Docket Nos. 3694; 4409

ANNING-JOHNSON COMPANY

OSHRC Docket Nos. 3694; 4409

Occupational Safety and Health Review Commission

May 12, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Steven H. Adelman, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The decisions of Judge J. Marker Dern, rendered on April 19, 1974 and May 3, 1974, have been directed for review and are before us pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"].

Anning-Johnson Company, respondent, is a subcontractor engaged in furnishing and installing acoustical ceilings, drywall systems, and insulation. Following an inspection of respondent's worksite in Atlanta, Georgia, the Secretary of Labor, complainant, in Docket No. 3694, issued a citation alleging four violations of the Act for respondent's failure to comply with the standards at 29 CFR § 1926.500(d)(1) and (e)(1), § 1926.25(a), and § 1926.150(c)(1). n1 Penalties totalling $135 were proposed by complainant. After inspection of respondent's worksite in Coral Gables, Florida, the Secretary, in Docket No. 4409, issued a citation alleging two violations of the Act for respondent's failure to comply with the standards at 29 [*2] CFR § 1926.500(d)(1) and (e)(1). The Secretary proposed a total penalty of $175 for these alleged violations.

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n1 The standards provide as follows:

§ 1926.500 Guardrails, Handrails, and Covers.

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(d) Guarding of open-sided floors, platforms, and runways

(1) Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where ther is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

* * *

(e) Stairway railings and guards

(1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails.

§ 1926.25 Housekeeping

(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

§ 1926.150 Fire Protection

* * *

(1) Fire extinguishers and small hose lines.

(i) A fire extinguisher, rated not less than 2A, shall be provided for each 3,000 square feet of the protected building area, or major fraction thereof. Travel distance from any point of the protected area to the nearest fire extinguisher shall not exceed 100 feet.

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In each case the parties agreed to a stipulation of the facts. Furthermore as to each case, both parties filed motions for summary judgment and in both instances, in separate opinions, the Judge granted respondent's motion.

In each of his two separate opinions, Judge Dern's decision to vacate complainant's citations was predicated on the conclusion that an employer cannot be held in violation of section 5(a)(2) of the Act "when his employees are exposed to [violative] conditions which he did not create or control." In addition, the Judge ruled that the hazard of falling off unguarded stairs "is believed to be of such low gravity as to constitute a situation embodying no hazard within the Act." Docket No. 4409 was directed for review by the Commission on May 20, 1974. Docket No. 3694 was directed for review on June 3, 1974. On June 12, 1974, the Secretary moved to consolidate the cases for the purpose of review and this motion was granted by the Commission. The issues before us are the following:

1. Is a construction subcontractor liable under the Act when its employees have access to hazards that [*4] it did not create and over which it had no control?

2. Assuming that respondent is found to have violated the Act, are the penalties proposed by the Secretary of Labor inappropriately high in view of the gravity of the violations and respondent's good faith?

Docket No. 4409 - The Facts

The Holder Construction Corporation was the general contractor for construction of an office building in Coral Gables, Florida. Respondent contracted with the general contractor to furnish and install insulating concrete, a gypsum drywall system, acoustical ceilings and the installation only of doors, frames, and hardware. As a result of an inspection by a compliance officer, respondent was cited for the following violations:

Item No. 1. Failure to insure guarding the entire perimeter of opensided floors by standard railing, 2nd floor through sixth floor in noncompliance with the standard at 29 CFR § 1926.500(d)(1).

Item No. 2. Failure to insure guarding of stairways by standard stair railings ground level through sixth floor in noncompliance with the standard at 29 CFR § 1926.500(e)(1).

Respondent had assigned approximately nine employees to the Florida worksite. These employees performed [*5] their work under the direction and supervision of respondent's foreman who, in addition to his construction work activities, was a representative of respondent responsible for directing and supervising respondent's employees at the workplace.

Concerning the alleged noncompliance with the standard at 29 CFR § 1926.500(d)(1), the stipulation of facts establishes, among other things, the following: (1) the walls of the building were not in place and, except for a chain guard affixed to the inside of column supports near the edge, each of the floors was open at its sides: 2) there was an area, proximate to the stairways on each floor, measuring about three to four feet in which there were no perimeter guards and respondent's employees normally passed within two to three feet of these completely unguarded areas when walking to and from their assigned workplace; (3) the work done by respondent near the perimeter was work on drywall soffits, at the ceiling slab height, in an area outside the chain guards; (4) all employees doing such work near the perimeter used safety belts tied off to concrete beams within the building.

