HOWARD P. FOLEY COMPANY
OSHRC Docket No. 14634
Occupational Safety and Health Review Commission
January 27, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall H. Harris, Reg. Sol., USDOL
Ira J. Smotherman, Jr., for the employer
OPINION:
DECISION
This case is before the Commission pursuant to sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the significance of an unreviewed Judge's decision. [*2] Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
CONCURBY: MORAN
CONCUR:
MORAN, Commissioner, Concurring:
I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.
APPENDIX A
DECISION AND ORDER
Ira J. Smotherman, Jr., for the respondent
Alan J. Davis, U.S. Department of Labor, for the complainant
Usher, Judge:
This is a proceeding initiated by the Secretary of Labor, United States Department of Labor, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.) hereinafter referred to as the Act, seeking the affirmance by the Commission of two citations for violation of Section 5(a)(2) of the Act and seeking further to have the Commission assess civil penalties totaling $860.
The citations were issued to Respondent on August 8, 1975, as the result of [*3] an August 6, 1975, inspection of a worksite maintained by Respondent at 300 Terminal Avenue, Newport News, Virginia.
One citation charges two "non-serious" violations of Section 5(a)(2) of the Act because of Respondent's alleged failure to comply with the provisions of the occupational safety standards promulgated by Complainant and codified at 29 CFR 1926.25(a) and 1926.501(f). Specifically that citation charges:
Work areas and passageways throughout job site were not kept clear of construction materials and debris such as scrap lumber with protruding nails, and other construction debris creating tripping and puncture hazards. (29 CFR 1926.25(a))
Metal stairways with hollow pan type treads being used by employees, located at the north end of the job site, were not filled to the level of the nosing with solid material. (29 CFR 1926.501(f))
The second citation charges a serious violation of Section 5(a)(2) of the Act for alleged noncompliance with the safety standard promulgated pursuant to the Act and codified at 29 CFR 1926.500(e)(1)(ii) and reads as follows:
The stairway located at the south side of the job site from which employees can fall 23 feet to the ground, is more [*4] than 4 risers high and is not provided with a standard stair railing on the open side.
The stairway located at the north side of the job site from which employees can fall 18 feet to the ground, is more than 4 risers high and is not provided with a standard stair railing on the open side.
The standards promulgated by Complainant, pursuant to Section 6 of the Act, which are referred to in the citations provide:
During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures. (29 CFR 1926.25(a))
Permanent steel or other metal stairways, and landings with hollow pan-type treads that are to be filled with concrete or other materials, when used during construction, shall be filled to the level of the nosing with solid material. The requirement shall not apply during the period of actual construction of the stairways themselves. (29 CFR 1926.501(f))
Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specifled below, the width of the stair to [*5] be measured clear of all obstructions except handrails:
* * *
On stairways less than 44 inches wide having one side open, at least one stair railing on the open side; (29 CFR 500(e)(1)(ii))
* * *
Respondent filed the requisite Notice of Contest on August 22, 1975, and a Complaint and Answer followed on September 12 and October 1, respectively.
The matter was heard by the undersigned at Norfolk, Virginia, on January 15, 1976.
DISCUSSION OF THE EVIDENCE
Complainant's agent, Compliance Safety and Health Officer Dominic M. Savaltore of the Occupational Safety and Health Administration (hereinafter "OSHA") testified regarding his inspection of the aforesaid worksite, accompanied by James Von Stein, another Compliance Safety and Health Officer (hereinafter sometimes referred to as the "CSHO"), on August 6, 1975.
According to the testimony Respondent was engaged as a subcontractor for the performance of electrical work on a sewage plant for the general contractor, Adrian Construction Company (hereinafter referred to as "Adrian").
The condition which formed the basis for the alleged violation of the standard codified at 29 CFR 1926.25(a) (or the "housekeeping" violation) was described [*6] by the CSHO. He observed an accumulation of construction debris, including among other things pieces of metal conduit, between the two stairwells. He saw employees walking through this area, but none of the employees whom he observed near the debris were Respondent's employees.
