ZWICKER ELECTRIC CO., INC.
OSHRC Docket No. 12271
Occupational Safety and Health Review Commission
April 28, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
Peter M. Panken, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
This case is before the Commission pursuant to Commissioner Moran's order granting respondent's petition for discretionary review. n1 In its petition respondent sets out three basic exceptions n2 to the decision of Administrative Law Judge Jerome C. Ditore. The Judge affirmed as a serious violation an alleged repeated serious violation of 29 CFR $1926,500(d)(1) n3 for failure to provide perimeter protection on the fifth floor of a building under construction. First, respondent argues that the Judge erred in applying a test of employee exposure to hazards that is predicated upon "access" as opposed to actual exposure. Second, it is argued that, inasmuch as there was no dispute that respondent neither created nor controlled the cited condition (an unguarded perimeter), it was error for the Judge to find a violation in light of the Seventh Circuit's opinion in Anning-Johnson Co. v. O.S.H.R.C. and Brennan, 516 F.2d 1081 (7th Cir. [*2] 1975). Finally, respondent objects to the Judge's findings regarding its safety policies generally and specifically its asserted practice of having journeyman electricians conduct safety inspections before commencing work.
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n1 On December 15, 1975, the instant case and Zwicker Electric Co., Inc., No. 11771 were consolidated for purposes of review. A closer review of the two cases reveals, however, that factual complexities in the two cases warrant separate decisions even though there are legal issues common to both cases. Accordingly, for decisional purposes we sever these cases pursuant to 29 CFR $2200.10.
n2 In addition to the three basis exceptions noted in its petition, respondent asserted numerous exceptions to certain findings and conclusion of the Judge. We will not address these exceptions upon review. As will be discussed below, it is necessary to remand this case for further proceedings before Judge Ditore. Inasmuch as a majority of these additional exceptions relate to matters to be decided upon remand, it is inappropriate to address them at this time. When this case was directed for review, submissions were specifically limited to those issues raised in respondent's petition for review. Nevertheless, in his brief on review, complainant argues that the Judge erred in refusing to find a repeated violation of the standard. The Judge's ruling on this issue was not excepted to in respondent's petition and is, therefore, not before us. Accordingly, we will not address its merits.
n3 $1926.500 Guardrails, handrails, and covers.
* * * t(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)(f) of this section, on all open sides, except where there is entrance to a ramp, statrway, 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.
[*3]
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The two major contentions of respondent have been addressed by the Commission in decisions issued subsequent to Judge Ditore's decision. In Gilles & Cotting, Inc., 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976), we rejected a rule of law that would require proof of actual employee exposure to a hazard before a duty was established under section 5(a) of the Act. Rather we held that the rule to be applied is one of access based upon reasonable foreseeability or predictability. Gilles & Cotting should be applied in the instant case. Although the Judge applied a test of employee exposure predicated upon access, his opinion does not deal sufficiently with the question of access in terms of employees' movements about the fifth floor in relation to the location of the hazard. Such an analysis is required under Gilles & Cotting.
Here, two of respondent's employees were observed on the fifth floor of a building under construction. There was no guarding on the perimeter of the northeast corner of the floor. The employees were not on the floor to perform their job of marking [*4] the floor to indicate the placement of electrical conduits. Rather, they were there for two to three minutes in order to determine whether the floor was ready and safe for work to be performed at a later time. The Judge does not examine the nature and extent of this inspection. Additional findings of fact concerning the employees' presence on the floor are necessary in order to determine whether a duty to protect them under the standard exists. It is therefore appropriate that this case be remanded to the Judge for additional findings of fact.
There is an unresolved question concerning where on the fifth floor the two employees were located when observed by the compliance officer. At the hearing there was conflicting testimony as to whether the employees were 3 feet or 25 feet from the unguarded perimeter when observed by the compliance officer. Judge Ditore, however, regarded the resolution of this conflict as immaterial because in either case the employees had "access to the danger zone." But the resolution of the conflict may obviate the need for even addressing the question of access inasmuch as a distance of 3 feet from a perimeter may be considered actual exposure to the [*5] hazard of falling. Also, this conflict in testimony should be resolved in order to determine whether employees had "access" to the unguarded perimeter under Gilles & Cotting.
