E. M. DUGGAN, INC.
OSHRC Docket No. 14252
Occupational Safety and Health Review Commission
April 3, 1978
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Regional Solicitor
William E. Duggan, President, E. M. Duggan, Inc., for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
The case is before the Commission pursuant to section 12(j) of the Occupational Safety & Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"). On April 14, 1976, the Judge's decision was issued in this case vacating a single nonserious citation alleging that respondent failed to comply with the standard at 29 CFR § 1926.500(e)(1)(ii). n1 A penalty of $75 was proposed for the alleged violation. The case was directed for review by Chairman Cleary and former Commissioner Moran. Chairman Cleary's direction for review granted the petition for discretionary review filed by the Secretary of Labor and specified the following issue:
Whether the Administrative Law Judge erred in vacating the alleged violation of 29 CFR § 1926.500(e)(1)(ii) and the proposed penalty therefor by relying on Anning-Johnson Co. v. United States Occupational Safety & Health Review Commission, 517 F.2d 1091 (7th Cir. 1975).
The direction for review by former [*2] Commissioner Moran did not specify the issues on review.
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n1 The standard reads as follows:
(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;
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Neither party filed a brief on review. The Secretary filed a letter requesting affirmance of the citation and proposed penalty on the basis of the Commission 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).
The facts of the case are stipulated. Jurisdiction is undisputed. Respondent is a plumbing and heating contractor which was engaged in the installation [*3] of plumbing and sprinkler systems at a multi-employer construction site. At nine locations at the jobsite, there were flights of stairs, less than forty-four inches wide and having four or more risers. Each flight had one unprotected side. The potential fall distance was four to eight feet. Respondent's twelve employees at the worksite had occasion to regularly use the stairs.
The facts clearly establish noncompliance with the terms of the standard. Further, the regular use of the stairways by respondent's employees is a factual predicate to establish that respondent's employees were exposed to the fall hazard at which the cited standard is directed.
Respondent has not argued that the stairways complied with the terms of the cited standard. Rather, it has been respondent's position from the outset that it did not create the violative conditions and that it was not within its contractual rights or obligations to correct the railing deficiency. Respondent asserts that the citation should, therefore, be vacated on the basis of the reasoning in Anning-Johnson Co. v. O.S.H.R.C., 517 F.2d 1091 (7th Cir. 1975).
The Judge, in essence, agreed with respondent's position in his [*4] decision. He concluded that the Secretary "has failed to prove that respondent could have complied with the statutory mandate . . ., and that it created, caused or was responsible for the violative condition described in the stipulated facts." On review, the Secretary has not disputed the Judge's findings that respondent neither created the hazardous conditions nor was able to effect compliance as specified by the terms of the standard. The Judge's decision was issued before the Commission decisions in Anning-Johnson Co., supra, and Grossman Steel & Aluminum Co., supra.
In factual situations such as are present here, the Commission has declined to follow all aspects of the court's decision in Anning-Johnson Co. v. O.S.H.R.C., supra. We have held that where the usual criteria for establishing employer liability have been shown, a non-creating, non-controlling subcontractor on a multi-employer construction site, who knew or reasonably should have known of the violative conditions, can defend by showing that it took realistic steps, as an alternative to literal compliance with the standard, to protect its employees. Anning-Johnson Co., supra. Grossman [*5] Steel & Aluminum Corp., supra. The defense has not been established on the record in this case. It has, however, been our practice in cases tried before the Anning-Johnson and Grossman Steel decisions were issued to afford the subcontractor an opportunity to reopen the record to present evidence relevant to the defense. See, e.g., Truland Corp., 77 OSAHRC 202/E8, 6 BNA OSHC 1123, 1977-78 CCH OSHD para. 22,359 (No. 12705, 1977). Therefore, a conditional order will be entered here affirming the citation, unless respondent requests a further hearing, as set out below.
The sole remaining issue is the assessment of an appropriate penalty. The Secretary proposed a penalty in the amount of $75. Respondent is a relatively small business. The gravity of the violation was low. As indicated, the potential fall distance was four to eight feet. Applying the factors in section 17(j) of the Act, we assess no penalty.
Accordingly, the Judge's decision is reversed. A violation for failure to comply with the standard at 29 CFR § 1926.500(e)(1)(ii) is affirmed unless respondent requests a further hearing within ten days of the receipt of this decision. In such event, [*6] the order affirming the citation will be withdrawn and the case remanded for further proceedings consistent with this opinion. So ORDERED.