Complainant adduced the testimony of Eric G. Fox, an apprentice electrician who is employed by Respondent. He was working at the jobsite at the time the inspection was conducted and was interviewed by CSHO Savaltore. Mr. Fox testified that "housekeeping around the worksite . . . was pretty sloppy." He attributed the accumulation of debris to actions of the carpenters who stripped concrete forms and left the stripping material lying where it fell. Mr. Fox "had to walk through it because it was all over the jobsite."
Both Mr. Fox and CSHO Savaltore identified a photograph (Exhibit C-2) as accurately depicting the alleged violation. Mr. Fox stated that he saw pieces of electrical conduit in the pile of debris, but he had no knowledge of how it came to be there. According to his testimony Respondent's conduit was neatly piled in a location where employees were not likely to have to walk.
Respondent's [*7] Job Foreman, Dennis Barber, testified that the scraps of electrical conduit which were used by its employees were stored in a pile on the first floor at the northeast corner of the building. He never observed Respondent's employees placing pieces of conduit outside the structure, and he opined that what is depicted in Exhibit C-2 might be electrical conduit, but it may just as well be pieces of pipe (i.e., pipe fitters' material).
The CSHO described the tripping and puncture hazard presented by the accumulated debris at the worksite.
Complainant's agent testified that he observed the metal stairway at the north end of the building. He stated that these stairs were constructed with hollow pan-type treads that were not filled to the nosing with solid material. The nosing was approximately one inch above the tread.
No employees of Respondent were seen using this stairway at the time of the inspection, according to the Compliance Officer, but he was "informed by Mr. Fox that he had used them previously." Eric G. Fox testified at the hearing that he had in fact used the stairway and considered it hazardous because "[T]hey were awkward to walk on without anything in them."
Eric Fox [*8] also discussed the fact that he and others of Respondent's employees had used the north and south stairways that were not provided with standard stair railings. He described his use of these stairs as "off and on for three months," but during part of that period of time he was not on the job at all. He had not used them for at least a month prior to the time of the inspection by the CSHO. He confirmed the Compliance Officer's testimony regarding the absence of handrails on these stairs and described in some detail the hazard presented by the lack of handrails.
Significantly, Eric Fox testified that the hazardous conditions created by the absence of handrails had been brought to the attention of Respondent's Job Foreman, Dennis Barber.
James Von Stein, an OSHA Compliance Officer, stated that he had accompanied CSHO Savaltore at the time the worksite in question was inspected and further testified that a citation was issued to the general contractor, Adrian Construction Company, charging the same violations that are here charged against Respondent. That citation (Exhibit R-1) according to the CSHO, was not contested by Adrian, and Adrian abated the violations.
Respondent's Contract [*9] Manager, John Fraysee, identified a purchase order and specifications (Exhibits R-2 and R-3) by which Respondent contracted to perform electrical work for Adrian at the Harbor Sanitation Plant, the worksite in question. The specifications or conditions of the agreement provide that the general contractor "shall furnish and maintain all equipment such as temporary stairs, ladders, ramps. . . ." (Exhibit R-3, page 1B-8)
This witness testified regarding Respondent's reasons for not undertaking the correction of the violation charged in the serious citation. Respondent's employees are exclusively electricians. Stair railings (temporary or permanent) could be installed only by carpenters or steelworkers. If Respondent's employees had attempted to perform the work of carpenters or steelworkers a jurisdictional (labor) dispute would have been created, according to the testimony.
Both the Contract Manager and the Project Manager approached the general contractor's supervisory personnel at the jobsite to urge that the hazardous conditions be corrected. The latter stated that he "stressed very strongly that something should be done." The general contractor admitted responsibility for [*10] the corrections and promised to take action. However, nothing was done to abate the hazards prior to the OSHA inspection.
