OSHRC Docket No. 14587

Occupational Safety and Health Review Commission

October 27, 1977


Before CLEARY, Chairman; and BARNAKO, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Ira J. Smotherman, Jr., for the employer




BARNAKO, Commissioner:

A May 24, 1976 decision of Administrative Law Judge John S. Patton is before this Commission pursuant to Section 12(j) of the Occupational Safety and Health Act of 1970. n1 Three alleged nonserious electrical violations are before us for review. n2 Judge Patton found Respondent in violation of the three standards.   The issue presented is whether Respondent, a masonry contractor, is responsible for violations involving electrical wiring and equipment used at the worksite and affecting Respondent's employees.   We conclude that Respondent is responsible and therefore affirm the decision.

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n1 29 U.S.C. 651 et seq., hereinafter referred to as "the Act."

n2 The Secretary alleges that Respondent violated the standards at 29 C.F.R. 1926.401(j)(1) (failure to guard unrecessed temporary lights), 29 C.F.R. 1926.401(j)(2) (failure to equip temporary lights with heavy duty electric cords and safe connections and insulation), and 29 C.F.R. 1926.402(a)(11) (failure to protect extension cords against accidental damage as may be caused by traffic, sharp corners, or projections and pinching in doors).

Initially, Respondent received two citations.   One alleged a serious violation of the safety standard at 29 C.F.R. 1926.451(d)(10) (failure to provide guardrails, midrails, and toeboards on elevated scaffolding).   Respondent admitted that it violated the standard, but contended that the violation was nonserious in nature and that the $500 penalty proposed by the Secretary was excessive.   The Judge affirmed the citation as nonserious, and assessed a $300 penalty.

The other citation alleged seven nonserious violations.   Respondent withdrew its notice of contest as to three items, and the judge vacated a fourth.

Neither party petitioned for review of the Judge's decision.   Former Commissioner Moran directed that the Judge's decision be reviewed, but did not state specific issue(s) for adjudication.   Respondent, however, responded to the direction for review, asking that we consider the same arguments it made before the trial judge.

Consistent with our Policy Statement at 41 Fed. Reg. 53015 (Dec. 3, 1976), we will consider Respondent's exceptions to the Judge's decision.   Since the Judge granted the relief Respondent requested with respect to the serious citation, that citation is no longer in dispute.   Respondent was only aggrieved by the Judge's decision on the three nonserious electrical violations, and those items are therefore the only ones before us.


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Respondent does not contest that the violative conditions existed at the time of the inspection.   Rather, Respondent contends that, as a subcontractor, it could not abate the violations because it did not control the worksite. Respondent argues, and the record shows, that it lacked the capability to correct these electrical violations because it had no electricians in its employment and because union work rules prohibit other union craftsmen from performing electrical work.

Respondent relies on the decision in Anning-Johnson v. OSHRC, 516 F.2d 1081 (7th Cir. 1975), in which the court held that a drywall and insulation subcontractor on a multi-employer construction site setting should not be held in violation of Section 5(a)(2) of the Act for the exposure of its employees to violative conditions which the subcontractor neither created nor had the capability to correct.   However, subsequent to that decision the Commission decided Grossman Steel and Aluminum Co., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,690 (No. 12775, 1976) and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA [*3]   OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 3694, 1976).   In those cases, we declined to follow all aspects of the 7th Circuit's Anning-Johnson decision.   We held that, where the usual criteria establishing employer liability have been shown, a non-creating, non-controlling subcontractor on a multi-employer construction site can defend by showing that it took realistic steps, as an alternative to literal compliance with the standard, to protect its employees.   See also Data Electric Co., 77 OSAHRC 28/C14, 5 BNA OSHC 1077, 1977-78 CCH OSHD para. 21,593 (No. 13122, 1977).

The record does not disclose what steps, if any, Respondent took to protect its employees against the violative conditions.   Therefore, we find Respondent in violation of each of the three cited standards.   We will, however, afford Respondent an opportunity to present additional evidence bearing on the defenses announced in Grossman and Anning-Johnson, supra.

Accordingly, the Judge's decision is affirmed unless Respondent requests a further hearing within ten days after receipt of this decision.   In [*4]   such event, the case will be remanded for further proceedings.