We, therefore, remand the case to Judge Ditore with instructions that he reconsider the exposure issue in light of our opinion in Gilles & Cotting and resolve the conflict in testimony as to the employees' position on the fifth floor.
In Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976) and Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976), we addressed at length the question of employer liability at multiemployer construction sites. We held that an employer could be held liable if its employees were exposed to a hazardous condition even though the employer neither created nor controlled the condition. These cases also announced certain affirmative defenses available to the cited employer. Inasmuch as these defenses were enunciated after the hearing in this matter, upon remand respondent shall be allowed to submit further evidence bearing upon the defenses.
Respondent's final contention involves statements [*6] by Judge Ditore concerning its overall safety program and, in particular, its asserted practice of placing upon its nonsupervisory employees the responsibility of inspecting floors for safety. It is argued that the adequacy of respondent's safety program was neither at issue nor fully litigated. We find no merit in respondent's claim that its safety policies were not in issue. Indeed, counsel for respondent placed respondent's safety policies in issue during direct examination of one of its witnesses when the witness was questioned regarding respondent's weekly safety meetings. In any event, we note that respondent's safety policies insofar as they relate to supervision of its employees were relevant to the issue of whether respondent, with the exercise of reasonable diligence, could have known that its employees would take it upon themselves to go to the fifth floor in order to determine whether the floor was safe and ready to be worked upon. Inasmuch as any evidence concerning the reasons for respondent's employees' presence on the fifth floor is relevant to the issues to be decided on remand and may require the receipt of additional evidence, it is inappropriate at this time [*7] to rule upon respondent's exceptions to the Judge's discussion of its safety policies.
It is, therefore, ORDERED that this case be remanded to the Judge for further proceedings consistent with this opinion.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
A remand of this case is both unnecessary and unwarranted. The citation should be vacated forthwith because the evidence establishes that respondent was not responsible for the alleged violation.
The parties have stipulated that respondent neither controlled the area in question nor had the responsibility for placing perimeter guards at the jobsite. Moreover, the record reveals that union restraints effectively precluded respondent, an electrical subcontractor, from erecting any guardrails whatsoever. Therefore, the citation should be vacated because respondent did not create or cause or otherwise have responsibility for the alleged violative condition. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975); Secretary v. Hayden Electric Services, Inc., OSAHRC Docket Nos. 4034 & 4147, July 28, 1976 (dissenting opinion).
The sound rationale of Anning-Johnson addresses itself to the realities of divisional responsibility [*8] at a multi-employer worksite. Unfortunately, my colleagues have failed to benefit from the wisdom of that decision. To the contrary, they have fashioned totally unascertainable standards, in the guise of affirmative defenses, that render it impossible for an employer to determine what is expected of him - much less sustain a burden of proof. n4
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n4 My views on this matter are set forth in some detail in my dissenting opinions in Secretary v. Truland-Elliot, A Joint Venture, OSAHRC Docket No. 11259, July 21, 1976; Secretary v. Grossman Steel and Aluminum Corporation, OSAHRC Docket No. 12775, May 12, 1976; Secretary v. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976.
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The basis for the Circuit Court's holding in Anning-Johnson was that only the employer who is primarily at fault should be held liable, In that regard, the Court wisely stated:
"We fail to see how requiring several different employers to place a proper guard rail . . . along the edge of opensided floors . . . fulfills [*9] the purposes of the Act any more effectively than requiring only one employer to do so."
516 F.2d at 1089. Adherence to that sage observation would avoid the ridiculous consequences which result from the remand of this case. Obviously, the taxpayer will never understand why thousands of additional dollars in governmental funds are being expended in an attempt to extract a $250 penalty from an employer who isn't even responsible for the alleged violation.