UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 16155
GOTHAM ELECTRIC COMPANY,
Respondent.

December 30, 1977

DECISION

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

BY THE COMMISSION:

This case is before the Commission pursuant to orders by Commissioner Barnako and Commissioner Moran[1] granting respondent’s petition for discretionary review. Administrative Law Judge Dee C. Blythe affirmed a citation alleging ‘nonserious’ violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. for failure to comply with four construction safety standards. A total penalty of $100 was assessed for the violations.

On October 21, 1975, a safety inspection was conducted at a worksite in Dallas, Texas, on which respondent was the electrical subcontractor. During the course of the inspection, the compliance officer observed one of respondent’s employees walk through an area strewn with rubble. This was subsequently cited as a violation of 29 CFR § 1926.25(a).[2] He also observed that the job-made ladders said to have been used by respondent’s employees to reach the upper floors of the building were without cleats or filler blocks. This condition was cited as being violative of 29 CFR § 1926.450(b)(12).[3]

The other items of the citation dealt with the lack of proper guardrails. Two openings similar to elevator shafts on the first floor and one on the second floor were alleged to have been without proper railings or covers, as required by 29 CFR § 1926.500(b)(1).[4] In addition the second, third, and fourth floors were alleged to have been opensided and without proper perimeter guarding or the equivalent, as required by 29 CFR § 1926.500(d)(1).[5] Respondent’s employees testified that their duties required working in proximity to these hazards. There is evidence that employees of respondent requested the general contractor to correct the housekeeping and guardrail hazards, but the record is unclear as to the nature and extent of these requests.

Although Judge Blythe held that respondent neither created nor controlled the conditions, he affirmed the citation because he concluded that respondent’s employees were exposed to the conditions. The Judge rejected respondent’s argument, based on Anning-Johnson Co. v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975), that a subcontractor on a multi-employer construction site is not responsible for non-serious violations it did not create or control, even though its employees are exposed to the hazards. He also found that Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir. 1975) was not applicable here.

Subsequent to the Judge’s decision, the Commission decided Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975 76 CCH OSHD para. 20,691 (No. 12775, 1975), and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975 76 CCH OSHD para. 20,690 (No. 4409, 1976). In those cases we declined to follow in all respects the Seventh Circuit’s Anning-Johnson decision. We held that, where the usual elements of employer liability are established, 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 may defend affirmatively 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., 77 OSAHRC 178/A14, 5 BNA OSHC 1877, 1977 78 CCH OSHD para. 22,214 (No. 2171, 1977); Donovan Elec. Co., No. 13822 (November 10, 1977).

Here, evidence establishes the exposure of respondent’s employees to the cited violations. On the record before us respondent has not proved any affirmative defense of the type described above. In particular, we cannot conclude that the requests made to the general contractor were sufficiently definite and forceful to have been a realistic alternative to literal compliance. However, because the Judge’s decision preceded Grossman and Anning-Johnson, and because there is evidence that respondent undertook some action to attempt to protect its employees, we affirm the Judge’s decision contingent upon respondent not requesting within ten (10) days an opportunity to assert the described defenses and to adduce evidence bearing on those defenses.

So ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

Acting Executive Secretary

Dated: December 30, 1978

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 16155
GOTHAM ELECTRIC COMPANY,
Respondent.

May 19, 1976

Appearances:

Arnold S. Battise, Esq., and Heriberto deLeon, Esq., of Dallas, Texas, for the Department of Labor

Thomas P. Goranson, Esq., of Dallas, Texas, for the Respondent

STATEMENT OF THE CASE

BLYTHE, Judge:

This is a proceeding brought pursuant to § 10 under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (the Act), contesting a citation issued by the complainant, the Secretary of Labor (the Secretary), against the respondent, Gotham Electric Company, Inc., under the authority vested in the complainant by § 9(a) of the Act. The citation, issued November 12, 1975, alleges on the basis of an inspection on October 21, 1975, of a place of employment located at 5323 Harry Hines, Dallas, Texas, that the respondent violated § 5(a)(2) of the Act by failing to comply with four standards promulgated by the Secretary. The pertinent allegations of the citation were as follows:

Citation No. 1

Item No.	Standard	Description of alleged violation
1	29 CFR 1926.25(a)	Housekeeping was not maintained at the following location: Construction site on the 2nd floor, north 1/2 section of structure.
2	29 CFR 1926.450(b)(12)	Ladder cleats were not inset and/or filler blocks were not installed. Job made ladder—location—north end of structure on 2nd, 3rd, and 4th floors.
3	29 CFR 1926.500(b)(1)	Floor openings at the following locations were not guarded by standard railings or covers: Openings similar to elevator shafts on the 1st floor, north end of structure (next to gangwall ramp), 2nd floor, north section of structure, and 1st floor, middle section of the building.
4	29 CFR 1926.500(d)(1)	Open-sided floors, more than six (6) feet above adjacent floor level in the following locations, were not guarded by standard railings or the equivalent on all open sides and no toeboards were provided: Wire rope cable (1) and toeboards on the 2nd, 3rd, and 4th floors, northwest end.

