DATA ELECTRIC COMPANY, INC.

OSHRC Docket No. 13122

Occupational Safety and Health Review Commission

March 7, 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

Robert L. Ellis, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

A decision of Judge Richard De Benedetto is before the full Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., [hereinafter "the Act"] following the granting by me of petitions for discretionary review on specific issues filed separately by the Secretary of Labor and Data Electric Co., Inc. On his own motion, Commissioner Moran also filed a general order for review. Following inspections under the Act on the tenth and fourteenth days of April 1975, respondent was issued two citations alleging violation of section 5(a)(2) n1 of the Act. The first citation listed three violations, alleging that respondent had failed to comply with 29 CFR 1926.500(e)(1)(ii) [hereinafter referred to as item 1], 29 CFR 1926.500(e)(1)(iii) n2 [hereinafter referred to as item 2], and 29 CFR 1903.2(a) n3 [hereinafter referred to as item 3]. The second citation alleged [*2] that respondent committed a serious violation by failing to comply with 29 CFR 1926.500(d)(1). n4 Judge De Benedetto affirmed the citation for item 1 and assessed a penalty of $25; he vacated item 2; and he concluded that item 3 had become a final order not subject to review. The Judge also affirmed the second citation, and assessed a $400 penalty.

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n1 Section 5(a) Each employer

(2) shall comply with occupational safety and health standards promulgated under this Act.

n2 1926.500(e)(1)(ii) and (iii) provide for the following safety measures:

(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 as specified below, the width of the stair to be measured clear of all obstructions except handrails:

* * *

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

(iii) On stairways less than 44 inches wide having both sides open, one stair railing on sech side.

* * *

n3 1903.2(a) provides in pertinent part that:

Each employer shall post and keep posted notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act . . . . Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted . . . .

n4 1926.500(d)(1) provides:

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.

[*3]

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In its petition, respondent employer excepted to the affirmance of the alleged violations of 29 CFR 1926.500(d)(1) and (e); viz. unguarded stairways and unguarded perimeter on opensided platforms. The exceptions were based upon an asserted misreading by the Judge of Anning-Johnson Co. v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975) and Brennan v. O.S.H.R.C. and Underhill Construction Corp., 513 F.2d 1032 (2d Cir. 1975).

On the other hand, the Secretary in his petition took exception to the vacation of item 2 alleging a violation of 29 CFR 1926.500(e)(iii) and the penalty proposed therefor on the ground that Anning-Johnson v. O.S.H.R.C., supra, was wrongly decided.

I.

In his brief subsequently filed with the Commission, the Secretary also contends that the Judge erroneously concluded that item 3 had become a final order of the Commission pursuant to section 10(a) of the Act because respondent had failed to file a timely notice of contest with respect to the item. In light of the policy statement published in the Federal Register on December 3, 1976 (41 Fed. Reg. 53015) concerning [*4] cases wherein a general order for review has been issued, we shall consider the issue.

The controlling principles are settled. Notices of contest, especially when filed by an employer without the aid of an attorney, will be liberally interpreted. Eastern Knitting Mills, Inc., BNA 1 OSHC 1677, CCH 1973-74 OSHD para. 17,691 (No. 2019, 1974); The Chesapeake and Ohio Ry. Co., BNA 3 OSHC 1762, CCH 1975-76 para. 20,186 (No. 10334, 1975).

In this case, respondent received from the Secretary, on or about April 22, 1975, a document entitled AMENDED NOTIFICATION OF PROPOSED PENALTY in which all alleged violations were specified. On April 25, 1975, respondent pro se submitted a notice of contest stating: "We, herewith, contest your amended notification of proposed penalty dated April 22, 1975." Respondent had not filed a notice of contest prior to April 25. The notice admittedly is ambiguous on the facts of this case. The Secretary apparently construed the notice as a general contest, for his complaint realleged all of the violations. Respondent's answer was also a general denial. Finally, all ambiguity should have been eliminated at trial when respondent, through its [*5] attorney, specifically denied that any required poster was not posted when the Secretary sought an admission to that effect. Therefore, we find that item 3 is subject to review. n5

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n5 See Turnbull Millwork Company, BNA 3 OSHC 1781, CCH 1975-76 OSHD para. 20,221 (No. 7413, 1975).

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The citation of item 3 is affirmed. At hearing, the compliance officer gave unrebutted testimony that he and respondent's foreman searched respondent's on-site office and found other posted notices addressed primarily to respondent's employees but did not find the poster required by 29 CFR 1903.2(a). But we assess no penalty. We accept the Secretary's proposal in this regard.

II.