Concerning the alleged noncompliance with the standard at 29 CFR [*6] § 1926.500(e)(1), the stipulation of facts establishes, among other things, that: (1) each of two concrete stairways in the north area of the building was open on one side; (2) there was no handrail on the closed side, nor standard stairrail on the open side; (3) each flight of stairs had more than four risers.

In addition, the stipulation states that respondent's superintendent knew of the violative conditions, yet directed and permitted employees to work in and traverse the hazardous areas. On the other hand, respondent's foreman repeatedly complained to the general contractor about the presence of the hazards, and in fact respondent requested that its insurer, Aetna Insurance Co., conduct an inspection of the workplace to determine whether violations of the Act were present. Respondent's asserted intention was to show the general contractor the insurance company's report in an effort to induce it to abate any situations that failed to comply with the published standards. While the insurance company did prepare a report for respondent it was not received until after the inspection that resulted in the citation at issue in this case.

The general contractor was also cited for [*7] its failure to comply with the same standards with which respondent allegedly failed to comply. The general contractor did not contest the citations and represented to the Secretary that the violations were timely abated.

Docket No. 3694 - The Facts

Respondent was engaged as the drywall subcontractor for a building being constructed in Atlanta, Georgia. It employed approximately 35 persons at the site. The worksite was inspected by the Department of Labor and a citation alleging the following violations was issued:

Item No. 1. Failure to provide standard railings on the periphery of all opensided floors or platforms 6 feet or more above adjacent floor or ground level in noncompliance with the standard at 29 CFR § 1926.500(d)(1).

Item No. 2. Failure to provide standard stair railings on all flights of stairs having four or more risers, such as those on the interior portion of Colony apartments in noncompliance with the standard at 29 CFR § 1926.500(e)(1).

Item No. 3. Failure to maintain during the course of construction, scrap lumber, and all other debris, cleared from work areas, passageways, and stairs, in and around buildings or other structures in noncompliance with [*8] the standard at 29 CFR § 1926.25(a).

Item No. 4. Failure to provide adequate portable fire fighting equipment in all areas where construction is in process, such as on the upper floors of Colony apartments in noncompliance with the standard at 29 CFR § 1926.150(c)(1).

The stipulated facts establish the presence of conditions contravening the requirements of the four cited standards. More specifically, building perimeter guards were noncomplying and in some instances nonexistent, stairways were unguarded, concrete and debris were scattered about the jobsite, and there was no fire-fighting equipment on the 22 floors of the building. Unlike the stipulated facts in the Florida case, Docket No. 4409, there is no indication that Anning-Johnson's employees doing work near the perimeter were protected by the use of safety belts.

As in the Florida case, respondent's superintendent knew of the conditions on which the citations were based and permitted employees to work in the hazardous areas. Respondent did, however, complain to the general contractor about the presence of the hazards. The general contractor for the Atlanta project was cited for violations of the Act under the same [*9] standards used as the basis for respondent's citation. The general contractor did not contest the citation and the violations were abated.

Multiple Employer Worksites and the Liability Problem

The difficulty encountered in applying labor laws to conditions peculiar to a common worksite of construction contractors is not unique to this Act. n2 While past decisions of both this Commission n3 and the Courts have dealt with certain facets of the problem, a comprehensive analysis has not been previously set forth.

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n2 See, Congressional debates on the Common Situs Picketing Bill (H.R. 5900), BNA 242 DLR E-1 (December 16, 1975) see also, National Labor Relations Board v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675 (1951).

n3 See, e.g., Robert E. Lee Plumbers, Inc., 17 OSAHRC 639, BNA 3 O.S.H.C. 1150, CCH E.S.H.G. para. 19,594 (1975); R. H. Bishop, 8 OSAHRC 930, BNA 1 O.S.H.C. 1767, CCH E.S.H.G. para. 17,930 (1974); Otis Elevator Co., 11 OSAHRC 793, BNA 2 O.S.H.C. 1221, CCH E.S.H.G. para. 18,822 (1974).

