LIMBACH COMPANY
OSHRC Docket No. 14302
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 H. Ross, Regional Solicitor
John A. Alogna, Limbach Company, for the employer
OPINION:
DECISION
BY THE COMMISSION: A decision of Review Commission Judge David J. Knight, dated August 18, 1976, is before this Commission for review pursuant to 29 U.S.C. § 661(i). In that decision Judge Knight reversed an earlier decision of June 3, 1976, in which he granted the respondent's motion for a summary judgment. The August 18 decision affirmed a non-serious violation of 29 C.F.R. § 1926.500(e)(1)(ii) because the respondent's employees had used a stairway which had no railings on its open side. The Judge assessed no penalty.
The respondent, a mechanical subcontractor on a multi-employer construction site, was engaged in installing plumbing, heating ventilation, air conditioning, sub-surface drainage, and irrigation system work, when it was cited for a repeated-nonserious violation of the aforementioned standard. The evidence shows that the respondent did not create or control the hazard or have the responsibility for constructing the rails. However, its employees were exposed to the [*2] hazard, and the respondent failed to establish that it did anything to protect them during a period of about one week in which the hazard existed.
Judge Knight's decision of June 3, 1976, granted the respondent's motion for summary judgment on the basis of the Court of Appeals' decision in Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975). Shortly thereafter, the complainant moved for reconsideration, citing Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976); and Otis Elevator Co., 76 OSAHRC 57/E5, 4 BNA OSHC 1219, 1975-76 CCH OSHD para. 20,693 (No. 8468, 1976), which were issued about the same time as the Judge's decision. The Judge, on reconsideration, after noting that neither party requested a further hearing to elicit factual matter and that none appeared necessary, reversed his original decision stating that he was bound to follow Grossman and Otis.
The respondent's essential contentions on review are as follows:
(1) The Commission should follow the Court of Appeals' decision in Anning-Johnson Co. v. OSHRC, supra, rather than its own precedents on contractor-subcontractor [*3] liability.
(2) Commission Judges should follow a Court of Appeals' decision, rather than Commission precedent, when the Court of Appeals is the highest court to have spoken on an issue.
(3) The respondent was cited under an invalid rule because the Secretary of Labor's rule for citing any employer whose employees were exposed to a hazard was not promulgated in accordance with the rulemaking procedures provided in 29 U.S.C. § § 655(b)(2) and 657(g)(2) and the Administrative Procedure Act, 5 U.S.C. § 553.
(4) The Commission acted in a prosecutorial manner by specifying the rules in Otis Elevator Co., supra; Grossman Steel & Aluminum Corp., supra; and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 3694, 1976), before the Secretary had promulgated such rules in accordance with the rulemaking procedures provided in 29 U.S.C. § § 655(b)(2) and 657(g)(2) and the Administrative Procedure Act, supra. n1
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n1 The respondent also contends that the violation should not be classified repeated. Since the Judge affirmed only a nonserious violation and the complainant has not taken issue with this disposition, the Commission will not address the question. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).
[*4]
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For reasons that follow, the Commission rejects the respondent's contentions and affirms the Judge's decision.
The respondent's first two contentions have been rejected after careful consideration by the Commission in its decisions in Grossman Steel & Aluminum Corp., supra; Otis Elevator Co., supra; Anning-Johnson Co., supra. The Commission adheres to those decisions. The respondent's remaining contentions also lack merit.
The respondent was cited under the policy contained in paragraph Flb of Chapter X of the Secretary's Field Operations Manual (BNA OSHR, Reference File Tab 77:3506-7; 1 CCH Employment Safety and Health Guide, para. 4380.6). That policy provides in substance that citations will be issued only against employers where their own employees were exposed or potentially exposed to hazards, that such employers may be cited even if they did not create the hazard, and that an employer will not be cited if his employees were not exposed or potentially exposed to a hazard even if that employer created the hazard. Respondent's basic objection to this policy is that it [*5] was not published as a proposed rule in the Federal Register and that the public was not afforded the opportunity to participate in the formulation of the rule.
