SECRETARY OF LABOR,

Complainant,

v.

TRI-CITY ELECTRICAL
CONTRACTORS, INC.,

Respondent.

OSHRC Docket No. 90-0248

ORDER

This matter is before the Commission on a Direction for Review entered by Commissioner Velma Montoya on October 5, 1990. The parties have filed a Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the representations appearing in the Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission.  The terms of the Stipulation and Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into this order.  This is the final order of the Commission in this case.  See 29 U.S.C. 660(a) and (b).

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: February 14, 1991


ELIZABETH DOLE, SECRETARY OF LABOR,

Complainant,

v.

TRI-CITY ELECTRICAL CONTRACTORS,

INCORPORATED,

Respondent.

OSHRC Docket No. 90-0248

STIPULATION AND SETTLEMENT AGREEMENT

I

The parties have reached agreement on a full and complete settlement and disposition of the issues in this proceeding which are currently pending before the Commission.

II

It is hereby stipulated and agreed between the Complainant, Secretary of Labor, and the Respondent, Tri-City Electrical Contractors, Inc., that:

1.  Respondent represents that the alleged violation for which it was cited has been abated and shall remain abated.
2.  The Secretary hereby agrees to withdraw Citation number one, item one, alleging a violation of 29 C.F.R. 450(a)(10), along with the proposed penalty of $300.
3.  The Secretary hereby agrees to withdraw Citation number two, item one alleging a violation of 29 C.F.R. 500 (d) (1), along with the proposed penalty of $1,600.00.
4.  The Secretary hereby amends the proposed penalty of citation number one, item two, alleging a violation of 29 C.F.R. 450 (b) (12), from $300 to $100.
5.  Respondent hereby withdraws its notice of contest to citation number one, item two and to the notification of proposed penalty as amended above.
6.  Respondent agrees to submit to the OSHA Area Office $100 in full and complete payment of the penalty within 30 days of the date of this Agreement.
7.  Respondent certifies that a copy of this Stipulation and Settlement Agreement was posted at the workplace on the 3rd day of October, 1990, in accordance with Rules 7 and 100 of the Commission's Rules of Procedures, and remained posted for a period of ten days.
8.  No authorized employee representative elected party status in this case.
9.  None of the foregoing agreements, statements, stipulations, or actions taken by respondent shall be deemed an admission by respondent of the allegations contained in the citations or the complaint herein.  The agreements, statements, stipulations, and actions herein are made solely for the purpose of settling this matter economically and amicably and they shall not be used for any other purpose, except for subsequent proceedings and matters brought by the Secretary of Labor directly under the provisions of the Occupational Safety and Health Act of 1970.
10.  This Stipulation and Settlement Agreement is made to avoid further protracted litigation.

Respectfully submitted,

ROBERT P. DAVIS
Solicitor of Labor

CYNTHIA L. ATTWOOD

Associate Solicitor for
Occupational Safety and Health

DONALD G. SHALHOUB
Deputy Associate Solicitor for
Occupational Safety and Health

DANIEL J. MICK
Counsel for Regional
Trial Litigation

JIM POWERS
Safety Director for
Tri-City Electrical

Contractors, Inc.

JACK POWASNIK
Attorney for the
Secretary of Labor

SECRETARY OF LABOR,

Complainant,

v.

TRI-CITY ELECTRICAL CONTRACTORS, INC., Respondent.

OSHRC Docket No. 90-248

APPEARANCES:

Rafael Batine, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant.

James Powers, Safety Director, Tri-City Electrical Contractors, Inc., Altamonte Springs, Florida, on behalf of respondent.

DECISION AND ORDER

SALYERS, Judge:  The Secretary of Labor brings this action under the provisions of section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.) and seeks affirmation of citations issued to the respondent following an inspection of a construction project designated as the Cypress Ridge and Cypress Run Apartments located on Apopka Vineland Road in Orlando, Florida.  At the time of the inspection, respondent was engaged as the electrical subcontractor at this multi-employer work site which was under the direction and control of the general contractor, Trammell-Crow, Inc. (Tr. 18).

