“SECRETARY OF LABOR,Complaint,v.LEWIS & LAMBERT METALCONTRACTORS, INC.,Respondent.DECISIONBefore: BUCKLEY, Chairman; CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commissionis an adjudicatory agency, independent of the Department of Labor andthe Occupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act an has no regulatoryfunctions. _See_ section 10(c) of the Act, 29, U.S.C. ? 659(c).Lewis & Lambert Metal Contractors, Inc., a subcontractor at a buildingconstruction site in Fort Worth, Texas, was issued citations allegingfour violations of OSHA’s construction standards. The administrativelaw judge affirmed a citation item concerning an electrical violationbecause he found that Lewis & Lambert controlled the violative conditionand should therefore have abated it.We affirm this portion of the judge’s decision. The judge affirmedthree other citation items because he found that, although Lewis &Lambert did not create or control the violative conditions, it failed totake reasonable alternative measures to protect its employees. Wereverse the judge’s decision with respect to these citation items.Citation 2, Item 1: Ground-Fault Protection.Item 1 of citation 2 alleges that Lewis & Lambert violated 29 C.F.R. ?1926.400(h)(1)[[1]] by failing to use either ground-fault circuitinterrupters or an assured equipment grounding conductor program toprotect its employees on the site from electrical hazards. A complianceofficer from OSHA determined that ground-fault circuit interrupters hadnot been installed and that an assured equipment grounding conductorprogram had not been instituted. The employees were using electrictools to perform their work. At the hearing, the employer did not contend that it had complied withthe standard. It instead argued that it neither created nor controlledthe non-complying condition. Lewis & Lambert relied on the SeventhCircuit’s decision in _Anning-Johnson Co. v. OSHRC_, 516 F.2d 1081 (7thCir. 1975), which held that subcontractors working at a multi-employerconstruction site may not be cited for non-serious violations where thesubcontractor did not create, control, or have responsibility for thehazardous conditions. _Id_. at 1091. Lewis & Lambert argued that WalkerConstruction Company–the project manager and prime contractor–wasresponsible for safe conditions in general on the project and that Lewis& Lambert lacked the expertise to comply. However, both the complianceofficer and Lowry, Lewis & Lambert’s foreman, testified that Lewis &Lambert could have unilaterally installed a portable, commerciallyavailable ground-fault circuit interrupter. The employer did not showthat such things as contractual obligations or union jurisdictionalconcerns relieved it of responsibility for or prevented it fromliterally complying with section 1926.400(h)(1). On the basis of thisevidence, the judge properly concluded that Lewis & Lambert wasresponsible for the working conditions and had the ability to complywith the standard. Accordingly, item 1 of citation 2 is affirmed._Citation 1, Item 1, and Citation 2, Item 2 and 3: Guardrails_.Item 1 of citation 1 alleges a violation of section 29 C.F.R. ?1926.500(f)(1)(vi)(_b_)[[2]] in that a wire rope used as a guardrailaround an open elevator shaft was too slack to provide protectionagainst falling. The standards requires that guardrails have [a]strength to withstand at least the minimum requirement of 200 pounds toprail pressure with a minim of deflection.\” The compliance officerobserved two Lewis & Lambert employees fabricating and installing sheetmetal ductwork near an open elevator shaft on the third floor of the newbuilding.[[3]] One of the workers was working in a kneeling positionabout three to six feet away from the edge of the open shaft. Thefloor opening for the shaft was 20 feet wide by 40 feet long, and wasguarded by two wire ropes strung between metal posts embedded in theconcrete floor. The posts were about six to eight feet apart. The topwire rope–which was equipped with a turnbuckle for tightening–saggedabout eight inches between posts. When the compliance officer leaned onthe top wire rope, it sagged an additional 12 to 16 inches.Items 2 and 3 of citation 2 alleges respectively that Lewis & Lambertviolated 29 C.F.R. ?? 1926.500(d)(1) and (e)(1)(ii).