OSHRC Docket No. 12255
Occupational Safety and Health Review Commission
January 19, 1978
Before CLEARY, Chairman; and BARNAKO, Commissioner.
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor
Stanford C. Madden, for the employer
The decision of Judge Alan M. Wienman, dated September 18, 1975, is before us pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereafter "the Act"] upon the granting by former Commissioner Moran of petitions for discretionary review filed separately by the Secretary of Labor and the respondent, Bratton Corporation. n1
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n1 Commissioner Moran participated in discussions of this case, but not in the final voting, which occurred subsequent to the expiration of his term on April 27, 1977.
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The petitions except to the Judge's decision on the basis of his reading of Anning-Johnson Co. & Workinger Electric, Inc., v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975).
Respondent is a subcontractor that supplied and installed light [*2] structural steel items for the Thomas Construction Company, the general contractor, in the construction of a six-story building for the Southwestern Telephone Company in Kansas City, Missouri. Following the inspection of the jobsite by the Department of Labor, respondent was issued a citation alleging violation of section 5(a)(2) of the Act for failure to comply with 29 CFR § 1926.500(e)(1) and 29 CFR § 1926.501(f). n2 A combined penalty of $45 was proposed.
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n2 § 1926.500 Guardrails, handrails and covers.
* * *
(e) Stairway railings and guards.
(1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails . . . .
§ 1926.501 Stairways.
* * *
(f) Permanent steel or other metal stairways, and landings with hollow pan-type treads that are to be filled with concrete or other materials, when used during construction, shall be filled to the level of the nosing with solid material. The requirement shall not apply during the period of actual construction of the stairways themselves.
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The issues before us are:
(1) whether the subcontractor is responsible under section 5(a)(2) of the Act for the absence of guardrails on a stairway that it was contractually liable to install but had not yet installed?
(2) whether the subcontractor is responsible under section 5(a)(2) for unfilled landings when it claims to have no contractual obligation and is prohibited from filling the landings due to craft jurisdiction?
Two particular items which Bratton had contracted to install are relevant in this matter: metal pan staircases and metal handrails for staircases. On January 19, 1975, the compliance officer for OSHA visited the jobsite and found the metal pan stairways in place with concrete poured in the steps of each staircase but not in the landings at the end of each flight. He also found that certain stairways did not have handrails affixed and further found that the employer had brought handrails to the job to install but had returned them to its shop for reworking as they did not fit. No temporary handrails had been installed by the general contractor nor by anyone else on the stairways which lacked handrails.
As to the metal pan stairs, [*4] under the subcontract between the general contractor and the respondent, the duty of installing the pan form staircases was that of respondent. The duty of filling the pans with concrete was that of the general contractor. The general contractor had filled the pan stairs with concrete but had not filled the landings with concrete nor with any temporary material to provide a level surface at those landings. On the date in question, three of respondent's employees were using the stairways to reach their assigned work station on the third floor of the building.
Judge Wienman affirmed the violation of § 1926.500(e)(1) and vacated the violation of § 1926.501(f) on the basis of the Seventh Circuit's decision in Anning-Johnson Co. & Workinger Electric, Inc., supra. He found that § 1926.500(e)(1) was not only violated by respondent, but also that compliance was specifically within the contractual responsibility of respondent. Accordingly, he affirmed the violation and assessed a penalty of $25. While Judge Wienman found a factual violation of § 1926.501(f), he vacated that portion of the citation because respondent did not have the responsibility to fill the stair landings. [*5]
Respondent contended that it was not responsible for either allegedly violative condition because it did not have control of either situation. Respondent argued that once the stairway was erected it came under the control of the general contractor. It was also argued that the delay in installation of the permanent rails was not attributable to it. Similarly, respondent claimed that it did not have contractual responsibility for the unfilled landings. Respondent also claimed that it was prohibited from filling the landings due to craft jurisdiction. Consequently, respondent maintained that it had no authority to correct the violations. The Secretary contended that respondent was responsible for both conditions because its employees were exposed to the hazardous conditions.
The Seventh Circuit's decision anteceded the Commission's decisions in Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976), and Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976). In those decisions, we declined to follow the court's decision in its entirety. We held that, where [*6] the usual criteria establishing employer liability have been shown, a non-creating, non-controlling subcontractor on a multi-employer construction site can defend by showing that it took realistic steps, as an alternative to literal compliance with the standard, to protect its employees. See also Mayfair Construction Co., 77 OSAHRC 178/A14, 5 BNA OSHC 1877, 1977-78 CCH OSHD para. 22,214 (No. 2171, 1977); Data Electric Co., 77 OSAHRC 28/C14, 5 BNA OSHC 1077, 1977-78 CCH OSRD para. 21,593 (No. 13122, 1977).
Here, it is uncontroverted that three employees of the employer were using the unguarded stairs to reach their place of work on the third floor. Therefore, they were exposed to the hazard of falling. It is also clear from the testimony of respondent's vice president and general superintendent that Bratton knew of this condition. Accordingly, the Secretary has made out a prima facie case for a violation of § 1926.500(e)(1).
The Secretary does not address the issue of sufficient control to install temporary guardrails, but rather attaches a brief from a different case that is not squarely in point. Also, the Judge does not discuss the issue. Assuming arguendo that [*7] respondent has carried the burden of showing that it lacked sufficient control to provide temporary handrails, there is nothing concerning any other realistic measures that might have been taken to protect the employees, including notice to the general contractor. Therefore, consistent with out precedent in Anning-Johnson and Grossman Steel, we hold that a violation exists. But consistent with those decisions, we shall afford the respondent an opportunity within ten (10) days from the date of this order to move to remand for the taking of additional evidence on the Anning-Johnson and Grossman Steel defenses. We agree with the Judge's assessment of a $25 penalty.
In considering the metal pan stairs, we first note that the general contractor had a contractual duty to fill the pans. He had previously filled in the stairs but had not yet filled in the landings. There is no evidence of record as to whether respondent took any alternative, feasible steps to protect its employees. Therefore, the Anning-Johnson and Grossman Steel defenses has not been established on this record. Accordingly, we affirm this item but assess no penalty. However, respondent is [*8] afforded an opportunity to move for a remand to present additional evidence within ten (10) days from the date of this order.