The Secretary's inspection was conducted by Compliance Officer Kristas H. Nicou in October 1989.  Nine apartment complexes were under construction at the site, some of which were framed and decked to the third-story level (Tr. 20).  Approximately 150 craft employees were engaged at the site, including about 15 employees of the respondent (Tr. 21).  During the course of his inspection, Nicou met with respondent's project manager, David Gardner, who accompanied Nicou on his walkaround (id.).  Nicou observed and photographed three conditions which he deemed to be in violation of 29 C.F.R. 1926.450 (portable ladders) and 29 C.F.R. 1926.500 (unguarded floors).  At buildings one and six, Nicou observed respondent's employees using "job-made ladders" which were of substandard construction and were not tied, blocked or secured to prevent displacement (Exs. C-1, C-2, C-3, C-4; Tr. 23-24).  Throughout the work site, Nicou observed respondent's employees using open-sided floors around the perimeter of the buildings.   These floors were not protected by standard guardrails, exposing employees to falls of 16 feet (Exs. C-5, C-6, C-7, C-8; Tr. 29-30).

Based on Nicou's inspection, respondent was issued the following citations:

Serious Citation 1
1
29 CFR 1926.450 (a) (10):  Portable ladders in use were not tied, blocked, or otherwise secured to prevent their being displaced:

(a) Job-made ladders used to give access to the various elevations in buildings 1 and 6, on or about 10/19/89.

2
29 CFR 1926.450 (b) (12):  Cleats on job-made ladders were not inset into the edges of the side rails one-half inch, or filler blocks were not used on the rails between the cleats.  The cleats were not secured to each rail with three 10d common wire nails or fasteners of equivalent strength.  Cleats on job-made ladders were not uniformly spaced, 12 inches top-to-top:

(a) Job-made ladders used to give access to the various elevations in building 1 and 6, on or about 10/19/89.

Repeat Citation 2

1
29 CFR 1926.500 (d)(1):  Open-sided floors or platforms, 6 feet or more above adjacent floor or ground level, were not guarded by a standard railing or the equivalent on all open sides:

(a) South side of building 1, first and second floor, a breezeway 68 inches wide giving access to the various units, did not have guardrails at the open side, exposing employees to fall hazards, on or about 10/19/89.

(b) At the perimeter of building 6, employees were exposed to fall hazards up to 16 feet high, on or about 10/20/89.

(c) Building 5, second floor, a breezeway 68 inches wide that gave access to the various units did not have guardrails installed, exposing employees to fall hazards up to 16 feet, on or about 10/19/89.

THE TRI CITY ELECTRICAL CONTRACTORS INC. WAS PREVIOUSLY CITED FOR A VIOLATION OF THIS OCCUPATIONAL SAFETY AND HEALTH STANDARD OR ITS EQUIVALENT STANDARD 1926.500 (d) (1) WHICH WAS CONTAINED IN OSHA INSPECTION NUMBER 101157824, CITATION NUMBER 01, ITEM NUMBER 1b, ISSUED 9/18/87.

In its answer and at the hearing, respondent admitted the factual allegations contained in paragraphs seven, eight and nine of the Secretary's complaint.  Respondent also admitted its employees were exposed to the hazards alleged in the Secretary's complaint and that it had knowledge of the existence of these hazards (Exs. J-11, para. 7c, d, e; 8c, d, e; and 9c, d, e; Tr. 8, 9).   Accordingly, the Secretary has established a prima facie case on the basis of respondent's admissions.  Respondent argues, however, that the hazards occasioned by these ladders and unguarded open-sided floors were created and controlled by the general contractor; that respondent took reasonable steps to protect its employees from these hazards and that it is entitled to assert a defense under the so-called Anning-Johnson/Grossman rule.

In Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD 20,690 (Nos. 3694 & 4409, 1976), the Commission held that a subcontractor on a multi-employer construction site could defend against a charge or exposure or its employees to hazards which it did not create or control by showing that such employees were protected by realistic measures undertaken by the subcontractor as an alternative to literal compliance with the standard.  In a companion case, Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD 20,691 (No. 12775, 1975), the Commission set the burden of proof for establishing this affirmative defense on the shoulders of the contending subcontractor.  The Commission also set forth an explanation of the steps a subcontractor must take to demonstrate it has taken realistic alternative measures to protect employees:

[A] subcontractor cannot be permitted to close its eyes to hazards to which its employees are exposed, or to ignore hazards of which it has actual knowledge.  As noted above, each employer has primary responsibility for the safety of its own employees.  Simply because a 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 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 the absence of such actions, we will still hold each employer responsible for all violative conditions to which its employees have access.  (4 BNA OSHC at 1189).

