SECRETARY OF LABOR,

Complaint,

v.

LEWIS & LAMBERT METAL
CONTRACTORS, INC.,

Respondent.

DECISION

Before:    BUCKLEY, Chairman; CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970,   29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act an has no regulatory functions.  See section 10(c) of the Act, 29, U.S.C. 659(c).

Lewis & Lambert Metal Contractors, Inc., a subcontractor at a building construction site in Fort Worth, Texas, was issued citations alleging four violations of OSHA's construction standards.  The administrative law judge affirmed a citation item concerning an electrical violation because he found that Lewis & Lambert controlled the violative condition and should therefore have abated it.

We affirm this portion of the judge's decision.  The judge affirmed three other citation items because he found that, although Lewis & Lambert did not create or control the violative conditions, it failed to take reasonable alternative measures to protect its employees.  We reverse the judge's decision with respect to these citation items.

Citation 2, Item 1:  Ground-Fault Protection.

Item 1 of citation 2 alleges that Lewis & Lambert violated 29 C.F.R. 1926.400(h)(1)[[1]] by failing to use either ground-fault circuit interrupters or an assured equipment grounding conductor program to protect its employees on the site from electrical hazards.  A compliance officer from OSHA determined that ground-fault circuit interrupters had not been installed and that an assured equipment grounding conductor program had not been instituted.  The employees were using electric tools to perform their work. 

At the hearing, the employer did not contend that it had complied with the standard.   It instead argued that it neither created nor controlled the non-complying condition.  Lewis & Lambert relied on the Seventh Circuit's decision in Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975), which held that subcontractors working at a multi-employer construction site may not be cited for non-serious violations where the subcontractor did not create, control, or have responsibility for the hazardous conditions.  Id. at 1091. Lewis & Lambert argued that Walker Construction Company--the project manager and prime contractor--was responsible for safe conditions in general on the project and that Lewis & Lambert lacked the expertise to comply.   However, both the compliance officer and Lowry, Lewis & Lambert's foreman, testified that Lewis & Lambert could have unilaterally installed a portable, commercially available ground-fault circuit interrupter.  The employer did not show that such things as contractual obligations or union jurisdictional concerns relieved it of responsibility for or prevented it from literally complying with section 1926.400(h)(1).  On the basis of this evidence, the judge properly concluded that Lewis & Lambert was responsible for the working conditions and had the ability to comply with the standard.  Accordingly, item 1 of citation 2 is affirmed.

Citation 1, Item 1, and Citation 2, Item 2 and 3:  Guardrails.

Item 1 of citation 1 alleges a violation of section 29 C.F.R. 1926.500(f)(1)(vi)(b)[[2]] in that a wire rope used as a guardrail around an open elevator shaft was too slack to provide protection against falling.  The standards requires that guardrails have [a] strength to withstand at least the minimum requirement of 200 pounds top rail pressure with a minim of deflection."  The compliance officer observed two Lewis & Lambert employees fabricating and installing sheet metal ductwork near an open elevator shaft on the third floor of the new building.[[3]]  One of the workers was working in a kneeling position about three to six feet away from the edge of the open shaft.   The floor opening for the shaft was 20 feet wide by 40 feet long, and was guarded by two wire ropes strung between metal posts embedded in the concrete floor.  The posts were about six to eight feet apart.  The top wire rope--which was equipped with a turnbuckle for tightening--sagged about eight inches between posts.  When the compliance officer leaned on the top wire rope, it sagged an additional 12 to 16 inches.

Items 2 and 3 of citation 2 alleges respectively that Lewis & Lambert violated 29 C.F.R. 1926.500(d)(1) and (e)(1)(ii).[[4]]  Section 1926.500(d)(1) requires that "[e]very open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing . . . on all open sides . . . ."   Section 1926.500(e)(1)(ii) requires that employers equip "every flight of stairs having four or more risers . . . [with] at least one railing on the open side . . . ."  The compliance officer observed that the stairway landings at four levels of the building were open on one side.  the landings were protected on two sides by I-beams and on a third side by the stairs themselves, but were open on the fourth side.   Conditions were identical on all four levels.  The potential fall distance was seven feet to the next lower level.  The compliance officer also observed that the stair flights did not have railings on their open sides.