The standards involved are:

1926.25(a): During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

1926.450(b)(12): Cleats [of ladders] shall be inset into the edges of the side rails one-half inch, or filler blocks shall be used on the rails between the cleats. The cleats shall be secured to each rail with three 10d common wire nails or other fasteners of equivalent strength. Cleats shall be uniformly spaced, 12 inches top-to-top.

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.

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)(1) 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 violations were alleged to be other than serious, and the proposed penalties totaled $100 (none for Item 1, $30 for Item 2, $35 for Item 3, and $35 for Item 4). Notice of contest (contesting all four items) was served on December 8, 1975; the complaint was served on December 23, 1975; and the answer was served on January 7, 1976. All pleadings appear to have been timely filed. No employees or representatives of affected employees have appeared or participated in this proceeding. The hearing was held on February 25, 1976, at Dallas, Texas; both sides have submitted briefs; and the matter is now ripe for decision.

THE ISSUES

The issues to be determined are:

1. Whether respondent, a subcontractor whose employees were exposed to the hazards, was responsible for nonserious violations which were created by others.

2. Whether respondent, with the exercise of reasonable diligence, should have known of the violative conditions.

DISCUSSION AND OPINION

There is essentially no dispute concerning the facts, many of which were stipulated. Respondent was one of a number of subcontractors engaged in the construction of a multi-storied building, respondent being responsible for the complete electrical installation. It had six employees at that work place. Since the existence of the violations is undisputed, and since respondent does not contend its employees were not exposed to the hazards, no useful purpose would be served by discussing the violative conditions in detail. It is clear from the stipulated facts and from the evidence adduced at the hearing that none of the violative conditions was created by respondent, and complainant does not contend otherwise. Thus it is possible to come to grips at once with the two issues raised by respondent, stated above.

The Commission consistently has held a subcontractor whose employees are subject to a condition violative of the Act is responsible even where others created the condition or control the site thereof, Secretary v. R. H. Bishop Co., 8 OSAHRC 930 (1974), if he knew or with the exercise of reasonable diligence could have discovered the presence of the violation, Secretary v. Savannah Iron and Fence Corp., 10 OSAHRC 1 (1974).

Two courts of appeals have differed on this question, Brennan v. OSHRC (Underhill Construction Corp.), 513 F. 2d 1032 (2d Cir., 1975), favoring the Commission’s position, and Anning-Johnson Co. v. OSHRC, 516 F. 2d 1081 (7th Cir., 1975), opposing it. In the absence of an applicable decision in this (the Fifth) Circuit, the Commission’s decisions are binding. Secretary v. Juhr & Sons, No. 2314 (January 1, 1976). This is so even though the Commission has stated in two recent decisions that it is reconsidering these issues in pending cases. Secretary v. Gilles & Cotting, Inc., No. 504 (on remand, February 20, 1976), and Secretary v. Electrical Contractors Associates, Inc., No. 10108 (February 24, 1976).

Respondent relies heavily on Anning-Johnson and contends that, even if it is not controlling in this Circuit, there is a Fifth Circuit case which is controlling, Southeast Contractors, Inc. v. Dunlop, 512 F. 2d 675 (5th Cir., 1975), reversing Secretary v. Southeast Contractors, Inc., 8 OSAHRC 285 (May 8, 1974), CCH 1973–1974 OSHD, ¶17,787.

Respondent’s reliance on Southeast Contractors is misplaced. It turned on the question of whether a respondent who leased a truck and its driver from another company was the driver’s ‘employer’ so that it was liable for the ‘use’ of the truck without the reverse signals required by 29 CFR § 1926.601(b)(4). In a per curiam opinion, the Fifth Circuit said,

We are in agreement with the well-reasoned dissent of Chairman Moran of the Occupational Safety and Health Review Commission in this matter, and especially that portion pertaining to the general rule that a contractor is not responsible for the acts of his subcontractors or their employees; accordingly, that the tractor driver was not an employee of respondent. Therefore, respondent was not using the motor vehicle involved in this case at the time of the accident within the meaning of 29 C.F.R. § 1926.601(b)(4), and the majority ruling of the Commission is erroneous.