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In Brennan v. O.S.H.R.C. and Underhill Construction Corp., 513 F.2d 1032 (2d Cir. 1975), the court was faced with several issues, one of which concerned the burden of proof to be placed upon the Secretary in multiple employer construction site cases alleging violations of section 5(a)(2) of the Act. That case involved a construction subcontractor who had control over a hazardous area but who had no employees of his own exposed to the hazard. There were two significant aspects to the Court's holding. First, it held that an empoloyer who creates a hazard is responsible for the resulting danger posed to either his employees or employees of another. Second, and of more significance to the multiple employer construction site problem, the court held that the employer "in control of an area, and responsible for its maintenance" is responsible under the Act when it is shown that a violation has been committed and "that the area of the hazard was accessible to the employees of the cited employer or those of other employers engaged in a common undertaking." n4

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n4 513 F.2d 1031 at 1038.

[*11]

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In Anning-Johnson Co. v. O.S.H.R.C. and Brennan, 516 F.2d 1081 (7th Cir. 1975), a case involving the access of a construction subcontractor's employees to hazards neither created nor controlled by their employer, the Court distinguished between "non-serious" violations and "serious" violations in determining the subcontractor's liability.

The Court stated,

If the literal language of the Act does not clearly require imposing liability on subcontractors for exposure of their employees to non-serious violations, neither does it clearly indicate that subcontractors should have some kind of broad exemption.

516 F.2d 1081 at 1087.

Having noted that the text of the Act and its legislative history shed little light on the problem, n5 the Court concluded that the Act contemplated "realistic" enforcement, and proceeded to determine a construction subcontractor's liability for violations created by and within the control of third parties by balancing the Secretary's interest in enforcing standards against the countervailing interests of equity, economy, and efficiency.

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n5 The Seventh Circuit also noted that the Act was not drafted with the multiple employer worksite in mind. 516 F.2d 1081 at 1087 n.14. Since the very early days of the Act, commentators have recognized the problems engendered by the multiple employer situation. Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv. L. Rev. 988, 998 (1973); OSHA: Developing Outlines Of Liability In Multi-Employer Situations, 62 Geo. L.J. 1483 (1974).

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The court refused to endorse a policy whereby several different employers on a common construction site would be responsible for eliminating the hazardous condition by literal compliance with the applicable standard. It considered such multiple employer liability economically wasteful, undesirable in that it might necessitate litigation between the parties to affix liability, and in some cases impractical.

The Seventh Circuit considered it equally unreasonable and economically unfeasible to expect a construction subcontractor "to remove his employees from the job after a [*13] violation is discoverd and prior to a citation being issued." 516 F.2d 1081 at 1090. Requiring that employees be removed from construction sites because of "non-serious" violations, which could have the effect of interrupting or curtailing the construction project, was found to be inconsistent with the Act.

In this context, however, the Court made it clear that the shutting down of a construction site because of an "imminent danger" is not inconsistent with the Act. n6 It further stated that its holding does not make invalid the Secretary's policy of imposing liability on employers whese employees are exposed to serious violations of the Act.

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n6 See section 13 of the Act, 29 U.S.C. § 662.

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We find ourselves in general agreement with the principles enunciated in the cogent opinions of the Second and Seventh Circuit Courts of Appeals. As mentioned previously, however, these opinions deal only with some aspects of the problem. Circumstances demand a comprehensive analysis.

Exposure of one's employees to a hazardous [*14] condition is the element that gives rise to an employer's duty under section 5(a) of the Act (29 U.S.C. § 654(a)). n7 In the typical case arising under section 5(a)(2) of the Act (a case involving an employer at a common construction site is atypical) the Secretary carries his burden of proving a violation by establishing (1) that a specific standard applies to the facts, (2) that there was a failure to comply with the specific standard, and (3) that employees of the cited employer had access n8 to the hazard. n9

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n7 Robert E. Lee Plumbers, Inc., supra, n.3; R.H. Bishop, supra, n.3; Otis Elevator Co., supra, n.3; Savannah Iron and Fence Corp., 10 OSAHRC 1, BNA 2 O.S.H.C. 1065, CCH E.S.H.G. para. 18,233 (1974); California Stevedore and Ballast Co., 8 OSAHRC 811, BNA 1 O.S.H.C. 1757, CCH E.S.H.G. para. 17,931 (1974).

n8 In Gilles & Cotting, Inc., BNA O.S.H.C. , CCH E.S.H.G. para. (No. 504, 1976), on remand from 504 F.2d 1255 (4th Cir. 1974), the Commission defined the term "access." The Commission stated:

We would expect the proof to show that employees either while in the course of their assigned working duties, their personal comfort activities while on the job, or their normal means of ingress - egress to their assigned workplaces, will be, are, or have been in a zone of danger.

n9 For cases illustrating the application of this burden of proof see, e.g., Buckeye Industries, Inc., BNA 3 O.S.H.C. 1837, CCH E.S.H.G. para. 20,239, (1975); Akron Brick and Block Co., BNA 3 O.S.H.C. 1876, CCH E.S.H.G. para. 20,302 (1976); Allis-Chalmers Corp., BNA 3 O.S.H.C. 1629, CCH E.S.H.G. para. 20,065 (1975).