Lewis & Lambert contended that it did not create, control or have responsibility for the violative conditions.  Lowry, Lewis & Lambert's foreman at the worksite, testified that the wipe rope guardrail as originally installed by ironworkers employed by another contractor.  Lowry stated that sheet metal workers are not permitted to work on wire rope guardrails, and that if they had done so it would likely have caused a jurisdictional dispute.  Snow, a vice-president of Lewis & Lambert, testified that the company employed only sheet metal workers on the project.  Snow stated that under prevailing craft union jurisdictional agreements in the region, sheet metal workers cannot erect or maintain wire rope guardrail, a jurisdictional dispute and possible a job shutdown would occur.  According to the project manual for the job, Walker was responsible for worker safety, including the responsibility for placing barriers and guardrails around floor openings.  In any event, Snow stated, Lewis & Lambert's employees did not have the tools or expertise to perform guardrail work around either the elevator shaft or stairway openings.  Snow conceded that it would not have taken much physical effort to tighten the turnbuckle attached to the wire rope guardrail around the elevator shaft. 

Forrester, the compliance officer, testified that it would only have taken five minutes to tighten the turnbuckle on the guardrail.  Forrester agreed that a jurisdictional dispute would likely result if an iron worker were to install or maintain a wooden guardrail.  The compliance officer stated that during and following the inspection, workers employed by Walker corrected the non-complying elevator shaft and stairway guardrail conditions by installing 2x4 wooden guardrails.

Lewis & Lambert's foreman, Lowry, complained two or three times to the worksite representatives of Baldwin Construction Company and Walker about the lack of adequate elevator shaft and stairway guardrails.  Walker's worksite representative replied that he lacked jurisdiction to correct the safety problems.  Lowry earlier had Baldwin's representative write a letter to Walker complaining about safety problems at the site.  The letter, dated June 5, 1980 (about eight weeks before the OSHA inspection), mentioned a lack of stairways and referred to "a number of other safety hazards that I haven't brought to your attention but I know you are aware of . . . .

The judge found that the inadequate railing surrounding the elevator shaft and the lack of railings on the stairway violated the cited standards and that the two Lewis & Lambert workers were exposed to fall hazards.  The judge found that Lewis & Lambert had established that it neither created nor controlled these non-complying conditions.  The judge concluded that Walker was contractually responsible for general job safety--including installing and maintaining guardrails around the elevator shaft and stairway--and that craft union jurisdictional agreements prevented Lewis & Lambert's sheet metal workers from erecting or maintaining wire rope or wooden guardrails without risking a jurisdictional dispute or job shutdown.  The judge also found that Lewis & Lambert was bound by the project manual for the job and by its contract with Baldwin, neither of which imposed the responsibility for erecting guardrails.

However, the judge held that Lewis & Lambert failed to take reasonable alternative measures to protect its employees, citing the Commission's decision in Anning-Johnson Co., 76 OSAHRC 54/A2, 4BNA OSHC 1198, 1975-76 CCH OSHD 20,690 (No. 3694 & 4409, 1976).  The judge found that the oral complaints to Walker and Baldwin by Lewis & Lambert's foreman--coupled with the June 6, 1980, letter--were not a reasonable alternative measure.  In the judge's view, it should have been evident to Lowry that his complaints to Walker's on-site representative were not going to be acted upon.   The judge therefore concluded that Lowry's complaints lacked sufficient forcefulness, and that Lowry should have contacted a higher authority within Walker or had an appropriate officer of Lewis & Lambert do so.  In the alternative, the judge held that Lewis & Lambert could have physically protected its workers by instructing them to wear safety belts tied off to the wire rope guardrail or by providing   ladders for them  to gain access to their work stations.

Lewis & Lambert disputes the judge's finding that it failed to take reasonable measures to protect its employees.  The employer argues that its efforts were realistic and reasonable, and that "[to] require more specific measures . . . would be beyond the policy of the Act . . . ."

The Secretary takes issue with the judge's finding that Lewis & Lambert did not control the elevator shaft guardrail violation.  The Secretary argues that it would have required no particular effort or expertise to tighten the guardrail turnbuckle.   The Secretary also contends that the employer was bound under the guidelines of the Sheet Metal Air Conditioning National Association to replace any guardrails it might have to remove in order to perform its contract.

The Secretary also urges affirmance of the judge's conclusion that the employer failed to take reasonable alternative measures.  The Secretary argues that the letter to Walker was written 55 days before the inspection, "an unreasonably long time period during which . . . employees were exposed to hazards."  The Secretary also notes that the letter fails to mention any of the cited hazards and does not indicate that Lewis & Lambert is the complainant.  The Secretary contends that any conversations with Walker that took place before the letter was written should not be considered because some of the cited conditions did not then exist.

