UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 4034, 4147
HAYDEN ELECTRIC SERVICES, INC.,
Respondent.

July 28, 1976

Jack S. Wallach, Atlanta, Ga., for Complainant.

Kenneth G. Stevens, Fort Lauderdale, Fla., for Respondent.

Review Commission Judge John J. Larkin.

Before Barnako, Chairman; Moran and Cleary, Commissioners.

CLEARY, Commissioner:

On April 23, 1974, Administrative Law Judge John J. Larkin issued a decision affirming two citations for “non-serious” violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 651 et seq. [hereinafter cited as ““the Act”] and vacating a citation for “serious” violation of the Act. The Secretary petitioned the Commission for review of the Judge’s decision which held that the citation for “serious” violation of 29 CFR Sec. 1926.500(d) (l)[1] be vacated because it was not established that there was employee exposure to the violation. The Secretary excepted to the holding, claiming there was employee expo-sure to the violation. The petition was granted on May 22, 1974.

Respondent, Hayden Electric Services, Inc., is engaged in electrical contracting work. In response to a complaint filed with the Secretary by one of respondent’s employees, an inspection of respondent’s workplace, a 19-story building under construction, was conducted by a compliance officer from the Department of Labor. The violation of Sec. 1926.500(d)(1) was based on respondent’s alleged failure to guard open-sided balconies where its employees were working on the 4th through 17th floors of the building. A $500 penalty was proposed.

It is uncontroverted that the balconies in question were unguarded, that they measured approximately 15-feet long by 8-feet wide, and that the compliance officer observed one of respondent’s employees installing a lighting fixture on a 16th floor balcony.

The general contractor of the project had the contractual responsibility for erecting guardrails.

In vacating the citation, Judge Larkin stated the following:

The evidence in this case is uncontradicted that the employee’s duties would not have required that he be closer than five to seven feet of the open sided balcony. He installed a light fixture the size of his hand, and wore a tool belt weighing 2½ to 3 pounds. To gain access, he crossed over a 5/8 to 7/8 inch threshold strip near the wall corner of the balcony. It is concluded that such facts are too nebulous to establish that there was employee exposure to a fall hazard. Absent proof of employee exposure to a fall hazard, it must be held that the Secretary has failed to carry his burden of proof.

Respondent has not filed a brief on review. The Secretary seeks reversal of the Judge’s decision. He argues that respondent’s employee was exposed to the hazard of falling from the balcony despite working several feet from the edge. The Secretary maintains that the preventive purpose of the Act and the cited standard requires finding a violation on the basis of potential exposure to the hazard.

The Commission has recently held that exposure of a subcontractor’s employees to a hazard resulting from a breach of an occupational safety and health standard gives rise to a duty under section 5(a)(2) to do what is realistic in order to protect the employees from the hazard. Anning-Johnson Co., 4 BNA OSHC 1193 (Nos. 3694 & 4409, 1976); Grossman Steel and Aluminum Corp., 4 BNA OSHC 1185 (No. 12775, 1976).

Here, an employee was observed working within five to seven feet of an unguarded balcony. We hold that work on the unguarded balcony is within the zone of danger resulting from the absence of the guard-rails. There was thus the requisite degree of exposure. Gilles & Cotting, Inc., 3 BNA OSHC 2002, CCH OSHD para. 20,448 (No. 504, 1976), on remand from 504 F.2d 1255 [2 OSHC 1243] (4th Cir. 1974).

What is realistic for protecting the exposed employees may fall short of full compliance with the terms of a standard by the subcontractor, although full compliance would be expected by the general contractor or the controlling subcontractor.[2] What is realistic depends upon a balance of the hazard involved with considerations of efficiency, economy, and equity. Cf. Anning-Johnson Co. v. O.S.H.R.C. and Brennan, 516 F.2d 1081 [3 OSHC 1166] (7th Cir. 1975). Pursuant to the Commission holdings in Anning-Johnson, supra and Grossman Steel & Aluminum Corp., supra a subcontractor who has not created a hazard and has no control over it may raise certain affirmative defenses to the alleged violation.

In this case, we hold that respondent’s employee was exposed to the hazard of falling that the cited standard was designed to prevent. Hence, there was a breach of employer’s duty under section 5(a)(2) of the Act to protect the employee. We therefore affirm the citation.

The hazard of falling from the balcony is “serious” within the meaning of section 17(k). The substantial probability of death or serious physical harm resulting from a fall is obvious. But because it was the contractual duty of the general contractor to erect the guardrails and because of the employer’s good faith, we assess a penalty of $100. A larger penalty would serve no remedial purpose in the circumstances of this case. In addition, we shall afford respondent an opportunity to present additional evidence and defenses consistent with this opinion and Anning-Johnson and Grossman upon the filing of a motion re-questing this opportunity within ten (10) days from the date of this order.

So ORDERED.