[[4]] Section1926.500(d)(1) requires that \”[e]very open-sided floor or platform 6feet or more above adjacent floor or ground level shall be guarded by astandard railing . . . on all open sides . . . .\” Section1926.500(e)(1)(ii) requires that employers equip \”every flight of stairshaving four or more risers . . . [with] at least one railing on the openside . . . .\” The compliance officer observed that the stairwaylandings at four levels of the building were open on one side. thelandings were protected on two sides by I-beams and on a third side bythe stairs themselves, but were open on the fourth side. Conditionswere identical on all four levels. The potential fall distance wasseven feet to the next lower level. The compliance officer alsoobserved that the stair flights did not have railings on their open sides.Lewis & Lambert contended that it did not create, control or haveresponsibility for the violative conditions. Lowry, Lewis & Lambert’sforeman at the worksite, testified that the wipe rope guardrail asoriginally installed by ironworkers employed by another contractor. Lowry stated that sheet metal workers are not permitted to work on wirerope guardrails, and that if they had done so it would likely havecaused a jurisdictional dispute. Snow, a vice-president of Lewis &Lambert, testified that the company employed only sheet metal workers onthe project. Snow stated that under prevailing craft unionjurisdictional agreements in the region, sheet metal workers cannoterect or maintain wire rope guardrail, a jurisdictional dispute andpossible a job shutdown would occur. According to the project manualfor the job, Walker was responsible for worker safety, including theresponsibility for placing barriers and guardrails around flooropenings. In any event, Snow stated, Lewis & Lambert’s employees didnot have the tools or expertise to perform guardrail work around eitherthe elevator shaft or stairway openings. Snow conceded that it wouldnot have taken much physical effort to tighten the turnbuckle attachedto the wire rope guardrail around the elevator shaft. Forrester, the compliance officer, testified that it would only havetaken five minutes to tighten the turnbuckle on the guardrail. Forrester agreed that a jurisdictional dispute would likely result if aniron worker were to install or maintain a wooden guardrail. Thecompliance officer stated that during and following the inspection,workers employed by Walker corrected the non-complying elevator shaftand stairway guardrail conditions by installing 2×4 wooden guardrails.Lewis & Lambert’s foreman, Lowry, complained two or three times to theworksite representatives of Baldwin Construction Company and Walkerabout the lack of adequate elevator shaft and stairway guardrails. Walker’s worksite representative replied that he lacked jurisdiction tocorrect the safety problems. Lowry earlier had Baldwin’s representativewrite a letter to Walker complaining about safety problems at the site. The letter, dated June 5, 1980 (about eight weeks before the OSHAinspection), mentioned a lack of stairways and referred to \”a number ofother safety hazards that I haven’t brought to your attention but I knowyou are aware of . . . .The judge found that the inadequate railing surrounding the elevatorshaft and the lack of railings on the stairway violated the citedstandards and that the two Lewis & Lambert workers were exposed to fallhazards. The judge found that Lewis & Lambert had established that itneither created nor controlled these non-complying conditions. Thejudge concluded that Walker was contractually responsible for generaljob safety–including installing and maintaining guardrails around theelevator shaft and stairway–and that craft union jurisdictionalagreements prevented Lewis & Lambert’s sheet metal workers from erectingor maintaining wire rope or wooden guardrails without risking ajurisdictional dispute or job shutdown. The judge also found that Lewis& Lambert was bound by the project manual for the job and by itscontract with Baldwin, neither of which imposed the responsibility forerecting guardrails.However, the judge held that Lewis & Lambert failed to take reasonablealternative measures to protect its employees, citing the Commission’sdecision in _Anning-Johnson Co_., 76 OSAHRC 54\/A2, 4BNA OSHC 1198,1975-76 CCH OSHD ? 