EMILE M. BABST CO.
OSHRC Docket No. 13980
Occupational Safety and Health Review Commission
August 1, 1977
[*1]
Before BARNAKO, Chairman; and CLEARY, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Caswirth, Regional Solicitor, U.S. Department of Labor
Allen A. Pooley, Emile M. Babst Co., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
A February 26, 1976 decision of Administrative Law Judge J. Paul Brenton is before this Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970. n1 Judge Brenton vacated a nonserious citation alleging that Respondent, a subcontractor on a multi-employer construction site, violated four construction safety standards. The issue on review is whether the Judge erred in his application of the reasoning in Anning-Johnson v. OSHRC, 516 F.2d 1081 (7th Cir. 1975) to the four items at issue in this case. We conclude that the Judge erred in vacating the citation.
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n1 29 U.S.C. 651 et seq., hereinafter "the Act."
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It is undisputed that the violative conditions existed as alleged. n2 Respondent knew that the conditions existed [*2] and that its employees had access to the zones of danger. Respondent, however, did not create the hazards, and could not abate within the terms of the standard. The prime contractor was contractually responsible for installing the required protection.
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n2 The citation alleged violations of 29 C.F.R. 1926.500(b)(1) (unguarded floor openings), 29 C.F.R. 1926.500(d)(1) (unguarded opensided floor), 29 C.F.R. 1926.501(b) and (f) (unguarded stairways and unfilled metal treads on stairways).
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On these facts, Judge Brenton vacated the nonserious citation and the proposed penalty of $280. Relying on Anning-Johnson v. OSHRC, supra, he concluded that a subcontractor on a multi-employer construction site who did not either create a violative condition or control the area where it existed was free of liability despite the exposure of its employees to the hazard.
Subsequest to Judge Brenton's decision, the Commission decided Grossman Steel and Aluminum Co., 76 OSAHRC 54/D9, 4 OSHC 1185, 1975-76 OSHD para. 20,690 (1976) [*3] and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 OSHC 1193, 1975-76 OSHD para. 20,690 (1976). In those cases we declined to follow the 7th Circuit's Anning-Johnson decision in its entirety. We held that, where the usual criteria establishing employer liability have been shown, a non-creating, non-controlling subcontractor on a multi-employer construction site can defend by showing that it took realistic steps, as an alternative to literal compliance with the standard, to protect its employees. See also Data Electric Co., No. 13122, 5 OSHC 1077, 1977-78 OSHD para. 21,593 (R.C., March 7, 1977).
The evidence of record does not establish that Respondent urged the general contractor to correct the conditions or took other steps to protect its employees. Accordingly, Respondent will be found in violation of the cited standards. We will, however, offer Respondent an opportunity to present any additional evidence it may wish bearing on the defense announced in Grossman and Anning Johnson, supra.
We have considered the penalty assessment criteria in section 17(j) of the Act. The violations were of low gravity in that three employees were only briefly exposed to the various [*4] hazards. Respondent is a small employer with no prior history of violations of the Act. We have no reason to question its good faith. We conclude that a total penalty assessment of $25 for all four violations is appropriate.
Accordingly, the citation is affirmed and a penalty of $25 is assessed unless Respondent requests a further hearing within ten days of its receipt of this decision. In such event the order will be withdrawn and the case remanded for further proceedings consistent with this decision.