UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 10108
ELECTRICAL CONTRACTOR ASSOCIATES, INC.,
Respondent.

FINAL ORDER DATE: February 24, 1976

DECISION

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BY THE COMMISSION:

On August 11, 1975, Administrative Law Judge William E. Brennan issued a decision case affirming a citation for violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. Specifically, he affirmed two items alleging that respondent had failed to comply with the safety standards published at 29 CFR § 1926.500(b)(1) and (d)(1). A penalty of $25 was assessed for each violation.

Neither party has appealed the Judge’s decision. Commissioner Moran on his own motion ordered review on the following issue:

Was the Judge’s decision consistent with the ruling of Anning-Johnson et al. v. OSAHRC, —— F.2d —— (7th Cir., decided May 27, 1975)?

The parties have declined the opportunity to submit briefs on the issue. In these circumstances, and in the absence of a compelling public interest in the resolution of the issue on review we decline to pass upon the issue. Abbott-Sommer, Inc., —— BNA OSHC ——, —— CCH OSHD para. ___ (No. 9507, February 17, 1976). The possible application of the Seventh Circuit’s decision is before us in several other cases that have been briefed and that are to be decided in the near future. Accordingly, we affirm the Judge’s decision.

So ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: FEB 24, 1976

MORAN, Commissioner, Dissenting:

The last line of the preceding opinion asserts that the application of the Anning-Johnson rule[1] is to be ‘decided in the near future.’ Why, then, decide this case now? It certainly is not one of our older cases, for there are more than 300 Judges’ decisions which have been pending on review for longer periods of time than this case.

On the other hand, the assertion quoted above may be fallacious since Messrs. Barnako and Cleary also allege that there is an ‘absence of a compelling public interest in the resolution of the issue on review’ (whether this decision is consistent with Anning-Johnson).

If the latter allegation is true, why face up to the Anning-Johnson rule ‘in the near future’ or at any other time? I submit that inconsistency and evasiveness permeate the majority opinion: On the one hand they decline to address the issue because of a lack of compelling public interest in its resolution. On the other hand they are going to address the issue in the near future.

What really is happening here, of course, is a continuation of the gag-rule scheme enunciated in Secretary v. Francisco Tower Service, OSAHRC Docket No. 4845, February 6, 1976. In that case they avoided discussion of the Judge’s decision because, they said, ‘[t]he order for review does not present an issue.’ In this case there is an ‘issue,’ but it’s either not important enough for them to discuss or they’re going to discuss it some other time. Pay your money and take your choice.

Within a space of two weeks, decisions of this Commission have laid down three ways to avoid discussion of Judge’s decisions directed for review.

(1) The direction does not state an issue.

(2) The direction does state an issue but

(a) there is no compelling public interest in its resolution, or

(b) we intend to discuss it in the future.

All of these reasons, however, are purely subjective assertions by Messrs. Barnako and Cleary. There are no facts to prove the alleged lack of interest in the Anning-Johnson rule and, as to whether they will take it up in the near future, only time will tell. It is now the Winter of 1976. What does the phrase ‘near future’ mean? As they say in Spain Sabe?

In any event, the refusal by my colleagues to address the directed issue[2] once again leaves our trial courts uncertain as to just what position is to be taken by this Commission. Their failure to consider the relevance to the alleged violations in this case of the Circuit Court’s Anning-Johnson rule leaves unsettled the important question of subcontractor liability for safety infractions on multi-employer worksites.[3]

In Anning-Johnson it was held that subcontractors working on multi-employer employer construction sites were not liable for nonserious violations of standards to which their employees were exposed, but which the subcontractors neither created nor were responsible for, pursuant to their contractual duties. The Anning-Johnson holding conflicts with the heretofore, long-standing Commission rule that subcontractors may be cited for violations to which their employees are exposed, notwithstanding the fact that the violations are nonserious and were not created by, or the responsibility of, the cited subcontractor.[4]

In this case the respondent, who was an electrical subcontractor, was engaged in the installation of electrical conduit in a building under construction in Altoona, Pennsylvania. During the course of an inspection of that worksite, respondent’s employees were observed preparing to install two electric panel junction boxes in the vicinity of a mechanical shaft that lacked toeboards and was partially unguarded by a standard railing. Other employees of the respondent were observed working on conduit pipes near the similarly unguarded side of the roof deck some 48 feet above the ground.

