ZWICKER ELECTRIC COMPANY

OSHRC Docket No. 11771

Occupational Safety and Health Review Commission

April 21, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

Peter M. Panken, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge David H. Harris, dated October 16, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i). n1 That decision, which is attached hereto as Appendix A, n2 held in part that respondent was in nonserious violation of 29 U.S.C. 654(2) by failing to comply with the occupational safety standards codified at 29 C.F.R. 1926.500(c)(1), (d)(1), and (e)(1)(i). n3 For the reasons which follow, we reverse those findings and vacate all three charges.

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n1 On December 15, 1975, pursuant to a motion by the Secretary of Labor requesting such action, we consolidated this case with Secretary v. Zwicker Electric Company, Inc., OSAHRC Docket No. 12271. After reviewing the cases more closely, we have concluded that the facts of the two cases are too disparate to resolve them together. Accordingly, we sever the cases for decision pursuant to 29 C.F.R. 2200. 10.

n2 Chairman Barnako does not agree to this attachment.

n3 The propriety of the Judge's vacation of the remaining item in the citation is not before us.

[*2]

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In November, 1974, complainant's safety inspector conducted several inspections of a construction project in Brooklyn, New York, where respondent, as one of many subcontractors at the project, was engaged in electrical work. In the course of his inspection, the safety inspector found, on the lobby floor in a building identified as building C-4, an opening approximately 20 feet wide which was designed to accommodate the lobby door. On the exterior side of the wall, adjacent to the opening, there was a ditch approximately 12 feet deep. The safety inspector found a similar opening on the lobby floor in building C-8, alongside which ran a ditch approximately 10 feet deep. Since neither opening was barricaded in any way, respondent was cited for noncompliance with 29 C.F.R. 1926.500(d)(1). n4 Adjacent to the door opening in building C-4, the safety inspector saw an unguarded window opening which was approximately 41 inches wide and 6 feet high. For this condition, respondent was cited for noncompliance with 29 C.F.R. 1926.500(c)(1). n5 The remaining violation in issue pertains to respondent's noncompliance [*3] with 29 C.F.R. 1926.500(e)(1)(i) n6 in that two stairways between the first two floors in building C-8 were not equipped with railings.

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n4 That standard provides in pertinent part:

"Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent . . . ."

n5 That standard provides in pertinent part:

"Wall openings, from which there is a drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface shall be guarded . . . ."

n6 That standard provides in pertinent part:

"Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails . . . ."

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Respondent has never seriously disputed the existence of the violative conditions. Respondent does, however, contend that it was in no way responsible for the conditions and that its employees were not endangered by the alleged hazards. We find that both contentions are meritorious.

Complainant's safety [*4] inspector testified that he observed six of respondent's employees performing minor electrical work on the first and second floors of building C-4, where the wall opening and one of the floor openings existed. He later retracted this statement and testified that he never actually saw the employees on these floors, but was told by respondent's assistant foreman that they were there. Subsequently, in response to a question from the Judge asking whether the assistant foreman actually said the employees were on the first and second floors, the inspector equivocated further and responded that the assistant foreman only told him that respondent's employees were in the building.

With respect to the alleged violation of the stairway-guarding standard, the inspector testified that he saw workers on the second floor of building C-8 and that they were identified as employees of respondent by the assistant foreman. He also testified that, although there was an elevator on the first floor, it was not operating at the time. On cross-examination, the inspector admitted that he did not ask the employees or respondent's assistant foreman how they got to the second floor. He also equivocated [*5] on cross-examination regarding the operation of the elevator, stating that he really was not certain whether or not the elevator was in operation at the time.

Respondent's foreman testified that he did not know for certain whether his employees were on the lower floors of buildings C-4 and C-8. He stated, however, there was no reason for them to be on the lower floors at the time of the inspection, because respondent's work procedure required the employees to commence work on the upper floors of each of the buildings and work their way down. The foreman also testified that there would be no reason for the employees to use either of the stairways in building C-8 since respondent had hired an elevator operator for the day in question. On cross-examination, the foreman admitted that in order to use the elevators in each of the buildings respondent's employees would approach within 30 to 40 feet of the floor and wall openings, n7 but he added that there was no reason for them to get any closer to the openings than that.

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n7 The parties subsequently agreed by stipulation that this distance was 38 feet.

[*6]

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Respondent's assistant foreman testified that he never told complainant's inspector that his employees were working on the second floor of building C-8. He stated that, when asked by the inspector, he merely replied that six of respondent's employees were working in the building. On the day in question, respondent's employees started to work at the top of the building and worked their way down. He also stated that in building C-8 they could not have been more than two floors down from the top floor and that in building C-4 they would only have been four or five floors from the top floor. n8 He specifically denied that any of respondent's employees were working in the cited areas in building C-8 on the inspection date.

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n8 The buildings consisted of 20 stories.