Dissenting Opinion

MORAN, Commissioner, dissenting:

The disposition ordered in Judge Larkin’s decision, which is attached hereto as Appendix A [omitted], is correct and should be affirmed. The uncontroverted evidence in this case establishes that the general contractor, and not respondent, was responsible for the erection of guardrails at this worksite. With this decision my colleagues have once again rejected the sound principle that the employer primarily at fault is the one who should be held liable. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081, 1086 [3 OSHC 1166] (7th Cir. 1975); Brennan v. OSAHRC and Raymond Hendrix d/b/a Alsea Lumber Company, 511 F.2d 1139, 1145 [2 OSHC 1646] (9th Cir. 1975). In its stead, they have adopted a rule that a contractor who has neither created a hazard nor is responsible for its correction has violated the Act unless he takes all ““realistic” measures and has done whatever is “reasonable” to protect his employees. For reasons which I substantiated at some length in my separate opinions in Secretary v. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409 [4 OSHC 1193], May 12, 1976, Secretary v. Grossman Steel & Aluminum Corporation, OSAHRC Docket No. 12775 [4 OSHC 1185], May 12, 1976, and Secretary v. Otis Elevator Company, OSAHRC Docket No. 8468 [4 OSHC 1219], May 14, 1976, this rule is not only nebulous, difficult to apply, and fundamentally unfair, but is totally inconsistent with the Act under which this proceeding was brought.

In Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 [3 OSHC 1166] (7th Cir. 1975), the Seventh Circuit held that the imposition of liability on subcontractors merely because their employees were exposed to nonserious violations, which they neither created, caused, nor were otherwise responsible for, did not fulfill the purposes of the Act.[3] Although the Court in that case specifically limited its holding to nonserious violations, the reasons advanced by the Court for its decision make this doctrine equally applicable to violations which have been categorized as “serious” under 29 U.S.C. Sec. 666(j). Furthermore, there is no practical difference between ““serious” and “nonserious” violations. This lack of difference was noted by the Ninth Circuit in Brennan v. OSAHRC and Hendrix d/b/a Alsea Lumber Company, supra at 1144 of 511 F.2d [2 OSHC at 1650]:

“Considering, as we must, the statute as a whole and 29 U.S.C. Sec. 666 in its entirety, we are convinced that Congress intended the same meaning for the word ‘violation” wherever it appears. Section (c), containing the only reference to non-serious violations, must be read in conjunction with Section (b). Both relate to employers who have merely ‘received a citation.’ Neither defines a violation. The sole difference between sections (b) and (c) lies in the mandatory assessment of penalty for serious violations and the permissive assessment for nonserious violations.” (Footnote omitted.)

As the Seventh Circuit pointed out, in Anning-Johnson, supra, the primary purpose of the Act is not to punish, but to achieve correction of safety hazards.[4] Requiring several employers to correct violations is no more likely to achieve this goal than requiring one to do so, and may, in fact, impede its attainment.

The Secretary’s position is premised on the theory that the more people responsible for correcting any violation, the more likely it will get done. This is, of course, not necessarily true. Placing responsibility in more than one place is at least as likely to cause confusion and disruption in normal working relationships on a construction site. Such a policy might in effect prove to be counterproductive.[5]

In addition to the confusion that complainant’s theory of multi-employer liability creates, the Court was also concerned about its impracticability and wastefulness. Such a scheme of liability requires that each craft at a construction site be familiar with the occupational safety and health standards pertaining to the working conditions of all other crafts at the site. Even in the rather improbable event that this level of knowledge can be achieved, multi-employer responsibility for violations will require multiple outlays of time and money to discover non-complying conditions. Moreover, if the responsible contractor cannot be persuaded to take the necessary corrective action once such a condition is discovered, a subcontractor who does not have employees qualified to correct a hazard has the choice of hiring employees with the necessary skills to correct the condition or of removing his employees from the worksite. Both alternatives are disruptive and costly, and neither is truly feasible.[6] A correction requirement placed upon such a contractor is also very likely to force him to violate the agreement under which his work is being conducted, collective bargaining contracts, or both. Consequently, to impose such a requirement is to require the employer to achieve the impossible.[7]

These considerations apply irrespective of how the alleged violation may be categorized. For example, unless successful in cajoling the general contractor to erect guardrails, respondent in this case, an electrical subcontractor, would either have to hire employees with the necessary skills to perform this task or remove his employees from the worksite to escape liability. Both alternatives may subject him to charges of contract violation. The same objective, abatement of the hazard, could be achieved if complainant directed his citation to the contractor responsible for the existence of this hazardous condition. It is impossible to perceive how the objectives of the Act are furthered by finding respondent in violation under these circumstances.

Finally, I disagree with the majority’s finding that an experienced workman “working within five to seven feet of an unguarded balcony,” on the facts present in this case is thereby “within the zone of danger resulting from the absence of guard-rails.” To so hold is to presume that the workman is not conscious of his surroundings-a presumption which has no validity whatsoever. Sidewalks along busy highways which present hazards equally as dangerous as unguarded balconies, are generally closer thereto than five to seven feet. There is no authority however, which seriously proposes that a guarding system be erected to prevent pedestrians from stepping off the sidewalk into the midst of oncoming traffic, nor does anyone presume that any pedestrian would be so oblivious of the traffic hazard as to do so. I am sure that the danger-consciousness of an experienced workman-used to working at high elevations-is far above that of the average pedestrian.

[No ALJ opinion available].

[1] The standard provides in relevant part as follows: Sec. 1926.500 Guardrails, Handrails, and Covers

* * *

(d) Guarding of open-sided floors, platforms and runways

(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. ...

[2] Section 5(a)(2) were interpreted as applying only to employers with enough control to comply fully with the terms of a standard, Commissioner Cleary would require under section 5(a)(1), the general duty clause, that a non-controlling subcontractor take interim measures to protect employees when that clause otherwise applies.

[7] “The employer’s duty, even that under the general duty clause, must be one which is achievable,” Brennan v. OSAHRC and Hendrix, d/b/a Alsea Lumber Company, supra, at 1144-1145, emphasis supplied.