CHARLES P. BLOUIN, INC.

OSHRC Docket No. 13595

Occupational Safety and Health Review Commission

December 20, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert Ross, Regional Solicitor

Charles A. Balzarini, Vice President, Charles P. Blouin, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

A decision of Administrative Law Judge David J. Knight is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq [hereinafter "the Act"]. In that decision, Judge Knight vacated a citation issued to respondent, Charles P. Blouin, Inc., that alleged a nonserious violation of section 5(a)(2) of the Act n1 for failure to comply with the construction safety standard published at 29 CFR 1926.500(e)(1)(iii). n2 A penalty of $35 was proposed by the Secretary. The parties declined a hearing and stipulated to the facts.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The citation also contained an item that alleged a failure to comply with 29 CFR 1926.450(a)(2). This item was not contested and became a final order of the Commission pursuant to section 10(a) of the Act.

n2 The requirement of the standard is:

1926.500 Guardrails, handrails, and covers.

* * *

(e) Stairway railings and guards.

(1) Every flight or 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:

* * *

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

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

At the time of inspector, respondent was engaged as a sheet-metal subcontractor at a multi-employer construction worksite in Boston, Massachusetts. Approximately nine of respondent's employees were installing ventilation duct work. The general contractor had installed four stairways with more than four risers that were less than 44 inches wide. The north and south stairways between the second and third and between the third and fourth levels that were used by respondent's employees lacked railings on both sides. Respondent was cited for exposing its employees to a possible falling hazard while using either the north or south stairway.

Judge Knight vacated the citation. He held that under the Seventh Circuit's decision in Anning-Johnson Company v. O.S.H.R.C., 516 F.2d 1081 (1975) a subcontractor cannot be found liable under the Act for nonserious violations which it neither created nor controlled.

Complainant petitioned for discretionary review. The petition incorporated by reference the complainant's brief to the Administrative Law Judge. Complainant urged that the Seventh Circuit's Anning-Johnson [*3] should not be followed. He argued that the Judge erred in holding that a subcontractor at a multi-employer construction site may not be liable for nonserious violations of safety standards if it neither created nor controlled the violative conditions. Complainant's theory is that respondent's liability arose when its employees were exposed to a nonserious violation.

Commissioner Barnako granted complainant's petition for discretionary review to determine whether the Administrative Law Judge:

(a) Properly vacated the citation in reliance upon the Seventh Circuit's decision in Anning-Johnson Company v. OSHRC, 516 F.2d 1081 (1975);

(b) Properly concluded that complainant failed to meet his burden of proof in establishing a violation of 5(a)(2) by relying solely on the exposure of a noncreating, noncontrolling subcontractor's employees.

There is no question that a hazard existed and that respondent's employees were exposed to the hazard. The only issue is whether respondent is relieved of liability because it did not create the hazard or exercise control over the hazardous condition.

Subsequent to Judge Knight's decision, the Commission issued its decisions in Anning-Johnson [*4] Company, 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 and 4409, 1976), Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1175-76 CCH OSHD para. 20,691 (No. 12775, 1976) declining to follow in all respects the Seveth Circuit's decision. See also, Data Electric Company, Inc., 77 OSAHRC 28/C14, 5 BNA OSHC 1077, 1977-78 CCH OSHD para. 21,593 (No. 13122, 1977), and Mayfair Construction Company, 5 BNA OSHC 1877, CCH OSHD para. 22,214 (No. 2171, September 6, 1977). Under these decisions, it was held that where the usual elements of employer liability had been shown, a subcontractor on a multi-employer construction site is responsible for violations to which its employees are exposed, unless the subcontractor can show as an affirmative defense that it neither created nor controlled the hazard, and had taken realistic measures as an alternative to literal compliance with the standard to protect its employees from the hazard involved.

The Secretary has established a prima facie case. The north and south stairways were without the required handrailings, therefore a fall hazard was present. Respondent's employees used [*5] these stairways in the course of their work and were exposed to the hazard. There is no evidence of any protective measures taken by respondent to reduce the hazard. We conclude that respondent had at least constructive knowledge of the hazard because the violative conditions were easily discoverable. Therefore on the present record respondent has failed to establish an affirmative defense. Because however the hearing stage of this litigation antedated the Anning-Johnson and Grossman decisions, we will afford respondent an opportunity to make an affirmative defense and to present additional evidence in support thereof.

We hold that respondent was in violation of the Act for failure to comply with 29 CFR 1926.500(e)(1)(iii). The citation and the proposed penalty of $35 is affirmed unless within ten (10) days from the date of this decision respondent requests further proceedings consistent with this decision.

It is so ORDERED.