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On the basis of the foregoing testimony, we find that complainant has failed to establish by a preponderance of the evidence n9 that any of respondent's employees were actually [*7] exposed to the alleged hazardous conditions or had access thereto. Moreover, we cannot infer from the evidence that respondent created the noncompliant conditions or was responsible therefor. n10 Under the circumstances, the alleged violations cannot be affirmed. n11

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n9 See Olin Construction Co. v. OSAHRC, 525 F.2d 464 (id Cir. 1975); Secretary v. Armor Elevator Co., 5 OSAHRC 260 (1973).

n10 The only evidence regarding this issue is the statement by the inspector that he was told by an employee of respondent that the general contractor was responsible for providing barricades and the statement by respondent's assistant foreman to the same effect. Furthermore, respondent contended from the start that it had no control over the areas in question, and complainant introduced no evidence whatsoever to refute that contention.

n11 Secretary v. Northeast Marine Terminal Company, OSAHRC Docket No. 8221, August 31, 1976. Footnote 1 of that decision discusses the theories of the Commission members on employer liability at multi-employer construction sites. As that footnote points out, in a situation such as prevails in the instant case, an employer is not responsible under any theory of liability. Consequently, the divergent positions taken by Chairman Barnako and myself in previous decisions are in no way inconsistent with our agreement in this opinion.

[*8]

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Accordingly, the citation is vacated in its entirety.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Chairman, concurring:

Judge Harris issued his decision in this case prior to our decisions in Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 OSHC 1185, 1975-76 OSHD para. 20,691 (1976); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 OSHC 1193, 1975-76 OSHD para. 20,690 (1976); and Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 OSHC 2002, 1975-76 OSHD para. 20,448 (1976). The Judge, however, anticipated much of our reasoning in those cases. For example, he concluded that a subcontractor on a construction site who did not create or control a violative condition must nevertheless take reasonable steps to protect its employees against the hazard. See Grossman Steel & Aluminum Corp., supra; Anning-Johnson Co., supra. He also concluded that an employer's duty runs to all violations which are accessible to its employees. See Gilles & Cotting, Inc., supra.

In my opinion, however, the Judge's application of the "access" rule is inconsistent with our subsequent decisions. We have said that, in order to show a hazard [*9] is accessible to employees, the Secretary must show it is reasonably predictable that the employees would be in a zone of danger resulting from the hazard while in the course of their assigned working duties, their personal comfort activities while on the job, or their normal means of ingress-egress to their assigned workplaces. See Gilles & Cotting, Inc., supra; see also A. Munder & Sons, Inc., 76 OSAHRC 106/A2, 4 OSHC 1593, 1976-77 OSHD para. 21,000 (1976); Public Improvements, Inc., 76 OSAHRC 140/E8, 4 OSHC 1864, 1976-77 OSHD para. 21,326 (1976).

In this case, the alleged violations are the lack of perimeter guarding at certain locations on the first floor of both buildings C-4 and C-8, and the lack of railings on the stairways leading from the first to the second floor in building C-8. At the time of the alleged violations Respondent, the electrical subcontractor, was performing finishing work in both buildings. The buildings were twenty stories high. Respondent's procedure was to begin the finishing work at the top floor, and then work its way down. At the time involved herein, Respondents employees were working several stories from the top in both buildings. [*10]

Thus, in neither building were Respondent's employees assigned to work near a zone of danger created by any of the violative conditions. Although they would eventually work on the lower floors, the conditions would presumably have been corrected in the normal course of construction, and it is not reasonably predictable that Respondent's employees would have been working on the first or second floors before the conditions were corrected. Furthermore, there is no indication that the employees' personal comfort activities would have taken them any closer to the hazards than their normal routes of ingress or egress. The question thus becomes whether it is reasonably predictable that Respondent's employees would have been in a zone of danger in travelling to and from the upper floors of the building.

The record shows that Respondent's employees entered the buildings on the first floor, walked to the elevators, and rode the elevators to the floors on which they were working. The paths they followed would take them no closer than 30 feet to an unguarded opening. Thus, in using their normal means of ingress-egress, they would not be in a zone of danger resulting from the unguarded [*11] openings. Similarly, although the stairways without railings were available for use by somebody moving from the first to the second floor, it is not reasonably predictable that employees attempting to travel from the first floor to the upper floors would use a stairway when elevators were available on the first floor. I therefore conclude that Respondent's employees did not have access to the zones of danger created by the violative conditions, and that the citation is properly vacated.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

For the reasons that follow, I would remand this case to Judge Harris.

All the issues on review in this matter are controlled by Commission opinions issued after the Judge's decision. The scope of an employer's liability for employee exposure to noncomplying conditions at multiemployer construction sites was examined in our opinions in Anning-Johnson Co., supra and Grossman Steel & Aluminum Corp., supra. Our decision in Gilles & Cotting, Inc., supra dealt with the correct test for resolving questions of employee exposure to hazardous conditions.

Judge Harris did not have the benefit of these decisions when he issued his decision [*12] in this case. Nevertheless, as noted in the concurring opinion, the Judge correctly anticipated much of the reasoning in these decisions. Regarding employer liability at multiemployer construction sites, the Judge concluded that, although a contractor neither creates nor controls specific hazardous conditions at a multiemployer site, it has a duty to take reasonable steps to protect its employees from the conditions. This is the basic rule in our Anning-Johnson and Grossman Steel opinions. Similarly, the Judge correctly predicted the basis for our decision in Gilles & Cotting when he applied a test of employee exposure predicated upon access to the dangers attendant to noncomplying conditions, as opposed to actual employee exposure to such dangers.