20,690 (No. 3694 & 4409, 1976). The judge found thatthe oral complaints to Walker and Baldwin by Lewis & Lambert’sforeman–coupled with the June 6, 1980, letter–were not a reasonablealternative measure. In the judge’s view, it should have been evidentto Lowry that his complaints to Walker’s on-site representative were notgoing to be acted upon. The judge therefore concluded that Lowry’scomplaints lacked sufficient forcefulness, and that Lowry should havecontacted a higher authority within Walker or had an appropriate officerof Lewis & Lambert do so. In the alternative, the judge held that Lewis& Lambert could have physically protected its workers by instructingthem to wear safety belts tied off to the wire rope guardrail or byproviding ladders for them to gain access to their work stations.Lewis & Lambert disputes the judge’s finding that it failed to takereasonable measures to protect its employees. The employer argues thatits efforts were realistic and reasonable, and that \”[to] require morespecific measures . . . would be beyond the policy of the Act . . . .\”The Secretary takes issue with the judge’s finding that Lewis & Lambertdid not control the elevator shaft guardrail violation. The Secretaryargues that it would have required no particular effort or expertise totighten the guardrail turnbuckle. The Secretary also contends that theemployer was bound under the guidelines of the Sheet Metal AirConditioning National Association to replace any guardrails it mighthave to remove in order to perform its contract.The Secretary also urges affirmance of the judge’s conclusion that theemployer failed to take reasonable alternative measures. The Secretaryargues that the letter to Walker was written 55 days before theinspection, \”an unreasonably long time period during which . . .employees were exposed to hazards.\” The Secretary also notes that theletter fails to mention any of the cited hazards and does not indicatethat Lewis & Lambert is the complainant. The Secretary contends thatany conversations with Walker that took place before the letter waswritten should not be considered because some of the cited conditionsdid not then exist.We agree with the judge that Lewis & Lambert did not create or controlthe elevator shaft or stairway guardrail violations, largely for thereasons he assigned. The Commission has recognized that an employer maybe prevented from abating a hazardous working condition due to unionjurisdictional rules. _See McLean-Behm_ _Steel Erectors, Inc_., 78OSAHRC 54\/A2, 6 BNA OSHC 1712, 1715, 1978 CCH OSHD ? 22,812, p. 27571(No. 76-2390, 1978). The record establishes here that Lewis & Lambertemployed only sheet metal workers at the worksite, and that craftjurisdictional agreements prevented those workers from working on orbuilding guardrails. Despite the apparent ease with which the elevatorshaft guardrail could have been tightened, Lewis & Lambert’s workerscould not have abated the hazard without risking a jurisdictionaldispute and a job shutdown. Furthermore, such workers did not have theexpertise or materials to fabricate guardrails for the stairs. Underour case law these facts establish that Lewis & Lambert did not createor control the cited guardrail hazards.However, we disagree with the judge’s conclusion that Lewis & Lambertfailed to take reasonable alternative measures. The alternative effortsa subcontractor is required to make were first discussed in _GrossmanSteel & Aluminum, Corp_., 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1189,1975-76 CCH OSHD ? 20,691, p. 24,791 (No. 12775, 1976)(footnote omitted):[An employer] can . . . attempt to have the general contractor correctthe condition, attempt to persuade the employer responsible for thecondition to correct it, instruct its employees to avoid the area wherethe hazard exists if this alternative is practical, or in some instancesprovide an alternative means of protection against the hazard. Wetherefore expect every employer to make a reasonable effort to detectviolations of standards not created by it but to which its employeeshave access and, when it detects such violations, to exert reasonableefforts to have them abated or take such other steps as thecircumstances may dictate to protect its employees.In a later decision, the Commission stated that the steps that must betaken depend upon what is realistic under the circumstances. _MayfairConstruction Co_., 77 OSAHRC 178\/A14, 5 BNA OSHC 1877, 1977-78 CCH OSHD? 22,214 (No. 2171, 1977). In determining whether an employer has madereasonable efforts to abate a condition, the Commission will examine theemployer’s overall conduct rather than any single act. _See WeisblattElectric Co_., 82 OSAHRC 28\/B3, 10 BNA OSHC 1667, 1982 CCH OSHD ? 