As a result of this inspection, respondent was issued a citation alleging that it had violated 29 U.S.C.§ 654(a)(2) by failing to comply with the occupational safety standards codified at 29 C.F.R. § 1926.500(b)(1) and (d)(1),[5] respectively.

The facts are uncontroverted. However, the record establishes that in its capacity as a subcontractor, the respondent neither created nor was responsible for these hazardous conditions. Furthermore, the erection of guardrails and toeboards is clearly beyond the scope of the specialized duties performed by electrical workers.

Below, Judge Brennan affirmed the two violations. In a decision consistent with Commission precedent, he states:

‘The fact that the hazardous conditions, i.e., the partially guarded mechanical shaft . . . and the totally unguarded, opensided top floor . . ., may have been created by the general contractor or others is not a defense to these violations.’

‘All that is required to find a charged employer in violation is that its employees were exposed to the hazard or that the hazardous area was accessible to said employees.’

It is high time that the Commission abandon its position which predicates liability upon such arbitrary criteria. The well-reasoned opinion in Anning-Johnson addresses itself to the realities of divisional responsibility in the multi-employer construction situation.

Accordingly, I would vacate both alleged violations on the basis of the Anning-Johnson decision.

Since the Commission decision does not address any of the matters in Judge Brennan’s decision, the same is attached hereto as Appendix A.

APPENDIX A

Footnotes

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 10108
ELECTRICAL CONTRACTOR ASSOCIATES, INC.,
Respondent.

FINAL ORDER DATE: September 10, 1975

DECISION AND ORDER

APPEARANCES:

FOR THE SECRETARY OF LABOR Louis Weiner, Regional Solicitor Alan J. Davis, Esq. U.S. Department of Labor

FOR THE RESPONDENT Edward M. Petsonk, President

Brennan, W. E.; A.L.J.

This action arises under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c) (hereinafter the Act), to review a Citation for Nonserious Violations of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2) and penalties proposed thereon, issued pursuant to Sections 9(a) and 10(a) of the Act, 29 U.S.C. 658(a) and 659(a) on August 13, 1974 by the Secretary of Labor through the Area Director of the Occupational Safety and Health Administration for Pittsburgh, Pennsylvania (hereinafter Complainant), to Electrical Contractors Associates, Inc. of Altoona, Pennsylvania (hereinafter Respondent), following an inspection of a construction site at 17th Street and Eleventh Avenue in Altoona, Pennsylvania (hereinafter worksite) on August 1, 1974.

By Order dated October 21, 1974, the undersigned, sitting as a Motions Judge, granted Complainant’s Motion to Strike Respondent’s Notice of Contest, and unsigned letter dated August 15, 1974, date stamped ‘received’ by the Pittsburgh Area Director’s office on September 20, 1974, as not timely filed (R. p. 9).

After review, the Commission by its Order dated February 14, 1975 remanded this case for hearing, without prejudice to Labor’s raising the issue of whether the Notice of Contest dated August 15 was timely mailed (R. p. 16).

This case was thereupon assigned to the writer on February 19, 1975 (R. p. 17).

Trial was held in this matter on April 1, 1975 pursuant to notice dated February 24, 1975 at Johnstown, Pennsylvania.

Complainant was represented by counsel and Respondent by its nonlawyer President, Mr. Petsonk. No affected employees or representatives thereof desired party status.

Both parties were invited to submit post-trial briefs. Complainant filed its brief on June 23, 1975; Respondent did not file any post-trial documents.

Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations and admissions of the parties, it is concluded that the substantial, reliable and probative evidence of this record considered as a whole supports the following findings of fact and conclusions of law.

During the trial, evidence, in the form of the sworn testimony of Respondent’s President (Tr. 56–62) plus authenticated exhibits, Court’s Exhibits 1, 2 and 3 (the latter being the sworn statements of Mr. Petsonk and his secretary, Imogene Nicodemus attesting to the mailing of Respondent’s Notice of Contest, its letter dated August 15, 1974, on August 15, 1974) was received. Based upon this evidence of record, not existent at the time of my ruling upon Complainant’s Motion to Dismiss, it hereby is determined that Respondent did file a timely Notice of Contest pursuant to the provisions of Section 10(c) of the Act, 29 U.S.C. 659(c).