Judge Harris found both sufficient exposure to the hazards and a failure on the part of respondent to protect its employees adequately. However, the Judge's analysis and his rulings on these issues did not conform in many respects to the specific analytical approaches set out in Anning-Johnson, Grossman Steel, and Gilles & Cotting. While it may be appropriate in most cases for this Commission to either affirm [*13] or reverse a Judge by applying precedent that is subsequent to the Judge's decision, I submit that, considering the state of the record, it is not the better course in the instant case.

As indicated in the lead opinion, conflicting evidence was offered by the parties on several important factual issues. This is particularly true concerning testimony on the movement of respondent's employees about this two-building worksite on the day of inspection. Resolution of these conflicts is imperative before any attempt can be made to apply the test of employee exposure announced in Gilles & Cotting, Inc., supra. Judge Harris did not expressly resolve these conflicts. Thus, if this Commission is to apply the Gilles & Cotting test, it must either resolve these conflicts itself or remand the case to the Judge for his resolution. Unlike my colleagues, I would adopt the latter approach.

Proper resolution of the conflicting testimony offered in this case necessarily involves credibility findings. As a matter of sound discretion, it is preferable that credibility findings be made by the presiding officer, rather than by the reviewing agency. Evansville Materials, Inc., 3 BNA [*14] OSHC 1740, 1975-76 CCH OSHD para. 20,187 (No. 3444, 1975). I am unable to perceive any compelling reasons for departing from this general rule here. Accordingly, this case should be remanded to Judge Harris for further proceedings n12 including appropriate credibility findings.

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n12 On remand respondent would, of course, be free to assert either of the defenses announced in Anning-Johnson Co., supra and Grossman Steel & Aluminum Corp., supra. In addition, Judge Harris would be directed to examine the questions of liability in this case under principles announced in those opinions.

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APPENDIX A

DECISION

Ian P. Spier and Francis V. LaRuffa, Regional Solicitor, for Complainant

Peter M. Panken, for Respondent

HARRIS, Judge, OSAHRC

This case presents the issue of what constitutes culpable exposure of his employees by a subcontractor to non-serious jobsite violations of safety standards promulgated pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., the Act) [*15] where the subcontractor did not create or control the conditions which were in violation of the said standards.

Respondent, a New York corporation, is a medium sized electrical contractor, regularly employing approximately 400 persons. It does business in New York state as well as in states other than New York and in 1974 its sales approximated $19.4 million.

In November, 1974 respondent was engaged in installing electrical work, as a subcontractor, in a construction project in the Borough of Brooklyn, New York which consisted of over 40, 20-storied structures.

The jobsite was inspected by complainant's compliance officer on November 19, 20 and 21, 1974 and as a result of that inspection, respondent was issued a citation on December 5, 1974 charging that it was in non-serious violation of 29 U.S.C. 654(a)(2) for failure to comply with four standards promulgated under the Act.

Under Item 1 of the citation, respondent is charged with a violation of the standard at 29 C.F.R. 1926.500(d)(1) in that:

Location: Building C-4 and C-8 1st floor main lobby [sic]. Unprotected open sided floors. On the exterior side along the foundation there is a excavation trench 12 feet deep by building [*16] C-4 and a excavation trench 10 feet deep by building C-8.

The standard provides:

(1) Every opensided 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)(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.

Source: 39 FR 22801, June 24, 1974

Item 2 alleges a violation of the standard at 29 C.F.R. 1926.500(c)(1) in that:

Location: Building C-4; 1st floor main lobby. Unprotected wall opening - 41 inches wide on the right side facing the front of the building from the interior. On the exterior side along the foundation there is a excavated trench with a 10 foot drop.

This standard provides:

(1) Wall openings, from which there is a drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface, shall be guarded as follows:

(i) When the height and placement of the opening [*17] in relation to the working surface is such that either a standard rail or intermediate rail will effectively reduce the danger of falling, one or both shall be provided;

Source: 39 FR 22801, June 24, 1974

Item 3 alleges a violation of the standard at 29 C.F.R. 1926.500(e)(1)(i) in that:

Location: Building C-8, no handrails on both interior stairways from the 1st floor to the 2nd floor, for employee's protection while ascending or descending.

This standard provides:

(1) Every flight of stairs having four or more risers shall be 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:

(i) On stairways less than 44 inches wide having both sides enclosed, at least one handrail, preferably on the right side descending;

Source: 39 FR 22801, June 24, 1974

Item 4 alleges a violation of the standard at 29 C.F.R. 1904.5(a) in that:

Occupational Safety and Health Administration OSHA Form #102, Annual Summary of Occupational Injuries and Illnesses, was not compiled, nor available for review for the fiscal year 1973. Location: Field office, at this job site.

This standard provides: [*18]

(a) Each employer shall compile an annual summary of occupational injuries and illnesses for each establishment.

