act. It could very easily be provided that the employees of an employer would not be required to work under conditions which the general contractor has not corrected, and it could be provided that if a subcontractor removes its employees from the job to avoid a hazardous situation there would be no breach of contract. Any other contractual provisions, such as that an employer cannot do work which would interfere with the work of another subcontractor, could certainly have been taken care of in the negotiation and execution of the contract. If the law places a pre-existing obligation upon parties, that obligation cannot be destroyed by a contract entered into by and between the parties subsequent to enactment of such legislation and subsequent to promulgation of such standards. To permit parties to enter into contracts which make compliance impossible, from a contractual standpoint, with the law would definitely be opposed to public policy. The dilemma that the respondent finds itself in because its hands may be contractually tied is of its own making. The enforceability of a contract which would require the respondent to violate federal law is also seriously open to question.

It should further be noted that there is no indication in the record that the respondent made any request of the general contractor that the guardrail situation be improved or that the respondent made any request of the general contractor for permission to erect adequate guardrails itself. There is some evidence of complaint to the general contractor by the labor organization, but this would not be an action by the respondent. There is no indication in the record that permission to erect adequate guardrails would have been denied by the general contractor. It would appear that the addition of a mid-rail and the substitution, in certain instances, of a larger board for the top or bottom rail is not the type of activity that would have damaged, impaired or interrupted the work of either the general contractor or the subcontractors. It would seem a very simple thing to nail a board securely across an elevator shaft opening. It would certainly not appear to be a situation where interference with work of subcontractors and of the general contractor would result from remedying the situation or where there would be any damage to the premises or any actual interference with anyone. Therefore, even if, in instances where the above factors are present a respondent should be absolved from violation of the Act, it would appear that in the case at bar, many of the problems suggested in the arguments of the respondent have not been shown to be present. It must therefore be held that the complaint has been sustained.

the proposed penalty for said violation is $30. It would certainly appear that, in view of the possibility of serious injury resulting from a fall, a penalty of $30 would be most minimal. It is alleged that said violation is a non-serious violation. It might be questionable as to whether the violation, under the circumstances, would be a serious violation; but, in view of the fact that only a non-serious violation is alleged, the question of whether the violation would be a serious violation cannot be considered in this case.

FINDINGS OF FACT

1. Respondent is a corporation having a place of business and doing business in Ormond Beach, Florida, where it is engaged in the business of an electrical contractor.

2. Respondent is engaged in a business affecting interstate commerce within the meaning of the Act.

3. On or about June 3, 1975, respondent permitted its employees to work in close proximity to openings to an elevator shaft which had inadequate guardrails. None of said openings had a mid-rail, and several of said openings had inadequate wooden rails at the top or bottom of said openings.

4. Said openings to the elevator shaft were on the sixth and seventh floors, and the distance from which an employee could have fallen from the sixth floor was six feet, and the distance from which an employee could have fallen from the seventh floor was 17 feet.

5. The primary contractual obligation to maintain the premises rested upon the general contractor. The fact that said openings to the elevator shaft were unsafe to employees of respondent was called to the respondent’s attention at a safety meeting.

6. The evidence does not establish that the respondent at any time requested the general contractor to correct said condition, nor does the evidence establish that the respondent requested permission of the general contractor to correct said condition itself.

7. The evidence does not establish that to correct said condition would have damaged the property or interfered with another contractor.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act.

2. A subcontractor is in violation of the Act if its employees are permitted to work in conditions which violate an occupational safety and health standard, notwithstanding the fact that the contractual responsibility for maintaining the premises is upon the general contractor rather than the subcontractor.

3. On or about June 3, 1975, respondent violated section 5(a)(2) of the Act and Occupational Safety and Health Standards 29 C.F.R. 1926.500(b)(1) and 29 C.F.R. 1926.500(f).

ORDER

Respondent, on or about June 3, 1975, violated section 5(a)(2) and Occupational Safety and Health Standards 29 C.F.R. 1926.500(b)(1) and 29 C.F.R. 1926.500(f). A penalty in the amount of $30 is assessed for said violation. The requirement that said violation be immediately abated is affirmed.

Dated this 7th day of April 1976.

JOHN S. PATTON

[1] These standard provide, in relevant part:

29 C.F.R. 1926.500

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

(f) Standard specifications: A standard railing shall consist of toprail, intermediate rail, toeboard, and posts, . . . (i) For wood railings, the post shall be of at least 2-inch by 4 inch stock spaced not to exceed 8 feet; the toprail shall be of at least 2-inch by 4-inch stock.

[2] The Judge found, with respect to the toprails and toeboards, that ‘several of said openings had inadequate wooden rails at the top or bottom . . .’ The evidence shows, however, that all of the toeboards and the toprails surrounding two of the openings were unquestionably adequate. The toprail around the remaining opening was of 1 x 8 stock instead of the 2 x 4 material specified in 1926.500(f). It is not clear whether the Secretary alleged that this railing was inadequate. In any event, it is clear that the absence of midrails is the heart of the Secretary’s case.

[3] Donovan contends that the evidence shows that it did ask the general contractor to install adequate guardrails, citing testimony by one of its employees that he did, on occasion, ask the general contractor to correct safety violations. This witness, however, could not recall whether he mentioned these particular openings to the general contractor. Thus, the Commission members agree the Judge correctly found that the evidence did not establish Donovan requested the general contractor to correct the conditions involved in this case.