[*15]

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An employer may rebut the Secretary's allegations by showing (1) that the standard cited by the Secretary as the basis for his charge is not applicable to the situation at issue, (2) that the situation at issue was in compliance with the cited standard, or (3) that its employees did not in fact have access n10 to the hazard.

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n10 See note 8 supra.

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We see no reason to alter the Secretary's burden of proof because the violation arises at a common construction site. True, such sites frequently do not present a common industrial setting where employees have access to a hazard created and controlled by their employer at its plant or workplace. On the matter of safety, a common construction site involves complementary actions by employers designed to reduce or eliminate hazards that are actually controlled by one or more employers and to which their employees are exposed. The duties arising under the Act are to be read in [*16] light of the social purpose of assuring "so far as possible every working man and woman in the Nation safe and healthful working conditions." n11 For this reason and for the need to provide an effective enforcement program n12 to achieve the essential statutory purpose, we leave untouched the Secretary's burden of proof.

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n11 Section 2(b) of the Act; 29 U.S.C. § 651(b).

n12 Section 2(b)(10) of the Act; 29 U.S.C. § 651(b)(10).

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We do recognize, however, the availability to an employer of certain affirmative defenses; i.e., matter that would be a defense assuming the allegations in the citation and complaint are true. At the conclusion of the Secretary's case, an employer, in addition to any attempt at rebuttal, has an opportunity to demonstrate that it did not create the alleged hazard nor did it control the hazard such that it realistically had the means n13 to rectify the condition in the manner contemplated by the cited standard. n14

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n13 A significant factor in the decision of the Seventh Circuit in Anning-Johnson Co. v. O.S.H.R.C. & Brennan, supra, was its concern for the noncreating, noncontrolling employer's ability, within reason, to comply literally with the cited standard. 516 F.2d 1081 at 1086. In determining whether a respondent could have realistically complied with an abatement order issued pursuant to section 9(a) of the Act [29 U.S.C. § 658(a)], due consideration (but not equal weight) should be given to (a) the physical capability to comply or to order compliance, (b) the constraints imposed upon the work condition by trade unions, and (c) any contractual/monetary constraints. Note, however, that an employer's statutory duty to protect the safety and health of its employees cannot be delegated to others by contractual arrangements. R.H. Bishop Co., supra n.3; Robert E. Lee Plumbers, Inc., supra n.3, (concurring opinion).

n14 The statutory objective of an effective enforcement program [see n.11, supra] may be translated in terms of a practical assignment of evidentiary burdens. We find that an employer has greater access to proof of facts with regard to certain aspects of the case such as whether it created or controlled a particular hazard or whether it had or would reasonably be expected to have notice of a particular hazard. Under such circumstances, it is only reasonable to place the burden of proving such issues on the employer. See J.E. Roupp & Co., Inc., 7 OSAHRC 919, BNA 1 O.S.H.C. 1680, CCH E.S.H.G. para. 17,660 (1974) (Cleary, Coimmissioner, concurring in part and dissenting in part).

[*18]

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Once a cited construction subcontractor has established that it neither created nor controlled the hazardous condition, it may affirmatively defend against the Secretary's charge by showing either (a) that its employees who were or may have been exposed n15 to the hazard were protected by means of realistic n16 measures taken as an alternative to literal compliance with the cited standard, or (b) that it did not have nor with the exercise of reasonable diligence could have had notice that the condition was hazardous. n17 What we are holding in effect is that even if a construction subcontractor neither created nor controlled a hazardous situation, the exposure of its employees to a condition that the employer knows or should have known to be hazardous, in light of the authority or "control" it retains over its own employees, gives rise to a duty under section 5(a)(2) of the Act [29 U.S.C. § 654(a)(2)]. This duty requires that the construction subcontractor do what is "realistic" under the circumstances to protect its employees from the hazard to which a particular standard is addressed n18 even [*19] though literal compliance with the standard may be unrealistic. This holding is not inconsistent with that of the Seventh Circuit in Anning-Johnson Co. v. O.S.H.R.C. & Brennan, supra. In this case, as in Anning-Johnson, we would place the responsibility for full compliance with the cited standard only upon those who either created or controlled the hazardous condition. We do, however, go further than the Seventh Circuit by requiring the noncreating, noncontrolling subcontractor to protect the health and safety of its own employees, where possible, through the application of realistic protective measures. This requirement is consonant with the keystone of the Act - preventability. n19