Each annual summary shall be based on the information contained in the log of occupational injuries and illnesses for the particular establishment. Form OSHA No. 102 shall be used for this purpose, and shall be completed in the form and detail as provided in the instructions contained therein.

Source: 36 FR 12612, July 2, 1971

Respondent's Notice of Contest, served upon complainant on December 30, 1974 and forwarded by the latter to the Occupational Safety and Health Review Commission (Review Commission) on January 10, 1975, places in issue the allegations in each item of the citation as well as the penalties proposed by complainant which aggregate $230 (29 U.S.C. 654(a)).

The inspection actually commenced at about 2 o'clock on the afternoon of November 19, 1974. The only subcontractor representative available at the time was respondent's subforeman. The subforeman was unable to produce "Form OSHA 102" at the compliance officer's request and advised him that shortly before the inspection, respondent's trailer-office had been broken into and robbed (Tr. 16-17; 59; [*19] 68). Thereupon the compliance officer advised that he would return to complete the inspection on the following morning (Tr. 16).

On November 20, 1974, at about 8:30 a.m., accompanied by respondent's subforeman and other representatives of subcontractors who had been assembled by the general contractor's representative, the walkaround inspection was begun (Tr. 16; 61).

Four of the eight buildings which comprise Section C of the construction project were being worked in at this time.

Building C-4 (Item 1 of the citation) was 20 stories high and had been completely enclosed except for the lobby floor (Tr. 18). An opening designed to accommodate the lobby door, which was 20 feet 8 inches wide, in front of which ran a ditch approximately 12 feet deep, was not provided with a barricade (Tr. 18; 25; 91; 113; 115; 130-131). Adjacent to this opening was an opening for a window which was approximately 41 inches wide by 6 feet high, across the bottom of which opening ran a single course of concrete block about 8" high, outside of which ran a trench about 10 feet deep (Tr. 19; 133-134; Item 2 of the citation). Although the compliance officer did not see any of respondent's employees at [*20] work in this structure, 6 of its employees were engaged in performing electrical work on the upper floors (Tr. 20; 22-24; 87; 107-108; 123-124). The compliance officer called the general contractor's representative's attention to the missing barricade in the door opening in Building C-4 on November 20, 1974. A barricade was provided in this space on the next day (Tr. 18).

Elevators were in operation for the use of workmen in Building C-4 (Tr. 25; 88; 123; 128). Material and necessary supplies for respondent's work were placed in shopping carts and moved about as needed. Men and shopping carts were moved from floor to floor in the elevators which were operated by employees of the general contractor who were supplied upon request (Tr. 107; 108; 122; 123). Respondent's employees were not required to pass these wall openings in order to gain access to the elevators (Tr. 97-98); however, the lobby floor is open and accessible on all sides and workers are not restricted in their use of this area (Tr. 91). No evidence was offered concerning instructions issued to respondent's employees designed to restrict them to the immediate vicinity of the elevator entrance or to prohibit their [*21] approach to the unprotected wall openings. It is clear, furthermore, that respondent had been engaged in performing its work in this building for some time prior to the date of the inspection herein and knew or should have known of the existence and location of the said wall openings.

While the compliance officer could not supply the distance from the elevators in Building C-4 to the unprotected wall opening (Tr. 97), it was stipulated that this distance was 38 feet (letter from Parker, Chapin, and Flattau, May 16, 1975 and attachments).

In Building C-8 (Item 1 of the citation) a door opening was found in the front portion of the open lobby floor similar to that described in Building C-4 (Tr. 26). As in Building C-4, some of respondent's employees were engaged in minor electrical work on the upper floors and movement of men and material was accomplished by use of the elevators operated by employees of the general contractor. As with Building C-4, the compliance officer did not observe any of the respondent's men who were at work on the upper floors of this building. The distance from the elevator doors to the wall opening in Building C-8 is stipulated to be 30 feet (letter, [*22] Parker, Chapin and Flattau, supra). In Building C-8 as in Building C-4, access to the entire lobby area was available, and there is no evidence that any effort was made by the respondent to prohibit movement of its workers to the vicinity of the wall opening and the open ditch beyond although it was not necessary for any of these employees to pass the said wall opening in order to gain access to the elevators.

Item 3 of the citation charges a violation of the standard requiring handrails on two stairways leading from the first to the second floor of Building C-8. It is here that, for the first time, we have testimony by the compliance officer that he actually observed any of respondent's employees at work (Tr. 33). According to this witness, two men working on the second floor were identified as respondent's employees by its subforeman and foreman (Tr. 34). On cross-examination, however, he was not sure that the foreman was present (Tr. 65-66; 72) and conceded that his official administrative narrative, the basis for his recommending that a citation issue (Tr. 101), makes no reference to the foreman being present at this time (Tr. 65). Indeed, he neither spoke to these men nor [*23] obtained their names (Tr. 81-82). In the face of his equivocal testimony concerning the operation of the elevators in Building C-8 (Tr. 82-84), his admission that the stairways were not the only way these men could have gotton to the second floor (Tr. 89), his failure to question these men as to how they got to the second floor and the denial by respondent's subforeman that any of respondent's employees were at work on the second floor (Tr. 127; 129), I cannot find that complainant has established that any of respondent's employees were present on the second floor of Building C-8 or were in the vicinity of the stairways referred to in said Item 3 at any time during the inspection conducted by the compliance officer. On the other hand, there appears to be no dispute that there were two stairways leading from the first to the second floor in the said building and that the required handrails were not in place thereon (Tr. 34-35; 125).

