WILLHERCO, INC.; BERMUDEZ & LONGO, INC.
OSHRC Docket Nos. 14021; 14019
Occupational Safety and Health Review Commission
October 13, 1977
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Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Freddie Franco-Garcia, Acting Regional Solicitor, U.S. Department of Labor
Jose A. Fernandes Paoli, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
A March 22, 1976 decision of Administrative Law Judge John S. Patton is before this Commission pursuant to Section 12(j) of the Occupational Safety and Health Act of 1970. n1 The parties to this consolidated proceeding agreed to submit the case for decision on separate stipulated records. Judge Patton affirmed one repeated, one nonserious, and two serious citations alleging that the Respondents, the plumbing and electrical subcontractors on the same multi-employer construction site, violated three construction safety standards. n2 The issue on review is whether the Respondents are liable for violations that they did not create and could not contractually correct. We conclude that the judge acted properly in affirming the citations.
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n1 29 U.S.C. 651 et seq., hereinafter "the Act."
n2 No. 14021 -- The serious citation alleged a violation of 29 C.F.R. 1926.500(c)(1)(i) (failure to guard elevator shaft wall openings).
No. 14019 -- The nonserious citation alleged a violation of 29 C.F.R. 1926.500(e)(1) (unguarded stairways); the serious, a violation of 29 C.F.R. 1926.500(d)(1) (unguarded opensided floors); and the repeated, a violation of 29 C.F.R. 1926.500(c)(1)(i) (unguarded elevator shaft openings).
[*2]
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The Respondents do not dispute that the violative conditions existed as alleged. The subcontractors knew that the hazards existed and that their employees had access to the zones of danger. They did not, however, create the hazards; and the general contractor was responsible for abating the conditions. n3 Although they were not specifically prohibited from installing the required protection, the subcontractors asserted that they would interfere with the general contractor's work by doing so. Both Respondents agree that if the issue of liability is resolved against them, there is no controversy as to the categorization of the various citations or the proposed penalties therefor.
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n3 Although the stipulations on these points are cast in terms of "representations" by the Respondents, we assume that, by agreeing to the stipulations, the Secretary concedes the accuracy of the representations.
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On these facts, Judge Patton affirmed the citations [*3] and the proposed total penalty of $3,115. Relying on the Commission's decisions in Robert E. Lee Plumbers, Inc., 75 OSAHRC 56/C2, 3 BNA OSHC 1150, 1974-75 CCH OSHD para. 19,594 (No. 2431, 1975) and Alcap Electrical Corp., 75 OSAHRC 60/A3, 3 BNA OSHC 1203, 1974-75 CCH OSHD para. 19,640 (No. 1722, 1975), he concluded that by exposing their employees to hazards prohibited by the Act, the subcontractors violated the Act even though other employers created the violations and the general contractor was contractually responsible for the worksite. Respondents urge that we reject this rationale and accept that of the Seventh Circuit in Anning-Johnson v. OSHRC, 516 F.2d 1081 (7th Cir. 1975), in which the Court held that a subcontractor on a multi-employer construction site who does not either create a violative condition or control the area where it exists is free of liability despite the exposure of its employees to the hazard.
We reject Respondents' argument. Subsequent to Judge Patton's decision, the Commission decided Grossman Steel and Aluminum Co., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976) and Anning-Johnson Co., 76 OSAHRC [*4] 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 3694, 1976). In those cases, we declined to follow the 7th Circuit's 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., 77 OSAHRC 28/C14, 5 BNA OSHC 1077, 1977-78 CCH OSHD para. 21,593 (No. 13122, 1977).
The evidence of record does not establish that either Respondent urged the general contractor to correct the conditions or took other steps to protect its employees. Accordingly, Respondents will be found in violation of the cited standards. We will, however, offer Respondents an opportunity to present any additional evidence they may wish bearing on the defense announced in Grossman and Anning-Johnson, supra.
Accordingly, the Judge's decision is affirmed unless Respondents request a further hearing within ten days of their receipt of this decision. In such event, the order will be withdrawn and the [*5] case remanded for further proceedings consistent with this decision.