ANASTASI BROTHERS CORPORATION

OSHRC Docket No. 76-853

Occupational Safety and Health Review Commission

July 7, 1977

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Before: BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Herbert L. Olivieri, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Jerome C. Ditore, which found respondent in nonserious violation of the Act for failure to comply with the requirements of 29 C.F.R. 1926.500(d)(1), is before this Commission for review pursuant to 29 U.S.C. 661(i).

Following an inspection of a construction worksite on which respondent was the masonry subcontractor, respondent was issued a citation for noncompliance with 29 C.F.R. 1926.500(d)(1) because of its failure to provide perimeter guarding for an open-sided floor of the building under construction. Respondent contested the charge, contending that "since Anastasi Brothers Corporation neither created nor was responsible for correcting the safety violation, the citation should not be issued against Anastasi nor a fine imposed."

The evidence submitted at the hearing showed that the general contractor, rather than the respondent, was responsible for the failure to provide perimeter guarding. It also established that respondent's [*2] employees had access to the hazard caused thereby. Respondent did not submit any evidence showing that it had taken any action to protect its employees.

Respondent's petition for review repeats the contention made to the Judge that the citation should be vacated because respondent was not responsible for the noncomplying condition. Respondent relies on the decision in Anning-Johnson Company v. OSHRC, 516 F.2d 1081 (7th Cir. 1975), as support for that contention. In addition, respondent protests what it considers "retroactive" application of the Commission decisions in Grossman Steel & Aluminum Corp. and Anning-Johnson Co., infra.

In affirming the citation, Judge Ditore properly applied the holdings of the Commission decisions in Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976), and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976). In those decisions, we declined to follow completely the decision of the Seventh Circuit in Anning-Johnson Company v. OSHRC, supra, which held that even though an employer's employees are exposed [*3] to violative conditions, the employer cannot be held in violation if it did not create, and was not otherwise responsible for, the violative conditions. We concluded that the Court had overestimated the distinction between "serious" and "nonserious" violations, and had underestimated the ability of such an employer to protect its employees. We held that the noncreating, noncontrolling employer is nevertheless under a duty to do what is "realistic" in the circumstances to protect its employees. We held that, if an employer knew, or with the exercise of reasonable diligence should have known that his employees had access to a hazardous condition, he can avoid liability where literal compliance with a standard is unrealistic only by the application of reasonable alternative measures for the protection of his employees. Judge Ditore's affirmance of the citation in this case is consistent with that precedent since respondent knew of the hazardousness of the unguarded floor and failed to submit any evidence that it had protected its employees in any way by taking alternative protective measures.

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n1 Also see Data Electric Co., 5 BNA OSHC 1077, 1977-78 CCH OSHD para. 21,593 (No. 13122, 1977).

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Apparently, respondent makes its second contention under the belief that the application of prior Commission case law would benefit it in the outcome of this case. In actuality, under prior Commission case law, respondent would also be found in violation of the Act as charged.' The respondent's reliance on the decision of the Court of Appeals in Anning-Johnson Company v. OSHRC, supra, is misplaced. The holding therein was not Commission law. Instead, under Commission precedent before our Anning-Johnson and Grossman decisions, an employer, who was not responsible for violative conditions, was held in violation of the Act, without exception, whenever its employees were exposed to those conditions. n2 Thus our decisions in Anning-Johnson and Grossman, rather than enlarging liability for employers, such as respondent, actually created an affirmative defense not available prior to the issuance of those decisions. Therefore, since respondent has not been prejudiced by retroactive application of these cases, we reject its contention.

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n2 See Alcap Electrical Corp., 75 OSAHRC 60/A3, 3 BNA OSHC 1203, 1974-75 CCH OSHD para. 19,640 (No. 1722, 1975); Robert E. Lee Plumbers, Inc., 75 OSAHRC 56/C2, 3 BNA OSHC 1150, 1974-75 CCH OSHD para. 19,594 (No. 2431, 1975), and cases cited therein.

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Accordingly, the Judge's decision is affirmed.