Access to the stairways in Building C-8 was not restricted (Tr. 34; 125) and it is evident that Respondent knew that the stairways in question were not equipped with handrails (Tr. 134). That this knowledge on Respondent's part existed prior to the [*24] date of the inspection is evident from its foreman's testimony that the stairways could not be barricaded because to do so would create a fire hazard (Tr. 125). No evidence was offered to indicate that the Respondent created or was in control of the violations described herein and it appears that these conditions were the responsibility of the general contractor who, in fact, corrected the lack of a proper barricade at the wall and window openings (Tr. 18; 130). None of the workmen involved appeared as witnesses. The complainant relied upon his compliance officer and the respondent presented its foreman and subforeman.

Respondent, as to the open-sided floor and the window opening, contends that the citation should be vacated because the complainant presented "no credible evidence that any Zwicker employees were on the floors when the open-sided platforms were observed. Even if the deduction (which is by no means evidence) is drawn that Zwicker employees did use elevators which opened on the floor, the employees would not have had to go within 30 or 38 feet of the openings, if such openings existed when the employees used the elevators." (Br. pp. 14-15) and that "Zwicker did not [*25] have the responsibility for installing the guards throughout the site, so its liability would therefore be limited to those instances where its employees were in danger of falling." (Br. p. 11). In support of its contention, respondent relies upon Secretary v. Hawkins Construction Company, 8 OSAHRC 569 (1974), Secretary v. Bechtel Corporation, 12 OSAHRC 774 (1974), both decisions of the Review Commission, and Secretary v. Public Improvements, Inc., Docket No. 1955, decided by Ditore, J., on March 20, 1974, CCH par. 17519, review ordered April 19, 1974; Secretary v. Cornell and Company, Inc., Docket No. 8721, decided by Worcester, J., on February 20, 1975, CCH par. 19335, review ordered; Secretary v. A. Munder, Inc. et al., Docket Nos. 1858 and 1060, decided by Burroughs, J., on May 22, 1973 (CCH Par. 15757), review ordered June 19, 1973; Secretary v. Thomas F. Mulligan & Sons, Inc., Docket No. 3848, decided by O'Connell, J., on March 11, 1975 (CCH par. 19409), which became a final order for lack of review and Secretary v. Charles F. Zweifel and Company, Inc., 15 OSAHRC 439 (1975), decided by Burroughs, J., on February 5, 1975 [*26] and which became a final order for lack of review.

In addition, respondent calls attention to Anning-Johnson Company, et al., v. Occupational Safety and Health Review Commission and Peter J. Brennan, Secretary of Labor, decided by the Seventh Circuit Court of Appeals on May 27, 1975 (Nos. 74-1381, 74-1382), and contends that that court held that, as a general proposition, a subcontractor who neither created, caused, nor is otherwise responsible for conditions deemed a nonserious violation of a standard to which his employees were exposed, is not in violation of that standard.

In Hawkins, supra, the respondent, a general contractor was held not liable for failure to shore an excavation where it had refrained from backfilling an excavation at the specific request of another corporation and could not have known that the latter would fail to properly shore. None of respondent's employees were involved. In Bechtel, supra, the respondent undertook to make inspections of a worksite for the owner and was not responsible for the creation of the hazard. Although 6 of respondent's employees were actually on the worksite at the time of the inspection by the Secretary [*27] of Labor, no evidence established that its employess were exposed to the said hazard. In Public Improvements, supra, respondent, a subcontractor was held not liable for hazards which it did not create, where its employees were working 15 to 20 feet from an unguarded open-sided floor and about 10 feet from a floor opening. There was evidence that said employees were not required to approach closer to the said hazards. In Cornell and Company, Inc., supra, respondent was held not liable for failure to properly guard elevator shaft openings in a floor on the 20th floor where its employees were at a coffee break no nearer than 10 feet from the shaft at the time of the Secretary's inspection and was held not liable for an unprotected stairway on the 18th floor where there was no proof that any employee of his used the stairway. In A. Munder, Inc., supra, a subcontractor was held not liable for failure to guard a floor perimeter where none of its men had to approach nearer than 10 feet from the edge and held not liable for failure to guard a shaft opening where its employees used a stairway about 30 feet from the shaft and had no assigned duties on the floor where the shaft [*28] hazard was located. In Thomas F. Mulligan & Sons, Inc., supra, respondent was held not liable for a floor opening hazard where two of its employees were observed about 30 feet from the opening and a crane guarding citation against it was vacated because it was not shown that its employees came close enough to be exposed to the hazard. In Charles F. Zweifel and Company, Inc., supra, respondent, an electrical subcontractor, was held not liable for a perimeter floor guarding hazard where two of its employees were working about 20 feet from the edge of the 14th floor and had no assigned duties which would take them closer to the unguarded perimeter.