We agree with the judge that Lewis & Lambert did not create or control the elevator shaft or stairway guardrail violations, largely for the reasons he assigned.  The Commission has recognized that an employer may be prevented from abating a hazardous working condition due to union jurisdictional rules.  See  McLean-Behm Steel Erectors, Inc.,  78 OSAHRC 54/A2, 6 BNA OSHC 1712, 1715, 1978 CCH OSHD 22,812, p. 27571 (No. 76-2390, 1978).  The record establishes here that Lewis & Lambert employed only sheet metal workers at the worksite, and that craft jurisdictional agreements prevented those workers from working on or building guardrails.  Despite the apparent ease with which the elevator shaft guardrail could have been tightened, Lewis & Lambert's workers could not have abated the hazard without risking a jurisdictional dispute and a job shutdown.  Furthermore, such workers did not have the expertise or materials  to fabricate guardrails for the stairs.  Under our case law these facts establish that Lewis & Lambert did not create or control the cited guardrail hazards.

However, we disagree with the judge's conclusion that Lewis & Lambert failed to take reasonable alternative measures.  The alternative efforts a subcontractor is required to make were first discussed in Grossman Steel & Aluminum, Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1189, 1975-76 CCH OSHD 20,691, p. 24,791 (No. 12775, 1976)(footnote omitted):

[An employer] can . . . 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 where the hazard exists if this alternative is practical, or in some instances provide an alternative means of protection against the hazard.  We therefore expect every employer to make a reasonable effort to detect violations of standards not created by it but to which its employees have access and, when it detects such violations, to exert reasonable efforts to have them abated or take such other steps as the circumstances may dictate to protect its employees.

In a later decision, the Commission stated that the steps that must be taken depend upon what is realistic under the circumstances.  Mayfair Construction Co., 77 OSAHRC 178/A14, 5 BNA OSHC 1877, 1977-78 CCH OSHD 22,214 (No. 2171, 1977).  In determining whether an employer has made reasonable efforts to abate a condition, the Commission will examine the employer's overall conduct rather than any single act.  See Weisblatt Electric Co., 82 OSAHRC 28/B3, 10 BNA OSHC 1667, 1982 CCH OSHD 26,058 (No.79-2537, 1982).  At a minimum the subcontractor should request the general contractor to provide the necessary protection.

We conclude that Lewis & Lambert's efforts to have the guardrail conditions corrected were reasonable and satisfy our Anning-Johnson test.  Lewis & Lambert several times attempted to have the general contractors correct the non-complying guardrail conditions.  Its foreman had Baldwin's site representative write a letter to the Walker representative complaining about worksite hazards.  The foreman personally raised these issues with Walker's representative several times before ad after the letter as written.[[5]]  As we stated in Dutchess Mechanical Corp., 78 OSAHRC 59/B14, 6 BNA OSHC 1795, 1796, 1978 CCH OSHD 22,876, p. 27,679 (No. 16256, 1978), "[the employer's attempts to have the general contractors remedy hazardous conditions on the worksite through both oral and written communications indicate a concern for employee safety and health that is consonant with the goals of the Act."  In judging the reasonableness of Lewis & Lambert's conduct, it bears emphasis that complaints to a general contractor about conditions such as these can nearly always be expected to be effective.  General contractors have, under Commission precedent, been held responsible for such conditions by reason of their general supervisory authority and central position on a multiple-employer construction site.  See, e.g., Olson Construction Co., 77 OSAHRC 176/A2, 5 BNA OSHC 1857, 1859-60, 1977-78 CCH OSHD 22,197, p. 26,710 (No. 14683, 1977).  We therefore reverse the judge's ruling that Lewis & Lambert failed to take reasonable alternative measures to protect its employees. See Novak & Co., 84 OSAHRC _____, 11 BNA OSHC 1763, 1766, 1984 CCH OSHD 26,766, p. 34,235 (No. 80-7335, 1984).[[6]]

We also reject the judge's alternative finding that the Lewis & Lambert employees could have ascended ladders to their work stations and tied off with safety belts once they reached their work stations.  First, because the stairways here were unguarded only on the one side adjacent to the interior of the building and a fall would be to the next lower level, it is reasonable to conclude that climbing the unguarded stairway was safer than ascending a ladder, especially when tools and materials were to be transported to work stations.  For this reason, the use of ladders would not constitute a reasonable alternative measure.  Second, the use of safety belts and lanyards was not mentioned a the hearing by either party or the judge as an alternative means of protection.  We therefore could not adopt the judge's finding that such measures were "reasonable."  In any event, the Anning-Johnson defense does not require an employer to establish that it explored every conceivable measure in order to protect its workers from non-complying conditions that it did not create or control.   It requires only that the employer "make a reasonable effort to detect violations . . . [and] exert reasonable efforts to have abated . . . ."  Grossman Steel & Aluminum, 4 BNA OSHC at 1189, 1975-76 CCH OSHD at p. 24,791.  The record reflects that Lewis & Lambert has done so here.