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n15 See note 8 supra.

n16 While we make no distinction between "serious" and "non-serious" violations in applying the general theory of liability discussed in this case, we will consider the type and gravity of the hazard in determining what alternative measures are realistic. In speaking of the "type" of hazard, we are, as noted, referring to whether the alleged violation is "serious" within section 17(k) of the Act [29 U.S.C. § 666(i)] and in determining gravity, we look to our discussion of that element in National Realty & Constr. Co., 1 OSAHRC 731, BNA 1 O.S.H.C. 1049, CCH E.S.H.G. para. 15,188 (1972), rev'd on other grounds, 489 F.2d 1257 (D.C. Cir. 1973). Naturally, what is considered realistic will vary considerably with the circumstances. While it would be difficult for us to give examples to demonstrate what the realistic measures would be in every instance, we would expect a cited employer to take those measures that would be taken by a reasonable employer seeking to protect his employees and faced with the same conditions.

n17 Concerning the appropriateness of a notice issue, see McLean Trucking Co. v. O.S.H.R.C., 503 F.2d 8, 11 (4th Cir. 1974); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). In this connection, an employer's duty under section 5(a)(2) should be no less than of an employer under section 5(a)(1) in preventing exposure of its employees to "recognized hazards." Cf. National Realty and Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973).

n18 Commissioner Cleary would find that a contractor has a virtually identical duty under section 5(a)(1) of the Act [29 U.S.C. § 654(a)(1)], the general duty clause, if the specific standard and hence, the duty under section 5(a)(2) were found to apply only to those contractors capable of literal compliance. Commissioner Cleary would find a breach of the duty under section 5(a)(1) so long as (1) the hazard is "recognized" within the meaning of the section and (2) that there is a likelihood of death or serious physical harm.

n19 See Brennan v. O.S.H.R.C. and Underhill Constr. Corp., supra at 1039; Brennan v. O.S.H.R.C. and Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974); REA Express, Inc. v. Brennan and O.S.H.R.C., 495 F.2d 822, 826 (2d Cir. 1974); Brennan v. O.S.H.R.C. and Vy Lactos Laboratories, Inc., 494 F.2d 460, 463 (8th Cir. 1974).

[*20]

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Thus far we have considered two of the three possible circumstances n20 that would give rise to an employer's liability under the Act for a violation on a multiple employer construction site. Although not an issue in this case, we are constrained to mention this Commission's position with respect to the third possible situation. Under this third set of circumstances, we are dealing with (1) a contractor that has either created a hazard or controls a hazardous condition and (2) the only employees having access to the hazard are those of different contractors engaged in the common undertaking. We consider such a contractor to have a duty under section 5(a)(2) of the Act to comply fully with the standards. Thus, we agree with the Second Circuit's opinion in Brennan v. O.S.H.R.C. and Underhill Constr. Corp., supra, on this point for the reasons set forth by the Court. Furthermore, we note that typically a general contractor on a multiple employer project possesses sufficient control over the entire worksite to give rise to a duty under section 5(a)(2) of the Act either to comply fully with the [*21] standards or to take the necessary steps to assure compliance. n21

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n20 The two situations expressly dealt with are as follows: (1) a respondent who either created or controls a particular hazard to which its employees had access, and (2) a respondent whose employees have access to a hazard neither created nor controled by their employer.

n21 Cf. Anning-Johnson Co. v. O.S.H.R.C. and Brennan, supra; Clarkson Constr. Co. v. O.S.H.R.C. and Secretary of Labor, No. 75-1070 (10th Cir., January 21, 1976); contra, Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974); Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir. 1975).

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Anning-Johnson's Liability Under The Stipulated Facts

As to Docket No. 4409, the Florida case, while the facts establish a violation of the Act for failure to comply with the standard at 29 CFR § 1926.500(d)(1), the facts also establish (a) that respondent neither created nor controlled the hazardous condition and (b) that it effectively protected [*22] its employees by means of realistic measures taken as an alternative to literal compliance, i.e., the use of safety belts. Under these circumstances, therefore, the Judge properly vacated the Secretary's citation with respect to this item.