The record in this case is undisputed that respondent's employees were exposed to the hazards alleged in the Secretary's citations and that respondent had knowledge of these conditions.  It is also clear that respondent did not create or control these conditions. The issue for resolution is whether respondent has carried its burden of showing that it took reasonable steps to protect its employees under the circumstances disclosed in the record.

Mr. James Powers, respondent's current safety director who represented respondent at the hearing, [[1]] outlined respondent's position in statements made to the court during the course of the hearing.  Respondent's principal contention is that it made frequent but unsuccessful requests to the general contractor concerning the need for appropriate guardrails and ladders, but its requests were ignored.  In view of this circumstance, respondent urges that its only recourse would be to refuse to work in these hazardous areas, thereby subjecting respondent to termination of its contract and the economic perils which would flow from such an act (Tr. 10).  In addition, respondent contends it took realistic measures to protect employees through the utilization of a "strong safety program" which included instructions to employees "on how to work around these hazards" at the work site (Tr. 9-10).

In support of its contentions, respondent called five witnesses and offered into the record eight documentary exhibits.  This evidence will now be considered to determine if respondent has carried its burden of proof.

Rance Borderick has been employed by respondent for 18 years and is the manager of its residential department (Tr. 60).  On July 24, 1989, after learning from David Gardner that stairways at the work site were not guarded by standard railings, he sent a memorandum to Bill Houghie, a regional supervisor for Trammell-Crow, advising as follows (Ex. C-12):

Subject:  Cypress Ridge and Cypress Run Apts.

Attached is a copy of an OSHA fine Tri-City recently received.  This occurred on the Sea Harbour Apartment job off of Kirkmon Road.  Any stairway without proper railings is considered a serious violation.   Both of the above projects need attention regarding this matter.  Your help will be appreciated.

It is important to note that this memorandum refers only to a failure to guard stairways, an item not cited by the Secretary.  It does not mention defective ladders or unguarded floors, the subjects of the Secretary's citations.  Borderick testified he wrote the memorandum after being advised by respondent's project manager, David Gardner, of missing stairway railings (Tr. 65).   He testified he was not advised of the other hazardous conditions existing on the jobsite nor did he communicate with the general contractor concerning defective ladders or unguarded floors during the period from July to October 1989 (Tr. 65, 66).  His testimony, therefore, was largely irrelevant.  He did, however, relate that respondent receives between "eight hundred thousand to a million and a half dollars" a year from its work for Trammell Crow (Tr. 60).  After sending the memorandum to the general contractor, he received an angry telephone call from one of its regional managers berating him for this action and indicating he had "jeopardized" respondent's relationship with Trammell-Crow (Tr. 61).

Robert Moslar has been an employee of respondent for 28 years and is currently its superintendent (Tr. 67).  His only contribution to the record was to verify that respondent has a safety program and conducts two safety meetings each month with its employees (Tr. 68).  He was unable to confirm that employees assigned to work around hazardous conditions (missing guardrails) at the work site in question were given any direction concerning the avoidance of these hazards or that alternative means to protect against injury were employed by respondent (Tr. 70).   In fact, he had no responsibilities at this jobsite and had not visited the site before the Secretary's inspection (Tr. 71).

Greg Lorenzo is an electricians' helper and, at the time of the hearing (May 17, 1990), had been employed by respondent for two and one-half months (Tr. 72).  His testimony, therefore, did not relate to the time period at issue in this proceeding.  Lorenzo offered little to the record except to confirm that he was given some orientation on safety matters on his first day of employment and was furnished with respondent's safety handbook (Ex. R-1; Tr. 74, 75).   The entire orientation procedure took about an hour and a half (Tr. 76).