26,058(No.79-2537, 1982). At a minimum the subcontractor should request thegeneral contractor to provide the necessary protection.We conclude that Lewis & Lambert’s efforts to have the guardrailconditions corrected were reasonable and satisfy our _Anning-Johnson_test. Lewis & Lambert several times attempted to have the generalcontractors correct the non-complying guardrail conditions. Its foremanhad Baldwin’s site representative write a letter to the Walkerrepresentative complaining about worksite hazards. The foremanpersonally raised these issues with Walker’s representative severaltimes before ad after the letter as written.[[5]] As we stated in_Dutchess Mechanical Corp_., 78 OSAHRC 59\/B14, 6 BNA OSHC 1795, 1796,1978 CCH OSHD ? 22,876, p. 27,679 (No. 16256, 1978), \”[the employer’sattempts to have the general contractors remedy hazardous conditions onthe worksite through both oral and written communications indicate aconcern for employee safety and health that is consonant with the goalsof the Act.\” In judging the reasonableness of Lewis & Lambert’sconduct, it bears emphasis that complaints to a general contractor aboutconditions such as these can nearly always be expected to be effective. General contractors have, under Commission precedent, been heldresponsible for such conditions by reason of their general supervisoryauthority and central position on a multiple-employer constructionsite. _See_, _e.g_., _Olson Construction Co_., 77 OSAHRC 176\/A2, 5 BNAOSHC 1857, 1859-60, 1977-78 CCH OSHD ? 22,197, p. 26,710 (No. 14683,1977). We therefore reverse the judge’s ruling that Lewis & Lambertfailed to take reasonable alternative measures to protect its employees._See_ _Novak & Co_., 84 OSAHRC _____, 11 BNA OSHC 1763, 1766, 1984 CCHOSHD ? 26,766, p. 34,235 (No. 80-7335, 1984).[[6]]We also reject the judge’s alternative finding that the Lewis & Lambertemployees could have ascended ladders to their work stations and tiedoff with safety belts once they reached their work stations. First,because the stairways here were unguarded only on the one side adjacentto the interior of the building and a fall would be to the next lowerlevel, it is reasonable to conclude that climbing the unguarded stairwaywas safer than ascending a ladder, especially when tools and materialswere to be transported to work stations. For this reason, the use ofladders would not constitute a reasonable alternative measure. Second,the use of safety belts and lanyards was not mentioned a the hearing byeither party or the judge as an alternative means of protection. Wetherefore could not adopt the judge’s finding that such measures were\”reasonable.\” In any event, the _Anning-Johnson_ defense does notrequire an employer to establish that it explored every conceivablemeasure in order to protect its workers from non-complying conditionsthat it did not create or control. It requires only that the employer\”make a reasonable effort to detect violations . . . [and] exertreasonable efforts to have abated . . . .\” _Grossman Steel & Aluminum_,4 BNA OSHC at 1189, 1975-76 CCH OSHD at p. 24,791. The record reflectsthat Lewis & Lambert has done so here.Accordingly, the judge’s decision is affirmed in part and reversed inpart. Item 1 of citation 1 and items 2 and 3 of citation 2 arevacated. Item 1 of citation 2 is affirmed, without penalty.FOR THE COMMISSIONRAY H. DARLING, JR.. EXECUTIVE SECRETARYDATED: OCTOBER 2, 1984————————————————————————FOOTNOTES:[[1]] The standard provides in part: ? 1926.400 _General requirements_.(h) Ground-fault protection–(1) General. . . . [T]he employer shall useeither ground-fault circuit interrupters as specified in paragraph(h)(2) of this section or an assured equipment grounding conductorprogram as specified in paragraph (h)(3) of this section, to protectemployees on construction sites. . . .