April 3, 1978


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.




Ray H. Darling, Jr.

Executive Secretary

DATED: APR 3, 1978
















February 12, 1976


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.




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:


            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


[1] 29 U.S.C. § 651 et seq. (hereinafter ‘the Act’).

[2] This standard provides:

§ 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. . . .