Respondent's Project Manager, Carl L. Murphy, stated that Respondent's employees had used the stairs in question "for only a short period of time . . . an occasional day or so . . . [and] had not worked on this job for 30 days or more [prior to the OSHA inspection]." Respondent had, in fact, advised its employees not to use the stairs until the general contractor could be persuaded to erect the required handrails. Its employees were taken off the job in question approximately a month before the inspection and were assigned to work elsewhere because "[W]e decided there would be more opportune and safe times to work in there . . . and because [they] had more pressing work elsewhere." The "more pressing work" was located in "a safer area . . . at the time," according to Mr. Murphy.
Respondent's Job Foreman testified regarding how he and his employees stored materials, including scrap conduit, in a pile at the northeast corner on the first floor of the building. He confirmed Mr. Murphy's testimony regarding the amount of time spent by his employees at the worksite [*11] in question and described his "several" conversations with Adrian's representatives about correcting the hazardous conditions. His complaints to Adrian's representatives were initiated "the day we were required to go up to do work." The general contractor acknowledged responsibility for correcting the violations and did, in fact, abate the conditions immediately after the OSHA inspection, according to Respondent's Foreman.
EVALUATION OF THE EVIDENCE
The evidence establishes the fact that Adrian Construction Company was the prime contractor for the construction of a water pollution control plant at Newport News, Virginia, and Respondent contracted with Adrian for the electrical installation on a subcontract basis.
There was, at the time of the inspection, an accumulation of debris at the worksite, and two stairways leading from the ground floor to the upper floors each lacked standard handails on one side. Additionally, the treads of the stairs were "hollow pan-type" and were not filled with solid material to the nosing of each tread. Respondent's employees (approximately five in number) were exposed to the hazards presented by these conditions.
These facts were proven by [*12] Complainant, and Respondent has not seriously attempted to rebut the testimony by which they were established.
Likewise Complainant has adduced no evidence to rebut Respondent's assertion that it did not create the hazardous conditions and that their correction was the contractual responsibility of the prime or general contractor, Adrian Construction Company. Adrian was, in fact, cited by Complainant's agent for violations which arose out of the same conditions which gave rise to the violations charged against Respondent; Adrian did not contest that citation; and the violations were abated by Adrian.
Respondent argues that not only did it not create the hazardous conditions, but it had no control over them, that it had neither the authority to correct them, nor the means to do so, and that it did all that was possible under the circumstances to effect abatement by the general contractor. In the meantime Respondent limited its employees' exposure to the hazards. The evidence clearly establishes a factual basis for Respondent's argument. Its representatives at the jobsite did, indeed, know about and fully recognize the violative nature of the hazardous conditions. Its employees [*13] did not, however, have the expertise to correct the conditions, and the various craft unions' contracts would not have allowed them to do so. They did bring the matter to the general contractor's attention on several occasions and "stressed very strongly" the need for correction of the conditions which presented the hazards. Failing in their attempts to effect abatement, Respondent's representatives sought to limit the exposure of their employees to the hazards. They restricted the work performed by their employees to only such installation as was required before the concrete was poured on the upper floors, and this was done only to avoid a serious breach of the contract. More than a month prior to the OSHA inspection, Respondent's employees were instructed not to use the stairways in question, and the employees did not thereafter use them. The men were taken off the job and assigned elsewhere, to "a safer area," with the hope that the problem at this jobsite would be rectified before they were required to return.
These facts, taken in their entirety, clearly satisfy the criteria set forth in recent decisions by the Commission. n1
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Commissioner Cleary, speaking for the majority of the Commission in Anning-Johnson, held that a subcontractor who neither created nor controlled the hazard to which its employees were exposed at a multi-employer jobsite need only "do what is 'realistic' under the circumstances to protect its employees from the hazard."