Complainant, on the other hand, seeks to apply the reasoning of the Second Circuit Court of Appeals in Secretary v. Underhill Construction Corporation, 513 F.2d 1032 (1975) and maintains that where a hazard has been established, complainant has proved a violation if it is shown that the area of the hazard was accessible to his employees and that where his employees are required to approach to within 30 to 40 feet of the hazards, such as those herein, such access has been demonstrated as will support a finding of violation [*29] (Reply Br. p. 3). In support, complainant cites Secretary v. Air Conditioning and Electrical Systems, Inc., Docket No. 8055, Oringer, J., decided on April 22, 1975 (CCH par. 19584), which was not directed for review and became a final order on May 22, 1975. In this case, the respondent was held in non-serious violation of the standard at 29 CFR 1926.552(b)(2) although the unguarded material hoist involved was under the control of another contractor and respondent's employees "were working from 50 to 200 feet away."

On May 12, 1975, Judge Oringer, in Secretary v. Underhill Construction Corp., et al., Docket No. 8096, (CCH par. 19628), held the respondent, a subcontractor on a multi-trade construction site, liable for a serious violation of the standard requiring the guarding of hoistway entrances, where two of its employees were observed about 40 feet from the shaft on the 20th floor of the structure. This case was directed for review on June 2, 1975. In both of these cases, Air Conditioning and Electrical Systems, Inc., Docket No. 8055 and Underhill Construction Corp., et al., Docket No. 8096, supra, reliance was placed on the reasoning of the Second Circuit [*30] in Underhill Construction Corporation, supra, although neither the respondent in Air Conditioning nor the respondent in Underhill, Docket No. 8096, created, maintained or controlled the abatement of the hazard.

It is noteworthy that although the Second Circuit's opinion in Underhill Construction Corporation, supra, is self-limiting:

. . . In a situation where, as here, an employer is in control of an area, and responsible for its maintenance, we hold that to prove a violation of OSHA the Secretary of Labor need only show that a hazard has been committed and that the area of the hazard was accessible to the employees of the cited employer or those of other employers engaged in a common undertaking. (at page 1038) (emphasis added)

the Review Commission, as early as in Secretary v. California Stevedore and Ballast Company, 8 OSAHRC 811 (1974) and Secretary v. R.H. Bishop Company, 8 OSAHRC 930 (1974), and as recently as on May 2, 1975, in Secretary v. Robert E. Lee Plumbers, Inc., 17 OSAHRC 639 (1975), has determined that a subcontractor, though he neither created nor maintained a hazard or controlled its abatement, was liable for a violation [*31] of the standard involved where his employees are exposed to the hazard resulting from the violation. In Robert E. Lee Plumbers, Inc., supra, it was also held that the entire construction site was the employer's workplace, that gaining access to their work was an ordinary and necessary activity of his employees' employment and where, in so doing, his employees "passed within several feet of unguarded wall openings" they were "exposed" to the hazards presented. See also, Secretary v. California Stevedore and Ballast Co., 8 OSAHRC 811 (1974).

Until the order of remand in Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4 Cir. 1974), liability of an employer for violation of a hazard had to be predicated upon proof that his employees had been "affected" by the hazardous condition. The proof required was that of actual, as opposed to potential exposure and mere access to the hazard was not enough to support a finding of violation. Such proof was required to be clear on the record and a finding of violation could not be based upon a "presumption or inference" of actual exposure. See, Gilles & Cotting, supra, at page 1258; Hawkins Construction Company, [*32] supra; Bechtel Corporation, supra; Secretary v. City Wide Tuckpointing Service, 3 OSAHRC 194 (1973); Secretary v. Grebb Electric Company, 11 OSAHRC 389 (1974); Secretary v. J.E. Roupp & Company, Inc., 7 OSAHRC 919 (1974); Secretary v. Sletten Construction Company, 12 OSAHRC 40 (1974); Secretary v. Otis Elevator Company, 12 OSAHRC 127 (1974); Secretary v. Julius Nasso Concrete Corporation, 17 OSAHRC 332 (1975).

The issue posed by the Fourth Circuit in Gilles v. Cotting, supra, at page 1257, was:

. . . we must remand the . . . issue of access versus presence, since the Commission decision was an unexplained rejection of the administrative judge's decision and an unexplained departure from the rule of decision n1 followed in other OSHA cases that access alone is sufficient to make out a violation.

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n1 The "rule of decision" referred to by the Fourth Circuit is contained in opinions by Burroughs, J., in Secretary v. Allied Electric Company, 1 OSAHRC 440 (1972) which became a final order on June 23, 1972 and Secretary v. Harold Christiansen, et al., Morris, J., decided January 22, 1974, Docket No. 3108, which has been directed for review. Both are defective equipment violations of the standard at 29 CFR 1926.401(a)(1), the accessibility of which may be governed by 29 CFR 1926.20(b)(3).