While the foregoing language, if taken out of context, would seem to bolster respondent’s position, a close examination shows that it does not. The standard there involved was a ‘use’ standard, whereas all of the standards here involved are the ‘specification’ type. None of the standards here involved is prefaced with the words, ‘no employer shall use,’ found in 29 CFR 1926.601(b)(4). Thus the principles involved are quite different.

Respondent also contends, ‘In a recent decision [Secretary v. Bechtel Power Corp., No. 5064 (March 11, 1976), CCH OSHD ¶ 20,503], the Review Commission acknowledged the Anning-Johnson case. There the Commission stated:

The holding of the Seventh Circuit is narrow. Among other things, it is limited to a subcontractor having severe problems in abating hazards resulting from a violation of a standard.

But the Commission was distinguishing the Anning-Johnson case, not ‘acknowledging’ it in the sense respondent apparently means.

Respondent also contends that the complainant has the burden of proving that it had actual knowledge of the violative conditions, and it points out that the only evidence on this subject, from its president, Herbert Gold, was to the effect that he did not learn of the violations until after the inspection. It quotes from Horne Plumbing & Heating Co. v. OSHRC, —— F. 2d —— (5th Cir., 1976), CCH OSHD ¶20,504, at p. 24,508:

In summary, we conclude that it would be inconsistent with the purposes and policies of the Act and contrary to the express language of § 17(k) to penalize Horne for violations of which he had no knowledge, which he could not have foreseen, and which he had taken such elaborate measures to prevent.(Emphasis supplied.)

Horne involved the ‘idiosyncratic’ behavior of an employee, not a condition which was obvious and could be ascertained by even a casual inspection. The employer cannot stick its head in the sand and say that it did not know about the hazards to which its employees were subjected when it easily could learn about them. The conditions here involved must be distinguished, of course, from hazards requiring some form of expertise to detect them.

The only question remaining is that of an appropriate penalty for the violations. Here the respondent was charged with ‘other than serious’ violations, although two of the items involved lack of guardrails at elevations from the second to the fourth floors on the building. Normally, these would be classed as ‘serious’ violations, for obviously a fall from such a height would cause death or serious bodily injury. However, the employer’s size is small, and it has no history of previous violations. A maximum of six employees was exposed to the hazards, and the probability of an injury was moderate. Therefore, the penalties proposed by the Secretary appear to be appropriate.

FINDINGS OF FACT

On the basis of the pleadings, stipulations of the parties, and evidence of record, the following facts are found:

1. The respondent, Gotham Electric Company, Inc., is a corporation having a place of business at Dallas, Texas, is engaged in business as an electrical contractor, and at all time material to this proceeding was an employer engaged in a business affecting commerce, who has employees, within in the meaning of the Act. It has six employees, and in 1975 its gross income was about $1,000,000. (Pleadings, Tr. 88). Its contract for the job here involved provided for payments to it of $1,515,919 (Exhibit R–1).

2. At all material times the respondent was one of several subcontractors engaged in the construction of the Clinical Sciences and Animal Resources Center, University of Texas Health Science Center, at 5323 Harry Hines Blvd., Dallas, Texas (Tr. 67). It had no other jobs going at that time, and all of its employees were employed at said jobsite (Tr. 88).

3. The contract between respondent and the general contractor, La Roe Building Company, Inc., provided, ‘Subcontractor agrees to comply with all laws and regulations applicable to the work covered by this contract, including but not limited to the Occupational Safety and Health Act of 1970 . . .’ (Exhibit R–1).

4. Respondent, as a member of Northeast Texas Chapter, National Electrical Contractors Association (NECA), was bound by a collective bargaining agreement between NECA and Local Union No. 59, International Brotherhood of Electrical Workers (IBEW), which agreement, enter alia, provided for a safety program. As parts of this program, the agreement provides, ‘The Union agrees to inform all workmen of their responsibility for safe working habits and requirements of all Occupational Safety and Health Laws.’ This agreement, Exhibit R–10, covers installation of ‘all electrical equipment, appliances, apparatus, and materials,’ but does not specifically forbid requiring IBEW members to engage in non-electrical work, such as erection of guardrails. However, respondent had no carpenter in his employ (Stipulation 11).[6]

5. On October 21, 1975, when portions of the building had been erected to the fifth floor level, complainant’s compliance officer conducted an inspection of the jobsite and found the following conditions to exist;

(a) The floors, up to the fourth, were littered with scrap lumber with protruding nails, paper, wire, cans, metal and other assorted debris which exposed employees to a hazard of tripping and falling (Tr. 9–12). None of this debris was created, deposited or left by respondent. From time to time respondent’s employees were in proximity to or walked through such debris (Stipulation 5).