The Citation for Nonserious Violations sets forth the following:

Item	Standards	Description of Alleged Violation	Abatement Date
Item No.1	29 CFR 1926.500(b)(1)	A floor opening (mechanical shaft), located on the third floor east side, was not guarded by standard railings and toeboards. The mid-rail and toeboards were missing.	Immediately upon receipt of Citation
Item No. 2	29 CFR 1926.500(d)(1)	Three sides on the roof deck, approximately forty-eight (48) feet above ground level, were not guarded by standard railings and toeboards.	Immediately upon receipt of Citation

Penalties of $55 for Item No. 1 and $45 for Item No. 2 were proposed.

The cited Standards provide in pertinent part:

Item No. 1: 29 C.F.R. 1926.500(b)(1)

Floor openings shall be guarded by a standard railing and toe boards 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.

Item No. 2 : 29 C.F.R. 1926.500(d)(1)

Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

The following matters were stipulated to by the parties.

The Respondent company is incorporated in the State of New Jersey having its principal office in Altoona, Pennsylvania. It had no history of prior violations of the Act and no injuries were involved in this case. During 1973 it had from 25 to 30 employees on the average and had total sales of about two million dollars. It did not contest that it was an employer engaged in a business affecting commerce having employees within the meaning of Section 3 (5) of the Act, 29 U.S.C. 652(5). Based upon the evidence of record above referred to, supporting a conclusion that this Respondent did file a timely Notice of Contest, it is concluded that the Act applies to the employment performed at the worksite here involved within the meaning of Section 4(a) of the Act, 29 U.S.C. 653(a) and the Review Commission has jurisdiction of this matter under the provisions of Section 10(c) of the Act, 29 U.S.C. 659(c).

The evidence of record reveals that on August 1, 1974, Compliance Officer Barker conducted an inspection of a building under construction, an addition to the existing Bell Telephone building in Altoona Pennsylvania. Employees of Respondent company were engaged in installing electrical conduit in this partially completed building.

When the Compliance Officer reached the east side of the third floor of this building, he observed two of Respondent’s employees working within six inches of the edge of an open mechanical shaft which was about twenty feet square. This shaft was guarded with a top rail, but there was a complete absence of a mid-rail or toeboard. The two employees were engaged in working with and near 10 electric conduit pipes, protruding upward about two feet from the floor level, preparing to install two electric panel junction boxes. When photographed by the Compliance Office (See Exhibit C–1), both employees were in a crouched position so that their heads were below the top guardrail and the protruding upright conduit pipes were between the employees and the open mechanical shaft. The upright conduit pipes extended approximately four feet along the twenty-foot side of the partially guarded shaft. If the employees had not worked beyond the upright conduit pipes, I would conclude that they were not exposed to the hazard of falling some forty-five feet to the basement floor below. However, the Compliance Officer testified that he observed these man standing and walking, briefly, along that side of the mechanical shaft at which no conduit pipe was located (Tr. 46–49). This evidence is unrebutted in this record.

As this shaft was not covered, was only partially protected by a top guardrail, and as the employees were not wearing lifelines or any similar type of protective equipment, it is concluded that the nonserious violation of the Standard set forth at 29 C.F.R. 1926.500(b)(1) as charged in Item No. 1 of the Citation has been established.

On the northwest side of the top, open floor of this building, the Compliance Officer observed Respondent’s foreman Mr. Bettwy and another employee standing in a four-foot-wide space between a low concrete block wall and the edge of this floor, some forty-eight feet above ground level. They were working on conduit pipes at this location. The edge of this floor or ‘roof deck’ was completely unguarded. The Compliance Officer photographed this location after the men had been called back away from the edge of this floor (See Exhibit C–2).

At trial, after hearing this testimony and examining Exhibit C–2, Respondent’s President agreed that the described condition had existed. (He had been erroneously informed that a scaffold was extent at this point at the edge of this floor.)

