OSHRC Docket No. 15598

Occupational Safety and Health Review Commission

November 16, 1977


Before CLEARY, Chairman; and BARNAKO, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Paul B. Underkofler, Jr., for the employer




BARNAKO, Commissioner:

A decision of Judge Dee C. Blythe is before this Commission for 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").   Judge Blythe found that the Respondent (Land) violated the safety standard at 29 C.F.R. 1926.501(f) in that its employee used a stairway composed of unfilled hollow pan-type treads. He did not assess a penalty.   We affirm that decision.

Land contracted to paint the exterior walls of a three-story building under construction.   Although most of the work was to be accomplished by spray painting, it was necessary to hand paint the window returns on the second floor.   Rather than gain access by means of a hydraulically-powered scissors lift scaffold being utilized by Land's other two employees, Mr. Hunt, the working foreman, used the stairway inside the building.   The stairs were fitted with hollow pan-type treads that had not been [*2]   filled with concrete or other solid material.

In finding that Land violated the standard, Judge Blythe rejected the argument that Land should not be held responsible because another contractor was responsible for the condition of the stairway. He noted that existing Commission precedent held employers responsible solely on the basis of their employees' exposure to a hazardous condition in violation of a standard, regardless of whether the particular employer created or controlled the condition.   He also rejected the arguments that Land did not and could not, with the exercise of reasonable diligence, have known of the violation, and that the Secretary had failed to prove that the exception in the standard regarding stairways under actual construction was applicable.

On review, Land takes exception to the Judge's disposition of these issues.   It also argues that the proof did not conform to the pleadings in that it was cited for failing to fill the stair treads, but was found in violation because its employees were exposed to the hazard.

We conclude that Land could have, with reasonable diligence, known of the violation for the reasons assigned by the Judge.   We also agree with [*3]   the Judge's holding that the exception in the standard created an affirmative defense, with the burden of proof being with Land.   See Griffin & Brand of McAllen, Inc. 76 OSAHRC 148/A10, 4 BNA OSHC 1900, 1976-77 CCH OSHD para. 21,388 (No. 4415, 1976); Stephenson Hnterprises, Inc., 76 OSAHRC 122/A2, 4 BNA OSHC 1702, 1976-77 CCH OSHD para. 21,120 (No. 5873, 1976), pet. for review filed, No. 76-4163 (5th Cir., November 19, 1976).

We reject Land's contention that the proof did conform to the pleadings.   Employee exposure or access to the hazard is a necessary element of any violation and need not be pleaded.   Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1976-77 CCH OSHD para. 20,448 (No. 504, 1976).

Since the Judge issued his decision, the Commission has reconsidered the question of the conditions under which a subcontractor on a multiemployer construction site will be held responsible for violative conditions to which its employees are exposed, but which it neither created or controlled.   We have held that, where the usual criteria establishing employer liability have been shown, such a subcontractor can defend by showing that it took realistic steps, as [*4]   an alternative to literal compliance with the standard, to protect its employees. Grossman Steel and Aluminum Corporation, 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976); Anning-Johnson Company, 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 4409, 1976).

Because the necessary elements of a violation have been established by the record (including non-compliance, access and knowledge of the violative condition), we conclude that Land was in violation of the cited standard.   Even if we were to find a lack of control, the record does not show that Land urged the responsible contractor to fill the treads or that it took other realistic measures to insure the protection of its employees.   Inasmuch as the hearing in this case antedates the decisions in Grossman Steel and Aluminum Corporation, supra and Anning-Johnson Company, supra, we will offer Land the opportunity to present additional evidence bearing on the defenses as discussed above.

Accordingly, the judge's decision [*5]   is affirmed unless Land requests a further hearing within ten days of receipt of this decision.