Edward G. Bruhns was respondent's job superintendent at the work site during the pertinent period.  He worked directly under David Gardner and Rance Borderick and was responsible for jobsite safety (Tr. 79-80).  Bruhns was aware of the defective ladders and unguarded floors and reported these conditions to his supervisors and also to Bill Houghie and Doug Mackie, the general contractor's representatives at the site (Tr. 82, 83).  It was his testimony that he personally made requests "many times" to the general contractor to abate the conditions (Tr. 93-94) and that Dave Gardner also made requests in this regard to Bill Houghie (Tr. 84, 89).  He advised the general contractor that he did not want his man to go up in the area where these hazards existed, but "unfortunately, the general contractor's attitude was, you will be up there tomorrow, or I'll get somebody up there to do it" (Tr. 83). He further testified that he voiced his concerns "throughout the whole period of the job" but, because the job was behind schedule, his men "sometimes" had to do work that "went against everything that Tri-City had set up safetywise and, we tried to fulfill those safety requirements and still fulfill our obligation as a subcontractor to Trammell-Crow" (Tr. 95).  To counteract the failure of the general contractor to abate the hazardous conditions, Bruhns instructed employees working under his supervision how to avoid the hazardous conditions or how to safely work around them (Tr. 83, 84, 85).  These instructions were given at respondent's safety meetings and also on the job whenever employees were required to work in the hazardous areas (Tr. 93).

Respondent's final witness was Jody G. Lasalle, an electricians' helper who worked at the jobsite during the pertinent period (Tr. 113, 114).  Lasalle testified he attended safety meetings twice a month at which safety concerns were a regular topic of discussion (Tr. 115).  He further testified he regularly received instructions on the job concerning how to avoid or work safely around the defective ladders and unguarded floors (Tr. 115-118).

Respondent's documentary exhibits provide little assistance to the court in resolving the ultimate issue.  Exhibit R-1 is a copy of respondent's safety handbook which is issued to each employee at the time of employment.   It contains the usual safety subjects covered in pamphlets of this type including an admonition to secure portable ladders.  Exhibit R-2 is a copy of the contract executed between respondent and the general contractor.  It has limited relevance to the issues in the case except for the provision contained in paragraph seven which provides for harsh remedies against respondent in the event respondent failed to perform its work.  Exhibit R-3 is a list obtained by respondent from the Occupational Safety and Health Administration purporting to show previous inspections of respondent conducted under the Act.  This document has no relevance to the issues in this case.   Exhibits R-4, R-5, R-6, R-7 and R-8 consist of various documents including safety meeting minutes, letters from respondent to general contractors alerting them to hazardous conditions at various work sites, communications from respondent's safety director to field personnel concerning safety on the work sites, etc.  All of these documents, however, were generated after powers took over as safety director and subsequent to the Secretary's inspection.  Accordingly, they bear no relevance to the situation which existed at the jobsite in question during the pertinent period.

DISCUSSION

The success or failure of respondent's affirmative defense depends upon resolution of the following questions:

1.  Did respondent make a good faith effort to induce the general contractor to abate the hazardous conditions?
2.  In the alternative, did respondent take reasonable steps to protect its employees by instructing them to avoid these hazards or exercise care while working in these areas?

It is clear in the record that Borderick's July memorandum to respondent (Ex. C-12) did not address the conditions cited by the Secretary.   There is no other relevant evidence[[2]] in the record that respondent made written complaints to the general contractor during the pertinent period.  However, the record reflects that Bruhns, respondent's job superintendent, discussed the conditions concerning the ladders and railings on several occasions with the general contractor's job superintendent and his assistant in an effort to get these conditions rectified (Tr. 83).   Bruhns frankly admitted he did not aggressively pursue the matter because of his reluctance to jeopardize his company's relationship with the general contractor.  He testified that he discussed this matter with his immediate supervisor, Dave Gardner, who also brought the matter to the attention of the general contractor's supervisory personnel (Tr. 83-84).  This court observed the demeanor of this witness during his testimony and finds no reason to discount his credibility. While this court believes respondent could have been more forceful in its demands upon the general contractor, respondent's timidity is understandable in view of the economic realities which existed under the terms of respondent's contract.  This court concludes that respondent did not ignore its safety responsibilities at this work site and made reasonable efforts to induce the general contractor to abate the unsafe conditions.  These efforts, although minimal, reflect a recognition by respondent of its safety responsibilities "that is consonant with the goals of the Act."  Dutchess Mechanical Corp., 78 OSAHRC 59/B14, 6 BNA OSHC 1795 at 1796, 1978 CCH OSHD 22,876 at 27,679 (No. 16256, 1978).  See also Lewis & Lambert Metal Contractors, Inc., 84 OSAHRC 45/A3, 12 BNA OSHC 1026, 1984-85 CCH OSHD 27,073 (No. 80-5295S, 1984).