[*33]

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The Review Commission has not, at this writing, spoken to this issue. n2

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n2 On April 21, 1975, in Secretary v. General Electric Company, 17 OSAHRC 49, it remarked: We add that our reluctance to face the "exposure" issue here is reinforced by the fact that the Second Circuit and the Fourth Circuit have expressed differing views on the "exposure" issue in Gilles & Cotting & O.S.H.R.C., 504 F.2d 1255 (4th Cir. 1974) and Brennan v. O.S.H.R.C. & Underhill Construction Corp., Nos. 74-1568 and 74-1579 (2d Cir., March 10, 1975). Gilles & Cotting is before us on remand . . . .

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As we have seen, a finding of actual exposure to a hazard has been made to depend upon the employee's proximity thereto at the time of the Secretary's inspection of the worksite. These distances have varied from several feet in Robert E. Lee Plumbers, Inc., supra, to 200 feet in Air Conditioning and Electrical Systems, Inc., supra. The [*34] Second Circuit, dealing with the question of how far from the hazard one has to be to be "in danger of falling" held, at page 1039:

. . . [Underhill argued] that as to the second only one man (though a Dic-Underhill employee) 15 feet away from the edge and not in danger of falling was observed; and as to the third, the two men using the ceiling sanding machine were 10 feet from the edge and hence not exposed. One takes it that Dic-Underhill would have us hold that for a citation properly to issue, an employee of the particular employer creating the hazard must be seen by an inspector teetering on the edge of the floor 150 feet or so up from the ground. No such interpretation of the standards would be reasonable. No such interpretation is consistent with, let alone called for by, the Act.

Countervailing arguments are given in Gilles & Cotting, supra, at page 1263, where the Fourth Circuit said:

. . . If access alone is sufficient to show a violation, the Secretary will often be able to make out a case solely on the basis of the testimony of the compliance officer. If, however, proof of employee presence in the zones of danger is required, then unless the compliance officer [*35] chances to see employees in a danger zone at the time of his inspection, the Secretary will have to depend on workers' willingness to testify against their employers under the anti-retribution umbrella of 11(c)(1) of the Act. Recalcitrant employers may be able to impede enforcement of the Act by refusing to correct safety violations disclosed by an inspection unless for each and every violation the Secretary is able to marshall employee testimony that e.g., dangerous equipment available for use was actually used or that hazardous areas accessible to workers were at one time passed through or occupied.

It would appear, therefore, that to determine an employer's liability merely by computing the number of feet distant from a hazard his employee was observed to be, may indeed operate to subvert the purpose of the Act which in expressed by the Second Circuit in Underhill Construction, supra, at page 1039 in the following language:

It is hazards toward which the Act was directed. See, e.g., 29 U.S.C. 657(f)(1), 662, 666(j). The legislative history is supportive of the proposition that actual observed danger is unnecessary. As the House Labor Committee stated:

Death and [*36] disability prevention is the primary intent of this bill. Although possible penalties for violations may be an important deterrent, they are only a partial solution. If we are to reduce disabilities and fatalities, it is essential that we guarantee adequate warning of possible hazards.

Legislative History of the Occupational Safety and Health Act 1970 at 853 (emphasis added).

* * *

. . . This is the view repeatedly taken by the courts. Brennan v. Gerosa, Inc., supra, 491 F.2d 498, 501 (5th Cir. 1974); Brennan v. OSHRC and Vy Lactos Laboratories, Inc., 494 F.2d 460, 463 (8th Cir. 1974). The keystone of the Act in short is preventability. National Realty and Construction Corp. v. OSHRC, 489 F.2d 1257, 1266-67 (D.C. Cir. 1973).

Cf., Secretary v. Savannah Iron and Fence Corporation, 10 OSAHRC 1, 3 fn. 1 (1974).

A subcontractor, engaged in the common undertaking of a modern construction, is rarely in a contractual position which permits him to abate hazards which are created by the general contractor or other subcontractors on the same job. He, like other subcontractors, must face the many complications and frustrations which are entailed [*37] in work of this kind, secured and performed under conditions which change from day to day and sometimes from hour to hour. His employees are required, by reason of their work and the progress of the construction, to move from place to place, and to gather and transport material and tools from the supply source to the progressively changing locations of their work.

Particularly during the early stages of modern construction, such employees are frequently required to pass, approach or work in the proximity of open and apparent hazards, which as has been hereinabove indicated, the subcontractor may not be able to physically abate.

It is now settled that the employer's duty to comply with the Act, as it affects the conduct of his employees, must be achievable, Secretary v. National Realty and Construction Company, Inc., (D.C. Cir. 1973) 489 F.2d 1257, 1266; Brennan v. Occupational Safety and Health Review Commission and Raymond Hendrix, d/b/a Alsea Lumber Company, (9th Cir. 1975) 511 F.2d 1139. That responsibility, as it affects his liability for a hazard, is neither diminished nor removed because the hazard is directly caused by an employee and the employer has the [*38] duty to prevent and suppress hazard-dous conduct by his employees. While the employer's duty is not an absolute one, he must exercise care to devise feasible means of protecting his employees from preventable dangers. National Realty, supra, and as that court said at page 1266:

. . . an instance of hazardous employee conduct may be considered preventable even if no employer could have detected the conduct, in its hazardous character at the moment of its occurrence. Conceivably, such conduct might have been precluded through feasible precautions concerning the hiring, training and sanctioning of employees.