On the stipulated record before us, respondent appears to be in violation of the Act for exposing its employees to a hazardous condition, i.e., a failure to comply with the standard at 29 CFR § 1926.500(e)(1). Our close examination of the record suggests, however, that the parties' stipulation lacks the type of information needed to permit a determination with respect to one or both of the affirmative defenses available to respondent. Under such circumstances, we would usually remand the case for additional fact-finding. Considering the "test" nature of the case, however, and the likelihood that the project at issue has long been completed, we will remand the case only if respondent wishes to present additional evidence concerning these possible defenses. In the absence of a motion requesting a remand for this purpose, the citation of the Secretary in Docket No. 4409 insofar as it relates to respondent's failure to comply with the standard [*23] at 29 CFR § 1926.500(e)(1) will be affirmed. We assess no penalty because of the employer's good faith and the fact that an assessment would serve no remedial purpose here.

Concerning Docket No. 3694, the Georgia case, we note that respondent maintained a force of approximately seven employees whose sole task was to remove all debris from an area before respondent's employees entered to perform their employer's contractual obligations. In addition, this same work force removed all debris actually created by respondent's employees in the performance of their work. In light of these actions by respondent, the Judge properly vacated the Secretary's citation with respect to the alleged violation of the Act for failure to comply with the standard at 29 CFR § 1926.25(a). Concerning the remainder of the Secretary's citation in this case, we believe that the material presented in the stipulated record is sufficient to find respondent in violation of the Act for its failure to comply with the standards at 29 CFR § 1926.500(d)(1), § 1926.500(e)(1), and § 1926.150(c)(1). n22 As above in Docket No. 4409, and for the same reasons, we will remand the case if respondent moves requesting this [*24] action within 10 days from the issuance of this decision in order to introduce additional evidence on the outlined affirmative defenses. n23 Again, should respondent choose not to do so, the citation, insofar as it relates to items other than the alleged failure to comply with the standard at 29 CFR § 1926.25(a), will be affirmed. No penalty will be assessed for the reasons already given.

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n22 See note 1 supra.

n23 We are aware that in both cases respondent voiced its concern to the general contractor over the existence of the violations. In certain minor situations, a complaint registered with the general contractor may be an appropriate and realistic alternative measure. We do not believe, however, that the alleged violations in these cases are in this category.

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Accordingly, it is ORDERED: (a) that the decisions of Judge Dern with respect to respondent's alleged noncompliance with the standards at 29 CFR § 1926.500(d)(1) (Docket No. 4409 only) and § 1926.25(a) are affirmed insofar as they are consistent [*25] with this opinion; and (b) that the Judge's decision as to the remainder of both cases be reversed and the Secretary's citations concerning the remaining items of each case be affirmed unless respondent moves within 10 days from the issuance of this decision that the case be remanded for taking additional evidence on the defenses outlined in this decision. n24

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n24 I note the release this day of my colleague's opinion in Grossman Steel & Aluminum Corp., BNA O.S.H.C. , CCH E.S.H.G., para. (No. 12,775, 1976). Our opinions were written contemporaneously and, while our individual approaches to the multiple employer problem may differ in some respects, we do not differ essentially on its resolution.

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CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

Judge Dern correctly decided both of these cases, and his decisions, which are attached hereto as Appendicies A and B, should be affirmed. Accordingly, I concur with the Commission's affirmance of Judge Dern's vacation [*26] of two of the charges. I disagree, however, with the Commission's action on the remaining charges.

My colleagues wantonly assert that their "holding is not inconsistent with that of the Seventh Circuit in Anning-Johnson." I am sure that will come as a surprise to that Court when they read this hodgepodge.

The majority opinion in this case displays an absolute disregard of the sound rationale in Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975), in adopting a policy that contains the very pitfalls which the Circuit Court intended to eliminate by its decision. The Circuit Court wisely stated that:

"We fail to see how requiring several different employers to [correct the same conditions] fulfills the purposes of the Act any more effectively than requiring only one employer to do so. The Secretary's position is premised on the theory that the more people responsible for correcting any violation, the more likely it will get done. This is, of course, not necessarily true. Placing responsibility in more than one place is at least as likely to cause confusion and disruption in normal working relationships on a construction site. Such a policy might in effect [*27] prove to be counterproductive."