This court further finds that respondent took alternative measures to protect its employees from the cited hazards.  Bruhns testified he instructed employees concerning how to avoid the hazards or work around them safely (Tr. 83).  This was done at respondent's safety meetings as well as on the job (Tr. 84).  Bruhns' testimony in this respect was corroborated by that of Jody Lasalle[[3]] who confirmed that employees were regularly instructed regarding safety both on the job and at safety meetings (Tr. 115, 116).  The only evidence offered by the Secretary to counteract the testimony of Bruhns and Lasalle was the testimony of Compliance Officer Nicou, who interviewed "six or seven" of respondent's employees during his inspection who purportedly informed him that they had received no instructions from respondent to avoid or work safely around the defective ladders and the open-sided floors (Tr. 39, 40).  Even though Nicou's testimony falls within the hearsay exception provided in Rule 801 (d) (2) (D) of the Federal Rules of Evidence and is admissible, this court assigns little weight to its probative value.  Nicou did not identify these employees by name nor did the Secretary's counsel develop the facts and circumstances relative to these interviews.  Nicou's testimony, based upon admissible hearsay, is insufficient to overcome the testimony of Bruhns and Lasalle.  It is concluded that respondent took reasonable alternative measures to protect its employees by instructing them to avoid the hazards or to exercise caution whenever exposure to the hazards was unavoidable.  Electric Smith, Inc. v. Secretary of Labor, 666 F.2d 1267 (9th Cir. 1982).

FINDINGS OF FACT

1.  During the period pertinent to this case, respondent was engaged as the electrical subcontractor at a multi-employer work site located in Orlando, Florida.  Nine apartment complexes were under construction at this work site, some of which were framed and decked to the third-story level.   Approximately 15 employees of respondent were engaged in work activities at this site.
2.  On October 19, 1989, the work site was inspected by a compliance officer of the Occupational Safety and Health Administration.  At the time of the inspection, the following hazardous conditions existed:

(a) Portable ladders in use at buildings one and six were not tied, blocked or otherwise supported to prevent their displacement;
(b) Job-made ladders in use at buildings one and six were improperly constructed in that the cleats on these ladders were not inset into the edges of the side rails one-half inch; filler blocks were not used on the rails between the cleats; the cleats were not secured to the rails with three 10d common wire nails or fasteners; and the cleats were not uniformly spaced;
(c) Open-sided floors six feet or more above adjacent floors were not guarded by standard railings on all open sides at the following locations:

(1) South side of building one, first and second floors;
(2) At the perimeter of building six;
(3) On the second floor of building five.

3.  Respondent's employees were exposed to the conditions described in the foregoing finding of fact.  Respondent had knowledge of these conditions and was aware that its employees were exposed to these hazards.
4.  The conditions described in finding of fact two were the responsibility of the general contractor and were neither created nor controlled by respondent.
5.  Respondent's supervisors at this work site called these hazardous conditions to the attention of representatives of the general contractor on several occasions in an effort to induce the general contractor to abate the conditions.  Respondent's efforts, however, were unsuccessful and the hazardous conditions remained unabated.
6.  Faced with the general contractor's refusal to abate the conditions, respondent's supervisors instituted a practice of instructing employees in ways to avoid or minimize exposure to these conditions.  These instructions were disseminated at respondent's bi-weekly safety meetings and on the job whenever it was necessary to send employees into these areas.

CONCLUSIONS OF LAW

1.  This court has jurisdiction of the parties and subject matter in this proceeding.
2.  Respondent has established an affirmative defense under the Anning-Johnson/Grossman rule by demonstrating that it took reasonable alternative measures to protect its employees from the hazards created and controlled by the general contractor.

ORDER

It in therefore ORDERED:

1. Serious citation one is vacated.
2. Repeat citation two is vacated.

EDWIN G. SALYERS
Judge

Dated: August 23, 1990


FOOTNOTES:
[[1]] Powers became respondent's safety director in November 1989, immediately following the Secretary's inspection in this case (Tr. 125).  It is unclear in the record whether he had any knowledge of respondent's safety practices at the time of or prior to the Secretary's inspection.

[[2]] As noted above, exhibits R-4 through R-8 do not relate to the pertinent period.

[[3]] Although this witness was subpoenaed by the Secretary, he was not called to support the Secretary's case (Tr. 114).  He was, however, called by respondent and is considered by this court to be a credible witness.