UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
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SECRETARY
OF LABOR, |
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Complainant, |
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|
v. |
OSHRC
DOCKET NO. 12892 |
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4G PLUMBING & HEATING, INC., |
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Respondent. |
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April 3, 1978
DECISION
Before CLEARY, Chairman; and BARNAKO, Commissioner.
CLEARY, Chairman:
A
decision of Administrative Law Judge John J. Morris is before the Commission
for review pursuant to section 12(j) of the Occupational Safety and Health Act
of 1970.[1] Judge Morris vacated a
citation alleging that respondent violated section 5(a)(2) of the Act by
failing to comply with the standard at 29 CFR § 1926.401(c).[2] The Secretary of Labor
petitioned the Commission for review of this decision and an order granting his
petition was issued. We affirm the Judge’s decision.
The
basic facts are not in dispute. Respondent contracted with the State of Montana
to install the plumbing and heating equipment for a construction project at a
state prison farm. The State had awarded contracts to three contractors:
respondent; an electrical contractor; and a ‘general contractor’. Each of these
contractors was a prime contractor. None exercised formal supervisory authority
over the others. The testimony established that, in ‘a spirit of cooperation,’
the contractors informally resolved any problems that might be encountered.
Temporary
electrical receptacles had been installed at the site by the electrical
contractor. During an OSHA inspection, the compliance officer tested the
receptacles with a ‘wood head’ tester and discovered that the outlet to which
respondent’s electric band saw was connected had an open ground. This condition
formed the basis of the citation issued to respondent alleging a failure to
comply with § 1926.401(c).
At
the hearing, the parties stipulated that the cited noncomplying condition
existed. The parties disagreed, however, on the issue of whether respondent
should be held responsible for this noncompliance. The Secretary argued that
since respondent could have discovered the violation through the use of a
simple testing device, respondent is responsible for the exposure of its own employees
to the hazard. The Judge rejected the Secretary’s argument and vacated the
citation. The Secretary repeats the argument on review. For the reasons that
follow, we reject the Secretary’s argument and hold that vacation of the
citation was proper.
The
approach to be followed, in determining whether an employer on a multi-employer
construction worksite can be held responsible for a noncomplying condition, is
discussed at length in cases decided subsequent to the issuance of the Judge’s
decision in the present case. E.g., Grossman Steel & Aluminum Corp.,
76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975–76 CCH OAHD para. 20,691 (No. 12775,
1976); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975–76 CCH OSHD
para. 20,690 (No. 3694, 1976); Data Electric Co., Inc., 77 OSAHRC
28/C14, 5 BNA OSHC 1077, 1977–78 CCH OSHD para. 21,593 (No. 13122, 1977). For
the reasons stated in those decisions, a contractor who did not create or
control the noncomplying condition may defend against the citation on the
ground that he neither knew, nor with the exercise of reasonable diligence
could have known, that the condition was hazardous.
Applying
these principles to the present case, respondent cannot be held in violation of
the Act for the failure to ground the electrical outlet. Respondent did not
create the hazard; the receptacles were installed by the electrical contractor.
Nor did respondent control the hazard such that it had the means to rectify the
noncomplying condition in the manner contemplated by the standard; respondent
contracted to install plumbing and heating equipment only. Respondent did not
know of the existence of the open ground; it was a non-obvious hazard
detectable only through the use of a testing device. Therefore, respondent can
be found in violation only if, in the exercise of reasonable diligence, it was
required to test the electrical receptacles for proper grounding before using
them. We hold that reasonable diligence did not require respondent, the
plumbing and heating contractor on a construction worksite, to do so. See A.
A. Will Sand & Gravel Corp., 76 OSAHRC 81/G2, 4 BNA OSHC 1442, 1976–77
CCH OSHD para. 20,864 (No. 5139, 1976). See also Knutson Constr. Co., 76
OSAHRC 131/F3, 4 BNA OSHC 1759, 1976–77 CCH OSHD para. 21,185 (No. 765, 1976),
aff’d., 566 F.2d 596 (8th Cir., 1977).
Accordingly,
the Judge’s decision is affirmed.
FOR THE COMMISSION:
Ray H. Darling, Jr.