516 F.2d at 1089. Rather than paying heed to this warning, the majority concoct a principle that will cause greater confusion for employers in the future and, indeed, will jeopardize the right of many employers to notice of what is expected of them.

The majority decision leaves it to employers to guess at what is expected of them because my colleagues are going to decide in each case whether a subcontractor has taken the proper action concerning hazardous conditions which he did not create and was not responsible for correcting. Rather than ennunciating any clear definable duties for subcontractors, Messrs. Barnako and Cleary indicate that they will hold them liable on the basis of some broad general principles which are even more general than the general duty clause. 29 U.S.C. § 654(a)(1). Most lawyers would have thought that to be impossible. Any doubters have now had their doubts erased as the new Barnako-Cleary rule requires subcontractors to protect employees by "realistic measures," to "do what is 'realistic,'" to apply "realistic protective measures," and "to take the necessary steps to assure compliance." What does this mean? My colleagues [*28] not only do not say, but conclude that what is "realistic will vary considerably with the circumstances." They go on to state that they "expect a cited employer to take those measures that would be taken by a reasonable employer." That doesn't say anything either. It is therefore apparent that their holding leaves them free to apply arbitrary requirements, devised with the help of hindsight, in order to impose liability.

Obvious questions remain unanswered by the majority. What if a subcontractor recognizes a hazard, but the possible means of protection therefor are outside of his knowledge? Is the subcontractor required to obtain experts to advise him of alternative safety measures? What if he attempts to supply some type of protection but because of his lack of familiarity with the problem the equipment supplied does not adequately protect his employees? Is he still responsible?

Additionally, if we assume Commissioner Cleary intended "protected by means of realistic measures" to mean some type of actual worksite protection against the hazard, employers will become very confused as to what the Commission requires in light of my colleagues' other conclusions in the decision [*29] On their behalf, Chairman Barnako stated therein that:

"Simply because of subcontractor cannot himself abate a violative condition does not mean it is powerless to protect its employees. It can, for example, attempt to have the general contractor correct the condition, attempt to persuade the employer responsible for the condition to correct it, instruct its employees to avoid the area . . . or in some instances provide an alternative means of protection. . . ." (Emphasis added.)

By this test, "provid[ing] an alternative means of protection" is only one of several means available to employers for avoiding liability. Commissioner Cleary's test in the case sub judice, however, appears to limit escape from liability only if employers "provide an alternative means of protection." Which is it? Should employers attempt to comply with the Barnako test, or should they follow the Cleary test?

If the Barnako test, which appears to relieve employers from liability when they have attempted to have the general contractor correct the condition, [*30] is applied here, the question arises as to why respondent is held in violation of 29 U.S.C. § 654(a)(2)? Respondent informed the general contractor of the hazardous conditions. It even requested its insurance company to inspect the workplace to determine if any OSHA violations were present and to inform the general contractor of this report. Does not this satisfy the Barnako test?

In apparent reference to this conflict, Commissioner Cleary states in footnote 23 that informing the general contractor will only be allowed in minor situations. First of all, I have difficulty reconciling this position with his clearly written criterion set forth in the body which absolves respondent of one alleged violation on the ground that its employees "were protected by means of realistic measures taken as an alternative to literal compliance" with the cited standard. Assuming arguendo, however, that this criterion could be construed to include requests to correct by the subcontractor to the general contractor, what does Commissioner Cleary mean when he writes that this type of action may be an appropriate and realistic alternative only in "certain minor situations"? What are "minor [*31] situations"? The charges here were for nonserious violations of 29 U.S.C. § 654(a)(2). Is not this a "minor situation"? These questions also remain unanswered.

It is obvious to me that Messrs. Barnako and Cleary, in their usual prosecutorial manner, have forgotten the purposes of the Act. As the Circuit Court observed in its Anning-Johnson decision:

"The Act is designed not to punish but rather to achieve compliance with the standards and the abatement of safety hazards. The underlying rationale in effectuating these purposes by placing primary responsibility on employers is that employers have primary control of the work environment and should therefore insure that it is safe and healthful."

516 F.2d at 1088. Furthermore, my colleagues have also closed their eyes to the underlying rationale of that decision itself, which is that the employer primarily at fault is the one who should be held liable therefor. In this regard, the Circuit Court observed that:

"If anything at all can be gleaned from the words of [29 U.S.C. § 654(a)], it is that one who is to be charged with absolute liability be realistically in a position to comply with the promulgated [*32] standards."