The respondent's argument assumes that the policy is a standard or a substantive rule. It is neither. The policy merely provides guidelines for the issuance of citations. It does not purport to, nor does it in fact or law, create liability on an employer. An employer cited under these guidelines may contest the citation and obtain an independent legal determination of its liability from this Commission. Grossman Steel and Aluminum Corp., supra; Anning-Johnson Co., supra. The guidelines are
. . . plainly for internal application to promote efficiency and not to create an administrative straightjacket. They do not have the force and effect of law, nor do they accord important procedural or substantive rights to individuals. n2
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n2 FMC Corporation, 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1710, 1977-78 CCH OSHD para. 22,060 (No. 13155, 1977).
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In specifying his policy, the Secretary was not required to follow the rulemaking procedures cited by the respondent. Section 655(b)(2) of Title 29, United States Code, establishes rulemaking procedures or promulgating occupational safety and health standards. The Secretary's policy is not such a standard. See Underhill Construction Corp., 75 OSAHRC 32/B8, 2 BNA OSHC 1556, 1974-75 CCH OSHD para. 19,276 (No. 1307, 1975), petition for review denied, 526 F.2d 53 (2d Cir. 1975); 29 U.S.C. § 652(8). Moreover, rulemaking procedures are not required by 29 U.S.C. § 657(g)(2) as it states:
The Secretary . . . shall . . . prescribe such rules and regulations as he may deem necessary to carry out [his] responsibilities under this chapter, including rules and regulations dealing with the inspection of an employer's establishment.
Furthermore, the Administrative Procedure Act was not violated since it specifically excludes from notice requirements
. . . interpretive rules, general statements of policy or rules of agency organization, procedure, or practice. n3
The Secretary's guidelines are no more than general statements of policy for the guidance of his inspectors and, [*7] as such, fall within this exclusion.
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n3 5 U.S.C. § 553(b)(A).
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The respondent also argues that the commission acted in a prosecutorial manner in its decisions in Grossman, Otis, and Anning-Johnson. This argument is premised on a contemplated change in the Secretary's policy for issuing citations. On April 27, 1976, the Secretary invited public comment on "Citation Guidelines in Multi-Employer Worksites." n4 41 Fed. Reg. 17,639-40. In those guidelines, the Secretary indicated he proposed to cite employers who create or cause hazards which expose employees of any contractor or subcontractor to danger, to cite employers who have the ability to abate a hazard regardless of whether he creates the hazard, and to cite employers who do not create or cause readily apparent hazards if his employees are exposed thereto and he does not take certain specified actions to preclude their exposure. The respondent contends, in effect, that it was improper for the Commission to adopt substantially these same rules before [*8] the Secretary had promulgated them.
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n4 Apparently, the Secretary thought it was desireable to obtain public comment, but as previously indicated, he was not required to do so.
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The Commission rejects the respondent's contention. The rules announced in the Commission's decisions in Grossman, Otis, and Anning-Johnson, were adopted as a valid exercise of the Commission's adjudicatory function in determining liability for safety and health violations. See Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974); Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976).
In affirming the citation, Judge Knight expressed concern over the retroactive application of the Commission's decisions in Grossman, Otis and Anning-Johnson. He found that such application would be counterproductive and would appear to violate legal and equitable principles by enforcing a "rule . . . which the Secretary of Labor has under consideration in a rulemaking proceeding." His concern is not [*9] well-founded. The Commission has not created a new theory of liability for employers. Instead, it has created a defense that was not previously available to employers. Therefore, there is no prejudice to the respondent in the retroactive application of the Commission's decisions. Anastasi Brothers Corp., 77 OSAHRC 141/C8, 5 BNA OSHC 1634, 1977-78 CCH OSHD para. 21,966 (No. 76-853, 1977).
In those cases where respondents were not aware at the time of trial of the affirmative defense created by the Commission, it has been the practice of the Commission to afford those respondents an opportunity to present facts pertinent to the defense. Such action is not required in this case. The respondent was aware of the defense when the Judge reconsidered the case, but did not request the opportunity to present additional evidence to the Judge. Furthermore, the respondent has not requested such an opportunity on review. The Commission also observes that the respondent stipulated that it had supervisors on the job on a day to day basis but did not request the general contractor to erect the railings at any time. [*10]
Accordingly, the Judge's decision is affirmed.