In Grossman Chairman Barnako, with Commissioner Cleary's concurrence, laid down the "reasonable effort" rule. The subcontractor must make a reasonable effort to detect violative conditions which have been created by others and to which its employees are exposed and exert reasonable efforts to effect abatement or otherwise see that its employees are protected. Grossman stands squarely for the proposition that "it would be unduly burdensome to require particular crafts to correct violations [*15] for which they have no expertise and which have been created by other crafts."
Neither this Respondent nor its employees caused the hazardous conditions to exist. Construction of the stairways was not its responsibility and the erection of handrails and the filling of pan-type treads were not within the purview of its authority or expertise. Its employees were electricians; carpenters, pipe fitters, or steelworkers were required to make the necessary corrections.
The accumulated debris consisted for the most part of the offals of carpenters' activities, not those of electricians. n2
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n2 See Exhibit C-2. The several pieces of pipe shown have not been identified as electrical conduit, as Complainant contends. In view of Respondent's testimony, it is quite unlikely that they were debris from electrical installation.
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Respondent has clearly shown that it detected the hazards to which its employees were necessarily exposed in the performance of the contract, and it has further demonstrated that it made vigorous, albeit [*16] futile, attempts to have the general contractor correct these violative conditions. Additionally, it "[took] such other steps as the circumstances [dictated] to protect its employees," viz., the withdrawal of its employees from the worksite at the earliest possible time in the hope that its persuasive efforts to effect abatement would be successful before those employees were required under the contract to return to the job. The OSHA inspection occurred before either of these events.
A preponderance of the record evidence, taken in its entirety, establishes the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. Respondent, Howard P. Foley Company, is a corporate entity which engages in electrical contracting.
2. On August 6, 1975, Respondent maintained a place of business or worksite at 300 Terminal Avenue, Newport News, Virginia, where it employed several employees and used goods, materials and machinery which had been shipped in interstate commerce.
3. Respondent employs an average of 4,000 employees and grosses in excess of $100 million annually.
4. Respondent has exhibited a good faith attitude regarding its responsibilities toward the occupational [*17] safety and health of its employees as evidenced by its comprehensive safety program and its relatively commendable history of compliance with the provisions of the Act.
5. On August 6, 1975, there were two sets of metal stairways located at the aforesaid worksite; said stairs had more than four risers, were less than 44 inches in width, had one open side, and were not equipped with standard stair railings.
6. The stairways described in the Finding of Fact No. 5 were constructed with hollow pan-type treads which were not filled to the level of the nosing with solid material.
7. On August 6, 1975, the aforesaid worksite was not kept free of wooden forms, scrap lumber with protruding nails, and other debris.
8. The conditions described in Findings of Fact Nos. 5, 6 and 7 as Respondent's employees were exposed to those conditions to a limited extent.
9. Respondent neither caused the existence of the conditions described in Findings of Fact Nos. 5, 6 and 7, nor did it possess the authority or expertise to correct those conditions.
10. Respondent did not control the areas where the violative conditions described in Findings of Fact Nos. 5, 6 and 7 existed, and it could not "realistically" [*18] abate them.
11. Respondent made "reasonable" efforts to have the aforesaid hazards abated and took such steps as the circumstances dictated to protect its employees in light of the existence of those hazards.
CONCLUSIONS OF LAW
1. Jurisdiction of the parties and the subject matter herein is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.
2. At all times relevant hereto Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and as such was subject to the requirements of Section 5(a)(2) of the Act.
3. On August 6, 1975, Respondent did not violate the provisions of Section 5(a)(2) of the Act at the aforementioned worksite by failing to comply with the safety standards promulgated by Complainant and codified at 29 CFR 1926.25(a), 1926.501(f), and 1926.500(e)(1)(ii).
ORDER
Upon consideration of the aforesaid findings and conclusions, it is ORDERED that
1. The citations issued by Complainant to Respondent on August 8, 1975, as the result of an inspection at the aforementioned worksite on August 6, 1975, are VACATED, and thus no assessment of penalties shall be [*19] made.
BENJAMIN G. USHER, Judge, OSHRC