516 F.2d at 1086 (emphasis added). The validity of this fault principle has been recognized in many other court opinions. See, for example, the decision in Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139, 1145 (9th Cir. 1975) which states that:

"Fundamental fairness would require that one charged with and penalized for violations be shown to have caused, or at least to have knowingly acquiesed in, that violation. Under our legal system, to date at least, no man is held accountable, or subject to fine, for the totally independent act of another."

Accord Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir. 1976). That date has now arrived unless this decision is reversed on appeal.

The general contractor in both of these cases was cited for the same violations as the respondent. He did not contest the citations and abated the unsafe conditions ennumerated therein. By failing to contest, he was required to pay the penalties proposed therefor. His failure to contest the citations was an admission of responsibility for the cited conditions. The evidence in the instant cases also indicates that he was responsible [*33] for the alleged hazards. What then is the sense of convicting this respondent who was not responsible for the alleged violations? The answer is simple. There is no sense in it. Messrs. Barnako and Cleary are simply again showing their propensity for punishing for the sake of punishment. That is not the purpose of the Act. Abatement - which is the purpose - has already been accomplished by citing the responsible contractor.

My colleagues also err in placing the burden of proof on employers to prove that they are innocent even where they are not responsible for the violative conditions in issue. They do this on the ground that "an employer has greater access to proof of facts" as to whether he was responsible for an alleged hazard and had notice of it. They fail to consider that the complainant has the authority to both inspect and investigate. 29 U.S.C. § 657(a)(2) and (b). In fulfilling his investigatory role, the complainant can interrogate witnesses and require the production of evidence. 29 U.S.C. § 657(b). A criminal investigator is not usually present when a crime is committed. He must therefore perfect his case after the fact by interrogating witnesses and [*34] gathering evidence. The same holds true for most torts and many other civil actions. There is no reason why the complainant should not use the same techniques - rather than shifting the burden to employers. Moreover, such a shifting of the burden is contrary to the fundamental fairness required in Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, supra, as previously discussed.

This Barnako-Cleary burden-of-proof rule means that the Secretary of Labor can henceforth cite any employer on any construction site - and that employer will be guilty of any job safety infraction on that cite - unless he can prove himself innocent. This rule greatly relieves the Secretary of any investigatory burdens and the only inconvenience it causes is to deprive employers of their constitutional right to a presumption of innocence plus untold thousands of dollars spent to defend themselves against charges that should never have been made.

Messrs. Barnako and Cleary refer to the holding in Brennan v. OSAHRC and Underhill Construction Corporation, 513 F.2d 1032 (2d Cir. 1975), but then follow it only in dicta which makes all contractors at a worksite liable for the [*35] safety of the employees of all other contractors who are working there. n25 Just a hasty reading of that decision indicates that it is not being followed in the instant case. The Circuit Court referred to the principal issue in that case as follows:

"We turn then to the important question whether a violation of the Act requires in addition to proof of the existence of a hazard, evidence of direct exposure to the hazard by the employees of the employer who is responsible for the hazard."

513 F.2d at 1036 (emphasis added after the word "employer"). The decision later states that:

"[I]t is not insignificant that it was [this employer] that created the hazards and maintained the area in which they were located. It was an employer on a construction site, where there are generally a number of employers and employees. It had control over the areas in which the hazards were located and the duty to maintain those areas. Necessarily it must be responsible for creation of a hazard."

512 F.2d at 1039 (emphasis added). The only similarity between that case and the instant one is that it involves a construction site where there were a number of employers and employee. This respondent [*36] was not responsible for the cited hazards and did not create them. The general contractors were the responsible contractors, and it was they who had control over the areas and the duty to correct the violative conditions.

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n25 This is contra to the holding in Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974).

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There are several other fatal flaws in the majority decision. In footnote 13 it is indicated that "due consideration should be given to . . . the constraints imposed upon the work condition by the trade unions." However, in Secretary v. Grossman Steel & Aluminum Corporation, supra, a subcontractor is held liable for not correcting a condition which "its employees would not have been permitted to [correct] because of craft jurisdiction rules."

Finally, in listing those things which the complainant must prove to establish a prima facie case, my colleagues fail to list one very important element. To establish any violation of the Act, the complainant must prove that the respondent had [*37] either actual or constructive notice of the alleged hazardous condition or practice. Horne Plumbing and Heating Company v. OSAHRC, supra; Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, supra. Regrettably, this is yet another example of the Barnako-Cleary requirement for employers to prove their innocence.