(b) Job-made ladders, which provided access between floors, had cleats which were simply nailed to, rather than being inset into, the side rails, and there were no filler blocks between the cleats. The hazard posed by these ladders was that the nails holding the cleats to the rails might pull out, allowing an employee to fall (Tr. 12–19).

(c) Four floor openings similar to elevator shafts on the first and second floors were not provided with standard guard railings or covers (Tr. 19–23). One of the floor openings on the first floor had a shaky guardrail which had no midrail (Exhibit C–8; Tr. 20). The hazard posed by these conditions was falling distances varying from 12 to 24 feet (Tr. 21, 25).

(d) Standard guard railings or the equivalent were not provided on open sides of the second, third, and fourth floors at the northwest end of the building. On the west side of the second floor there was no guardrail. On the third floor there was a sagging cable about 40 inches high, with no intermediate rail or toeboards (Tr. 23–27). The hazard posed to employees was falling distances up to 50 feet (Tr. 25).

6. On October 21, 1975, none of respondent’s employees had occasion to use the ladders mentioned in 5(b) or to go above the second floor (Tr. 42, 43, 57). However, they used the ladders and were on the first four floors on October 20, 1975, and prior occasions.[7] All of respondent’s employees were within the zone of danger of the hazards complained of, and at least two of its employees were actually exposed to each of said hazards.

7. Respondent knew or in the exercise of reasonable diligence should have known of the existence of said hazards and that its employees would be exposed thereto.

8. Respondent made no effort to prevent exposure of its employees to or to correct said violative conditions. All of said conditions were abated by the general contractor after it, too, was cited therefor (Stipulation 6).

CONCLUSIONS OF LAW

On the basis of the foregoing findings of fact, the following conditions of law are made:

1. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2. On October 21, 1975, the respondent was in nonserious violation of § 5(a)(2) of the Act by failing to comply with 29 C.F.R. 1926.25(a).

3. On October 20, 1975, the respondent was in nonserious violation of § 5(a)(2) of the Act by failing to comply with 29 C.F.R. 1926.450(b)(12), 29 C.F.R. 1926.500(b)(1), and 29 C.F.R. 1926.500(d)(1).

4. The sum of $100 is an appropriate civil penalty to be assessed for said violations pursuant to the provisions of § 17(j) of the Act.

ORDER

On the basis of the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Citation 1 for nonserious violations of 29 C.F.R. Part 1926, §§ 25(a), 450(b)(12), 500(b)(1), and 500(d)(1), be and it hereby is affirmed.

2. A civil penalty in the sum of $100 be and it hereby is assessed for said violations.

3. The proceeding be and it hereby is terminated.

DEE C. BLYTHE

ADMINISTRATIVE LAW JUDGE

May 19, 1976

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[1] Commissioner Moran’s term expired on April 27, 1977.

[2] § 1926.25 Housekeeping.

(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

[3] § 1926.450 Ladders.

(b) Job-made ladders

(12) Cleats shall be inset into the edges of the side rails one-half inch, or filler blocks shall be used on the rails between the cleats. The cleats shall be secured to each rail with three 10d common wire nails or other fasteners of equivalent strength. Cleats shall be uniformly spaced, 12 inches top-to-top.

[4] § 1926.500 Guardrails, handrails, and covers.

(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.

[5] § 1926.500 Guardrails, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent . . ..

[6] Respondent has moved, without opposition, to correct an apparent error at p. 69, 1. 12 of the transcript, where its president, Herbert Gold, is reported as answering ‘Yes, sir’ to the question, ‘Do you employ in your company any carpenters?’ The parties previously had stipulated to the contrary. The motion is granted.

[7] Complainant has filed a post-hearing motion pursuant to Rule 15(b), FRCP, to amend the complaint to conform to the proof to allege that the violation of §§ 450(b)(12), 500(b)(1) and 500(d)(1) of 29 C.F.R. Part 1926 occurred on October 20, 1975. This motion is not resisted and will be granted.