Accordingly, the judge's decision is affirmed in part and reversed in part.  Item 1 of citation 1 and items 2 and 3 of citation 2 are vacated.  Item 1 of citation 2 is affirmed, without penalty.

FOR THE COMMISSION

RAY H. DARLING, JR..                                                                                                                                                                                                             EXECUTIVE SECRETARY

DATED:  OCTOBER 2, 1984


FOOTNOTES:

[[1]] The standard provides in part: 1926.400 General requirements. (h) Ground-fault protection--(1) General. . . . [T]he employer shall use either ground-fault circuit interrupters as specified in paragraph (h)(2) of this section or an assured equipment grounding conductor program as specified in paragraph (h)(3) of this section, to protect employees on construction sites. . . .

[[2]] The standard provides:  1926.500 Guardrails, handrails and covers. (f) Standard specifications. (1) A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor, platform, runway, or ramp level.   The top rail shall be smooth-surfaced throughout the length of the railing.   The intermediate rail shall be halfway between the top rail and the floor, platform, runway, or ramp.  The ends of the rails shall not overhang the terminal posts except where such overhang does not constitute a projection hazard.  Minimum requirements for standard railings under various types of construction are specified in the following paragraphs:

(vi) Other types, sizes, and arrangements of railing construction are acceptable, provided they meet the following conditions:

(b) A strength to withstand at least the minimum requirement of 200 pounds top rail pressure with a minimum of deflection[.]

[[3]] Lewis & Lambert had contracted with Baldwin Construction Company to fabricate and install portions of the new building's air handling system.  Lewis & Lambert's vice-president "presumed" that Baldwin was itself a subcontractor of the prime contractor and project manager Walker Construction Company.

[[4]] The standards provide:  1926.500 Guardrails, handrails, and covers. (d) Guarding of open-sided floors, platforms, and runways.  (1) Every open-sided 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)(1)(i) of this section, on all open sides, except where there 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 e 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:

(ii) On stairways less than 44 inches wide having one side open, at least one stair railing on the open side. . . .          

[[5]]We disagree with the judge's conclusion that Lowry should have complained to a more senior representative of Walker.  Nothing in Gotham Electric Co., 78 OSAHRC 1/A14, 6 BNA OSHC 1265, 1266, 1977-78 CCH OSHD 22,479, P. 27,095 (No. 16155, 1977)--on which the judge relied for the proposition that requests made to the general contractor must be definite and forceful--mandates a different result.  In that case, the record was not clear as to the nature and extent of requests made to the general contractor to correct certain hazards.  6 BNA OSHC at 1266, 1977-78 CCH OSHD at p. 27,095.  Here , by contrast, the record demonstrates a continued effort by Lewis & Lambert to have the safety conditions at the worksite improved.

[[6]]Because Chairman Buckley concludes that Lewis & Lambert established that it took reasonable alternative measures as required under existing Commission precedent, the Chairman does not decide in this case whether Commission precedent correctly holds that an employer that did not create, control, or otherwise have responsibility for a hazardous condition must further show that it took reasonable alternative measures.  Following the Seventh Circuit decision in Anning-Johnson Co. v. OSHRC, the Commission reconsidered its own case law on the subject.  In Anning-Johnson, supra, and Grossman Steel and Aluminum, supra, the Commission accepted the Seventh Circuit rationale that a non-creating and non-controlling subcontractor is nor liable for noncomplying working conditions.  However, the Commission decided that the employer who did not have actual or constructive notice of the hazardousness of the conditions.   See Anning-Johnson Co., 4 BNA OSHC at 1198, 1975-76 CCH OSHD at pp. 24,783-84.  The Commission apparently concluded that the duty to take realistic alternative measures followed from the duty stated in section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), to comply with standards.  However, because section 5(a)(2) of the Act mandates employer compliance with specific standards, it is not clear that this provision can be the source of an employer's obligation to take "alternative measures" beyond or different from what is required by specific standards.