ARMOR ELEVATOR COMPANY, INC.

OSHRC Docket No. 13940

Occupational Safety and Health Review Commission

July 11, 1977

[*1]

Before BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Charles E. Bergstrom, A. O. Smith Corp., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

A decision of Administrative Law Judge Jerome C. Ditore is before the Commission for review upon the granting of the Secretary of Labor's petition for discretionary review, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"].

Respondent, a subcontractor engaged in elevator construction work on a multi-employer construction worksite, was issued four citations alleging various serious and nonserious violations of the Act. The Judge affirmed the citations alleging serious violations, but vacated the citation alleging four nonserious violations of the Act. In vacating the nonserious violations, the Judge followed the Seventh Circuit's decision in Anning-Johnson Co. v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975), holding that employers on a multi-employer construction worksite would not be held responsible for nonserious violations of the Act that they neither created [*2] nor controlled.

The Secretary petitioned for review of the Judge's vacation of only one of the alleged nonserious violations, i.e., a failure to comply with the standard at 29 CFR 1926.500(b)(1), n1 and an order granting his petition was issued. n2 The Secretary asserts that the Judge erred in following Anning-Johnson Co., supra, and that a violation was established.

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n1 The standard reads:

1926.500 Guardrails, handrails, and covers.

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(b) Guarding of floor openings and floor holes. (1) Floor opening 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 exposed sides, except at entrances to stairways.

n2 The Secretary did not challenge the Judge's vacation of the other three alleged violations, nor did respondent challenge the affirmance of the citations for serious violations. These items are therefore not before us and the Judge's decision regarding them has become a final Commission order by operation of law. Section 12(j) of the Act.

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The Judge's decision was rendered before the Commission decisions in Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976) and Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976). See also Data Electric Co., Inc., 5 BNA OSHC 1077, 1977-78 CCH OSHD para. 21,593 (No. 13122, 1977) (lead and concurring opinions). In the cited multi-employer construction worksite cases, we declined to follow in all particulars the holding of the Seventh Circuit's Anning-Johnson decision. Specifically, we declined to make the distinction drawn by the Court between an employer's duty to abate noncomplying conditions depending on their classification as "serious" or "nonserious" violations. We held that when an employer on a multi-employer site knew, or with the exercise of reasonable diligence should have known, that the violative condition was hazardous, n3 it does not violate the Act if it establishes that it neither created nor controlled the hazardous condition and that its employees having access to the area of the hazard were protected [*4] by realistic alternative protective measures.

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n3 Respondent stipulated that it knew or with the exercise of reasonable diligence could have known of the existence of the violative conditions. Transcript at 5.

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On the record before us, the Secretary has established a prima facie case under section 5(a)(2) of the Act. A floor opening was neither guarded nor covered as required by the cited standard. Also, respondent's employees had access to the violative condition. n4 Although it is clear that respondent neither created the hazard nor controlled the area of the hazard in the sense that it could realistically rectify the condition in the manner contemplated by the standard, there is no evidence of alternative protective measures taken by respondent to protect its employees from the known hazard involved. For example, although the hazard resulting from the unguarded openings and holes was obvious, there is no indication that the general contractor or a controlling subcontractor was notified of the condition. n5

[*5]

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n4 At the start of the hearing respondent stipulated that its employees were exposed to the conditions described in the citations. Transcript at 5. In its brief to the Judge, however, respondent argued that its employees were not working in the area of the floor openings involved and that they only passed the area on their way to their work station. We find that the requisite access to the zone of danger presented by the unguarded floor openings was established to support a violation. See Gilles & Cotting, Inc., 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976).

n5 After the inspection respondent did remove its employees from the area, and notified the appropriate party that the conditions needed to be corrected. Action taken after the inspection, however, cannot form the basis for a defense to a citation issued for violations existing at the time of the inspection.

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Nevertheless, because the defenses outlined above were not declared at the time that this case was heard and decided by the [*6] Judge, we will afford respondent an opportunity to assert them and to present any additional evidence it may have bearing on the defense, if it so desires. Truland-Elliot, A Joint Venture, 4 BNA OSHC 1455, 1976-77 CCH OSHD para. 20,908 (No. 11259, 1976).

Accordingly, item one of the citation for a nonserious violation of the Act for failure to comply with 29 CFR 1926.500(b)(1) is affirmed and no penalty is assessed, unless respondent moves within ten (10) days from the issuance of this decision to remand for the taking of additional evidence relevant to the above-described defense.

It is so ORDERED.