Executive Secretary
DATED: APR 3, 1978
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 12892 |
|
4G PLUMBING & HEATING, INC., |
|
|
Respondent. |
|
February 12, 1976
APPEARANCES:
Thomas E. Korson, Attorney, Office of the
Associate Regional Solicitor, U. S. Department of Labor
Room 15019 Federal Office Building, 1961
Stout Street, Denver, Colorado
for the Complainant,
Norman Carey, (Pro Se), 4G Plumbing &
Heating, Inc.
Box 3538, Missoula, Montana
for the Respondent.
DECISION AND ORDER
Morris, Judge:
citation alleges a violation of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter
‘Act’). Complainant asserts a violation occurred on March 26, 1975 and was
detected when complainant inspected a construction site near Deer Lodge, Montana.
The citation was issued on April 3, 1975. A notice contesting the citation and
penalty was dated April 7, 1975.
The
citation alleges a nonserious violation of 29 CFR 1926.401(c). It reads:
The temporary power receptacles located in
the south end of Rothe Hall which supplied power to the metal band saw did not
have a permanent and continuous path to ground.
Proposed civil penalty: $25.
The
cited standard reads:
§ 1926.401 Grounding and bonding.
(c) Effective grounding. The path from
circuits, equipment, structures, and conduit or enclosures to ground shall be
permanent and continuous; have ample carrying capacity to conduct safely the
currents liable to be imposed on it; and have impedance sufficiently low to
limit the potential above ground and to result in the operation of the
overcurrent devices in the circuit.
The
evidence: Respondent contracted with the State of Montana to install plumbing,
heating, and related piping on state owned property (Tr. 5–7, 33). In Montana
state agencies award contracts to three bidders, all designated prime
contractors. They consist of the general, the mechanical, and the electrical
contractor (Tr. 6–7, 18–19). A cooperative effort usually prevails as no prime
contractor has authority over the other (Tr. 7–9, 24). On this project the
electrical contractor installed temporary power receptacles (Tr. 9, 12–13).
Respondent’s employees and workers of other employers used one of the
receptacles at the south end of Roche Hall. The receptacles are similar to
those on other construction sites (Tr. 9–10, 14–15).
Using
a woodhead tester a compliance officer detected an open ground in the power
receptacle outlet (Tr. 19, 21, 23–24; compl’s ex. 1). An open ground can only
be determined by instrumentation; a yellow light shines on the tester (Tr. 15,
21). Respondent’s band saw and extension cord were properly grounded but
respondent had not checked the outlet (Tr. 10, 29). If any of respondent’s
employees detect an ungrounded outlet its foreman notifies the electrical
foreman who remedies the condition (Tr. 11–12). A ground might be effective one
day and not the next (Tr. 30).
The
parties stipulated a violation existed at the worksite, but they disagree on
the issue of responsibility.
Complainant
argues respondent could have assumed the initiative and responsibility to test
the outlet. Complainant further argues each employer is responsible for the
safety of his workers, therefore, the decision in Anning—Johnson Company, et
al v. Occupational Safety and Health Review Commission et al, 516 F.2d 1081
(7th Circ., 1975) incorrectly decided the law. In the alternative: if Anning—Johnson
correctly decided the law then the facts in the instant case are
distinguishable because there was no prime contractor at the worksite as that
term is generally understood.
Facts
analogous to the instant case are set forth in Secretary v. The Mountain
States Telephone and Telegraph Company, Docket No. 355, 2 OSAHRC 168
(1973). Therein the Commission rejected the trial judge’s ruling which rendered
an employer absolutely responsible for the safe condition of his tools. The
Commission stated, at 171:
‘. . . Where the facts show that the
employer knew, or should have known, of the unsafe condition of the tool, or
failed to act where there were circumstances which would indicate that he
should have the tool checked to be sure it was safe, then the employer has
violated this standard.
As in
the Commission decision, this case fails to develop facts establishing a
violation. If the Secretary of Labor desires to protect employees in facts
similar to the instant case, he should promulgate a standard requiring that
every employer test all power outlets used by his employees on a jobsite.
Inasmuch
as complainant failed to establish any liability it is not necessary to
consider his other contentions.
Respondent
employer admits it engages in a business affecting commerce. Accordingly, based
on the uncontroverted record the undersigned enters the following:
ORDER
1.
Citation 8 is vacated.
2.
The proposed civil penalty of $25 is vacated.
So ordered in the City and County of Denver, Colorado.
John J. Morris
Judge, OSAHRC