Respondent, an electrical subcontractor, was one of several subcontractors employed in the construction of a municipal services building in Maspeth, New York. Its contractual duties were limited to the preparation and installation of electric wiring and fixtures throughout the building. In the performance of these duties, respondent's employees used [*6] n6 three stairways. n7 One stairway, which was the location of the hazard referred to in item 1, led from the basement to the first-floor level of the building. It abutted a wall on one side, and was unprotected by a guard railing on the open side. A second stairway extending between the basement and first-floor levels was properly guarded by standard railings. The third stairway, which was the location of the hazard referred to in item 2, was the only stairway that connected the basement to the mezzanine and the mezzanine to the first level of the building. This stairway was unprotected by a guard railing on both open sides. Three of respondent's employees also were observed and photographed working within one foot of the edge of the perimeter on the floors of levels two and three of the building. No perimeter railings or toeboards had been installed. The distance between the ground and second-level floor varied from 10 to 18 feet, and the distance between the ground the third level floor varied from 15 to 26 feet. Because the compliance officer was of the opinion that a fall from either level could result in death or serious physical harm, the violation was characterized [*7] as "serious" for penalty purposes.

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n6 The compliance officer witnessed respondent's employees ascending and descending the stairs and was told by respondent's foreman that all three stairways were freely used.

n7 All stairways consisted of two sets of stairs, each set consisting of more than four risers and measuring 43-inches wide.

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Respondent did not create the hazards specified in the citations. Control of the general work environment and contractual responsibility for safely maintaining the worksite was assumed by the general contractor. n8 Contractual and craft jurisdictional restrictions prohibited respondent from performing the work necessary to eliminate the cited hazards. n9 Before inspection of the worksite, however, respondent officially informed the Chief Resident Engineer of the City of New York that the general contractor had failed to eliminate the hazardous conditions. n10 Respondent also requested of the general contractor that perimeter railings be installed. n11 Respondent's president, Sidney Gold, [*8] testified that weekly meetings were held at the worksite during which employees were warned to avoid dangerous situations, though it was not specified at the hearing which particular situations were mentioned.

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n8 The general contractor also controlled the location of respondent's employees' daily work. Note, however, that an employer's statutory duty to protect the safety and health of its employees cannot be delegated to others by contractual arrangements. R.H. Bishop, BNA 1 OSHC 1767. CCH 1973-74 OSHD para. 17,930 (No. 637, 1974).

n9 See Anning-Johnson Co., BNA 4 OSHC 1193, 1198 n.13, CCH 1975-76 OSHD para. 20,690 (No. 4409, 1976).

n10 Respondent mailed a letter dated January 16, 1975, so informing the Engineer. Respondent's president gave unrebutted testimony that he complained about the hazards at trade meetings held approximately twice monthly.

n11 Respondent complained in a letter dated January 16, 1975.

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When Judge De Benedetto authored his opinion, there was no guidance in our precedent comparable [*9] to Anning-Johnson Co. v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975), and Brennan v. O.S.H.R.C. and Underhill Construction Corp., 513 F.2d 1032 (2d Cir. 1975), for determining the liability of subcontractors whose employees had been exposed to hazards that were created and controlled by other employers at multiple-employer worksites. The Judge followed these cases on the following principles: that subcontractors are not liable for failure to comply with the Act when their employees are exposed to a hazard amounting to nonserious violations neither created nor controlled by the subcontractor; and that subcontractors are liable when their employees are exposed to a hazard that was controlled by the subcontractor. Accordingly, the Judge affirmed item 1 because respondent's employees' exposure n12 to the hazard could have been eliminated through required use of the available, properly guarded stairway. Item 2 was vacated because the Judge concluded it fell squarely within the ambit of the Seventh Circuit's Anning-Johnson decision. Finally, the serious citation was affirmed because the Judge held that Anning-Johnson did not apply to "serious" violations.

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n12 The Judge raised a distinction between exposure to and access to a hazard. This distinction is no longer significant. See Gilles & Cotting, Inc., BNA 3 OSHC 2002 1975-76 CCH OSHD para. 20,448 (No. 504, 1976).

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Subsequent to the courts' decisions, we reviewed the liability problems created by multiple-employer worksites in Anning-Johnson Co., BNA 4 OSHC 1193, CCH 1975-76 para. 20,690 (No. 4409, 1976) and Grossman Steel and Aluminum Corp., BNA 4 OSHC 1185, CCH 1975-76 OSHD para. 20,691 (No. 12775, 1976). While we found ourselves in general agreement with the principles enunciated in the opinions of the Second and Seventh Circuit Courts of Appeals, we adopted a slightly different approach. We held that section 5(a)(2) of the Act not only may require literal compliance with a standard, but also creates a qualified duty for noncreating, noncontrolling construction contractors to

. . . do what is 'realistic' under the circumstances to protect its employees from the hazard to which a particular standard is [*11] addressed even though literal compliance with the standard may be unrealistic [footnote omitted].