[[2]] The standard provides: ? 1926.500 _Guardrails, handrails andcovers_. (f) _Standard specifications_. (1) A standard railing shallconsist of top rail, intermediate rail, toeboard, and posts, and shallhave a vertical height of approximately 42 inches from upper surface oftop rail to floor, platform, runway, or ramp level. The top rail shallbe smooth-surfaced throughout the length of the railing. Theintermediate rail shall be halfway between the top rail and the floor,platform, runway, or ramp. The ends of the rails shall not overhang theterminal posts except where such overhang does not constitute aprojection hazard. Minimum requirements for standard railings undervarious types of construction are specified in the following paragraphs:(vi) Other types, sizes, and arrangements of railing construction areacceptable, provided they meet the following conditions:(_b_) A strength to withstand at least the minimum requirement of 200pounds top rail pressure with a minimum of deflection[.][[3]] Lewis & Lambert had contracted with Baldwin Construction Companyto fabricate and install portions of the new building’s air handlingsystem. Lewis & Lambert’s vice-president \”presumed\” that Baldwin wasitself a subcontractor of the prime contractor and project managerWalker Construction Company.[[4]] The standards provide: ? 1926.500 _Guardrails, handrails, andcovers_. (d) _Guarding of open-sided floors, platforms, and runways_. (1) Every open-sided floor or platform 6 feet or more above adjacentfloor or ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(1)(i) of this section, on allopen sides, except where there is entrance to a ramp, stairway, or fixedladder. The railing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials couldcreate a hazard.(e) _Stairway railings and guards_. (1) Every flight of stairs havingfour or more risers shall e equipped with standard stair railings orstandard handrails as specified below, the width of the stair to bemeasured clear of all obstructions except handrails:(ii) On stairways less than 44 inches wide having one side open, atleast one stair railing on the open side. . . . [[5]]We disagree with the judge’s conclusion that Lowry should havecomplained to a more senior representative of Walker. Nothing in GothamElectric Co., 78 OSAHRC 1\/A14, 6 BNA OSHC 1265, 1266, 1977-78 CCH OSHD ?22,479, P. 27,095 (No. 16155, 1977)–on which the judge relied for theproposition that requests made to the general contractor must bedefinite and forceful–mandates a different result. In that case, therecord was not clear as to the nature and extent of requests made to thegeneral contractor to correct certain hazards. 6 BNA OSHC at 1266,1977-78 CCH OSHD at p. 27,095. Here , by contrast, the recorddemonstrates a continued effort by Lewis & Lambert to have the safetyconditions at the worksite improved.[[6]]Because Chairman Buckley concludes that Lewis & Lambert establishedthat it took reasonable alternative measures as required under existingCommission precedent, the Chairman does not decide in this case whetherCommission precedent correctly holds that an employer that did notcreate, control, or otherwise have responsibility for a hazardouscondition must further show that it took reasonable alternativemeasures. Following the Seventh Circuit decision in _Anning-Johnson Co.v. OSHRC_, the Commission reconsidered its own case law on the subject. In _Anning-Johnson_, _supra_, and Grossman Steel and Aluminum, supra,the Commission accepted the Seventh Circuit rationale that anon-creating and non-controlling subcontractor is nor liable fornoncomplying working conditions. However, the Commission decided thatthe employer who did not have actual or constructive notice of thehazardousness of the conditions. _See Anning-Johnson Co._, 4 BNA OSHCat 1198, 1975-76 CCH OSHD at pp. 24,783-84. The Commission apparentlyconcluded that the duty to take realistic alternative measures followedfrom the duty stated in section 5(a)(2) of the Act, 29 U.S.C. ?654(a)(2), to comply with standards. However, because section 5(a)(2)of the Act mandates employer compliance with specific standards, it isnot clear that this provision can be the source of an employer’sobligation to take \”alternative measures\” beyond or different from whatis required by specific standards. “