Upon this state of the evidence it is concluded that a nonserious violation of the cited Standard set forth at 29 C.F.R. 1926.500(d)(1), as it pertains to this one side of this floor where employees were briefly exposed to the totally unguarded, opensided floor, forty-eight feet above ground level has been established. Item No. 2 is amended to specify a violation of the above-cited Standard at one side of this opensided floor, to conform to the issue tried and proof received.[6]

The fact that the hazardous conditions, i.e., the partially guarded mechanical shaft (Item No. 1) and the totally unguarded, opensided top floor (Item No. 2), may have been created by the general contractor or others, is not a defense to these violations.

‘It is no defense that others created the violative condition, were responsible for its existence, or had control of the site where such condition exists.’

Secretary of Labor v. R. H. Bishop, Co., 8 OSAHRC 930, 931 (May 30, 1974).

All that is required to find a charged employer in violation is that its employees were exposed to the hazard or that the hazardous area was accessible to said employees. See: Secretary of Labor v. Gilles & Cotting and OSHRC, 504 F.2d 1255 (C.A. 4, 1974), Secretary of Labor v. OSHRC & Underhill Construction Corp., —— F.2d —— (C.A. 2, 1975; Nos. 74–1579 and 74–1568).

There remains for determination an appropriate penalty to be assessed taking into consideration the four statutory factors set forth in Section 17(j) of the Act, 29 U.S.C. 666(i).

It is now well established that the Commission has wide discretion in penalty assessment (Secretary of Labor v. OSHRC & Interstate Glass Co., 487 F.2d 438 (C.A. 8, 1973)), although it is bound to consider the four factors of Section 17(j) of the Act, (Secretary of Labor v. Everhart Steel Construction Company, Inc., —— OSAHRC ——, OSAHRC Docket No. 3217, April 9, 1975).

The assessment of penalties by the Commission is not a factual finding but the exercise of a discretionary grant of power (Secretary of Labor v. Interstate Glass Company, supra; Beall Construction Company v. OSHRC; 507 F.2d 1041 (C.A. 8, 1974)).

The four statutory factors are the gravity of the violation, Respondent’s size, its good faith and any history or prior violations. The evidence herein reveals that the gravity of the two violations herein found to have existed at the worksite involved is relatively low. Two employees were very briefly exposed to each of these two hazardous arduous conditions. Respondent was cooperative with Complainant, had a reasonably good safety program holding safety meetings on a monthly basis with daily inspections to determine adherence to company safety rules and policies, among other matters.

It is a small electrical contractor in the Altoona area with 25 to 30 employees. No injuries were involved in this case and Respondent has no history of prior violations of the Act.

It is therefore concluded that a $25 penalty for each of the two nonserious violations herein found to have existed is appropriate and consistent with the purposes and objectives of the Act.

Based upon the foregoing findings and conclusions and pursuant to the provisions of Sections 10(c) and 12(j) of the Act (29 U.S.C. 659(c) and 661(i)), it is hereby,

ORDERED: that

1. The Citation for nonserious violations of 29 U.S.C. 654(a)(2) for failure to comply with the Standards set forth at 29 C.F.R. 1926.500(b)(1) (Item No. 1) and 1926.500(d)(1) (Item No. 2 as amended herein) is AFFIRMED.

2. A total civil penalty in the amount of $50 is assessed against the Respondent herein based upon the nonserious violations found to have existed at the worksite involved on August 1, 1974.

WILLIAM E. BRENNAN

Judge, OSAHRC

Dated: August 11, 1975

Hyattsville, Maryland

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[1] Anning-Johnson Co. v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975).

[2] See Secretary v. Abbott-Sommer, Inc., OSAHRC Docket No. 9507, February 17, 1976.

[3] The invocation of waiver in this case is particularly regrettable as this respondent, who the Judge found to be a small contractor, was represented pro se. Apparently, my colleagues feel that only ‘cases that have been briefed’ merit their attention.

[4] See e.g., Secretary v. Savannah Iron and Fence Corporation, 10 OSAHRC 1 (1974); Secretary v. R. H. Bishop Co., 8 OSAHRC 930 (1974).

[5] The affirmance of the citation for noncompliance with 29 C.F.R. § 1926.500(d)(1), a standard which pertains to the guarding of opensided floors, platforms, and runways, is also contra to the holding in Langer Roofing and Sheet Metal, Inc. v. Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975) that this standard does not apply to flat roofs.

[6] See: National Realty & Construction Co. v. OSHRC & Secretary of Labor, 489 F.2d 1257 (D.C. Cir., 1973)