Anning-Johnson Company, BNA 4 OSHC 1199, CCH 1975-76 OSHD at 24,784. The duty is imposed whether a violation is characterized as "serious" or nonserious for penalty purposes. Once the Secretary of Labor establishes a prima facie case by proving access by employees to the hazard contemplated by the standard, certain affirmative defenses are permitted. A cited subcontractor may demonstrate that it neither created nor controlled the condition to a degree that it could realistically correct the condition in the manner contemplated by the standard; and either that the employees who were exposed or had access to the hazard were protected by means of realistic alternative measures, or that the subcontractor did nor have, nor with the exercise of reasonable diligence could not have had notice that the condition was hazardous. n12a

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n12a Subsequent to the Commission's decisions in Anning-Johnson and Grossman Steel, a majority of the Commission concluded the knowledge element stated in section 17(k) of the Act is implicit in section 5(a)(2), and that the Secretary bore the burden of proof on this point. Green Construction Co. and Massman Construction Co., A Joint Venture, BNA 4 OSHC 1808, CCH 1976-77 OSHD para. 21,235 (No. 5356, 1976); Scheel Construction, Inc., BNA 4 OSHC 1824, CCH 1976-77 OSHD para. 21,263 (No. 8687, 1976). Thus, under Commission precedent, the Secretary must now show actual or constructive knowledge of the condition that violates a standard, while the construction employer may affirmatively show that he did not know, and could not be reasonably expected to have known, that the condition was hazardous.

[*12]

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The evidence in the instant case, which is largely restated by the Judge, shows that the standards were breached, that respondent knew that standards were breached, that respondent's employees were exposed to the hazards, and that respondent neither created nor controlled the hazards. The evidence also indicates that a properly protected stairway was available as an alternative to the stairway referred to in item 1. The evidence indicates, however, that respondent once requested the general contractor to erect perimeter railings. It further shows that respondent complained about the absence of these railings to New York City public officials.

Viewing this evidence in light of the aforementioned principles, we affirm the citation for item 1 because the existence of a properly protected stairway provided a realistic alternative measure by which respondent's employees could have accomplished their job and been protected against exposure to the hazard. We affirm the vacation of the citation for item 2 because no realistic alternative measure taken by respondent could have avoided use of the stairway [*13] to the mezzanine level and thereby avoided exposure to the hazard that was not characterized as "serious." n13 Finally, we affirm citation 2 as a "serious" violation. While respondent did request that the general contractor erect the railings, and complained to the City of New York, which was the owner of the building and the general contractor's employer, we cannot overlook the fact that three of respondent's employees, several months after making these complaints, worked within one foot of the edge of a floor which was as far as 26 feet above the ground. Moreover, respondent did not adopt any measures to protect its employees against a fall. n14

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n13 See n.16, Anning-Johnson Co., BNA 4 OSHC 1193.

n14 Id., n.23.

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We feel constrained, however, to reduce respondent's penalty for citation 2 to $200. In determining the propriety of a penalty, section 17(j) of the Act requires consideration of the following criteria: size of the business of the employer being charged, gravity of the violation, good faith of [*14] the employer, and history of previous violations. The criteria are not necessarily of equal weight. Nacirema Operating Company, Inc., BNA 1 OSHC 1001, CCH 1972-73 OSHD para. 15,032 (No. 4, 1972). According to the testimony of the compliance officer, the respondent employed less than 100 workers, only three of whom were observed actually exposed to the hazard. Respondent showed good faith both by requesting installation of a perimeter railing by the general contractor and by informing the City of New York about the absence of the railings before the inspection. Respondent also informed the Department of Public Health of the City of New York about being cited for violations by the Occupational Safety and Health Agency and threatened to erect the necessary railings at the general contractor's expense or discontinue work until the railings were installed. Finally, respondent has not been cited previously for a safety hazard.

Because the Judge decided this case before the Review Commission's decisions in Anning-Johnson Co., supra, and Grossman Steel and Aluminum Corp., supra, and because of the likelihood that the project involved has been completed, we will remand [*15] this case only if respondent wishes to present additional evidence concerning the possible defenses listed above. In absence of a motion requesting a remand for that purpose within ten (10) days from the issuance of this decision, this decision is final.

Accordingly, it is ORDERED that the citation 1 item 1 and the penalty assessed by Judge De Benedetto therefor be affirmed, that citation one item 2 be vacated, that citation one item 3 be affirmed without assessment of a penalty, and that citation 2 be affirmed and a penalty of $200 be assessed therefor, unless respondent moves within ten (10) days from the issuance of this decision that the case be remanded for taking additional evidence on the defenses outlined in this decision.