See also, Brennan v. Butler Lime and Cement Company, et al., (7th Cir. September 5, 1975, No. 74-1963).

Indeed, the Review Commission, recognizing the employer's duty of final responsibility for compliance with the requirements of the Act, requires each employer to establish and strictly enforce work rules designed to effectuate employee compliance with standards promulgated under the Act, Secretary v. Murphy Pacific Marine Salvage Co., 15 OSAHRC 1, 3 (1975); Secretary v. Standard Glass Co., Inc., 1 OSAHRC 594 (1972).

In Butler Lime and Cement [*39] Company, supra, the court described an employer's duty to take preventive measures as follows:

. . . An employer must take reasonable precautionary steps to protect its employees from reasonably foreseeable recognized dangers that are causing or are likely to cause death or serious physical injury. And precautionary steps, of course, include the employer's providing an adequate safety and training program.

The Review Commission described that duty in Secretary v. Lebanon Lumber Co., 2 OSAHRC 924, 927 (1973) in similar fashion:

The Act requires that respondent do more than merely warn employees of hazards and issue instructions. The Commission has stated that an employer cannot be held to the strict standard of being an absolute guarantor or insurer of the safety of his employees. . . . The duty of the employer is to furnish his employees with a safe workplace. This necessarily implies that the employer will take whatever steps are necessary to accomplish the job safely. . . . This is not to say that one-on-one supervision is required at all times, but that the degree of supervision necessary must be determined on the facts of each case.

It seems to me that the [*40] subcontractor can discharge the duty of "prevention" which the Act imposes upon him without the perhaps costly and disruptive effects of refusing to proceed with his work in the face of hazards, created and maintained by others, which he is powerless to abate.

It is not too onerous a burden, in the interest of the protection of his employees, to require a subcontractor to survey and inspect the various sites at which his employees will be required to work and the routes over which they must necessarily travel in the performance of their assigned tasks. He should locate and designate such hazards as are open and apparent and if these hazards cannot be physically abated by him prior to the commencement of the work, precise and explicit instructions should be given to each of his employees with regard to routes to be followed, the manner and method of securing necessary supplies and tools, their behavior during lunch and other break periods and the location and nature of each hazard with instructions concerning proper behavior when in the vicinity of any such hazard. In addition, requisite safety equipment should be issued and instructions given as to their use. n3 And reasonably adequate [*41] supervision should be provided to see to it that the instructions are followed by such employees.

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n3 The court's language at page 21 of the slip opinion in Anning-Johnson Company et al v. United States Occupational Safety and Health Review Commission et al., 7 Cir. May 27, 1975, Nos. 74-1381, 74-1382, is taken to mean that that decision should be confined to the petitioners and the circumstances therein described.

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In the matter under consideration, there is no evidence that the respondent issued any instructions to its employees concerning behavior required of them in the presence of the unprotected wall and window openings herein which were in the vicinity of the elevator doors which they were required to use, nor is there any evidence of a safety program instituted by the respondent designed to instruct employees on safe behavior in the presence of hazards such these. There is no indication that the respondent made any effort to locate and note the existence of hazards which might endanger its employees [*42] or to call their existence to its employees' attention.

Under the circumstances of this case, it cannot be said that the respondent herein, has discharged its duty to assure, so far as possible, that its employees were provided with a safe and healthful workplace. As a consequence, said respondent was in violation of the standards at 29 CFR 1926.500(d)(1) and 1926.500(c)(1), as alleged.

Nor has the respondent discharged its duty to protect its employees from the hazard presented by the presence of the stairways leading from the first to the second floor which were not supplied with handrails as required by the standard at 29 CFR 1926.500(e)(1)(i). Again, as is the case with the unprotected wall openings, respondent made no effort to ascertain the existence of the hazard or to call the hazard to its employee's attention and issued no instructions prohibiting the use of the stairways in question. For the foregoing reasons, respondent was in violation of the standard at 29 CFR 1926.500(e)(1)(i), as alleged.

As for the alleged violation of the standard at 29 CFR 1905.5(a), there is no proof that respondent did not compile the annual summary required or that Form OSHA No. 102 was [*43] not completed in the form and detail required by its instructions.

Under the facts as they appear herein the danger presented by the unprotected wall and window openings to the respondent's employees while they were present in the open lobby of Buildings C-4 and C-8 is of a low order of gravity. The danger presented by the lack of stair-rails on the stairways to the second floor in Building C-8 is even more remote. The respondent, on the other hand, has a history of prior violation of 29 U.S.C. 654(2) (Tr. 37-38). Under the circumstances hereinabove described and pursuant to the factors set out in 29 U.S.C. 666(j) penalties of $50 for violation of the standard at 29 CFR 1926.500(d)(1) and $50 for violation of the standard at 29 CFR 1926.500(c)(1) are appropriate and are assessed. No penalty is assessed for violation of the standard at 29 CFR 1926.500(e)(1)(i). The allegation in the citation of violation of the standard at 29 CFR 1905.5(a) is vacated.

So Ordered.

Dated: October 16, 1975

Hyattsville, Maryland

DAVID H. HARRIS, Judge, OSAHRC