HOGAN MECHANICAL, INC.

OSHRC Docket No. 15438

Occupational Safety and Health Review Commission

December 19, 1977

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Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Theo F. Weiss, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

The issue in this case is whether respondent, Hogan Mechanical, Inc., was in violation of 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act"] when its foreman working alone at a multi-employer worksite without respondent's knowledge was exposed to various safety violations. Administrative Law Judge Dee C. Blythe issued a decision affirming the alleged violations included in two citations issued by complainant. We reverse.

Respondent is engaged in the business of installing mechanical equipment in buildings under construction. Its principal place of business is at San Antonio, Texas, and it normally employs about 20 persons. At the time of inspection, respondent was working on eight to ten different jobs.

Respondent employed a working foreman, Mr. Schultz, who worked along with employees while performing his duties as a foreman. On the day of inspection, Schultz telephoned respondent's president, his direct supervisor, [*2] and stated that he did not need any employee assistance, that he wanted to send an apprentice to another job, and that he was going to the "Market Square" job. After the telephone conversation, however, Schultz proceeded alone to a job at the Blessed Sacrament Catholic Church where respondent was a subcontractor. Schultz testified that he had worked at the church "maybe a week or two weeks before that" and that there was no conversation between respondent's president and himself concerning his going to the church jobsite. While he was at the church he installed a sleeve in the deck of the bell tower, checked its alignment, and observed the progress of the job. During his presence at the church, Schultz gained access to the second and third levels of the bell tower by using a stepladder placed there by the general contractor.

While Schultz was working, a compliance officer for the Occupational Safety and Health Administration inspected the worksite. Subsequently, two citations were issued to respondent. Citation No. 1 alleged a nonserious violation of 29 CFR 1926.450(a)(9) because the siderails of the stepladder did not extend 36 inches above the landing, a nonserious violation [*3] of 1926.450(a)(10) because the stepladder was not tied, blocked, or otherwise secured to prevent its displacement, and a nonserious violation of 1926.500(d)(1) because of the lack of guardrails on the second level of the bell tower near the stepladder. Citation No. 2 alleged a serious violation of 29 CFR 1926.500(d)(1) because of the lack of guardrails at an upper level of the bell tower. Respondent contested the citations together with the proposed penalties of $685, and a hearing was held before the Administrative Law Judge.

The Judge affirmed all alleged violations. Following R. H. Bishop Co., 74 OSAHRC 35/C14, 1 BNA OSHC 1767, 1973-74 CCH OSHD para. 17,930 (No. 637, 1974), he rejected respondent's argument that it was not responsible for hazards created by the general contractor. n1 He also found:

It is reasonable to infer that the time constraints for this work were fairly narrow and that the respondent knew or should have known that Mr. Schultz would perform it even though the exact time of performance was uncertain.

Knowing, then, that its employee soon would be required to go up into the bell tower, the respondent had a duty to inspect the jobsite and use reasonable [*4] diligence to discover safety hazards. Such diligence would have revealed the violative conditions, which were visible and obvious.

Rejecting respondent's argument that Horne Plumbing & Heating Co. v. O.S.H.R.C., 528 F.2d 564 (5th Cir. 1976) is dispositive of the case, he concluded:

Here, while the employer had no actual knowledge that its foreman would go to the church job that particular day, the action was foreseeable, and the employer had taken no measures to prevent the foreman's exposure to the hazards which even a casual inspection of the jobsite would have revealed.

Finally, the Judge rejected respondent's contention that this was an "isolated event" because it was not pleaded as an affirmative defense. Thereafter, respondent petitioned for review of the Judge's decision and all three Commissioners directed that the case be considered by the Commission.

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n1 Facts similar to those in R.H. Bishop Co., 74 OSAHRC 35/C14, 1 BNA OSHC 1767, 1973-74 CCH OSHD para. 17,930 (No. 637, 1974) were comprehensively analyzed in Anning-Johnson Co., 76 OSHARC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 3694, 1976).

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Respondent argues that Horne Plumbing & Heating is "squarely in point and decides the case at bar." Dismissing as "plainly ridiculous" the judge's finding that Schultz's action was foreseeable, respondent claims that its issuance of safety instructions to Schultz shows that it had taken measures to prevent the violations.

In essence, respondent's defense is based upon the concept that the violations were unpreventable. Respondent has presented evidence concerning the safety instructions given to foreman Schultz, and it argues that in giving these instructions it had taken sufficient steps to obviate his being exposed to the hazards.

Before reaching the adequacy of respondent's safety instructions, n2 we consider the Judge's conclusion that Schultz's presence at the church worksite was "foreseeable" in light of the Judge's finding that "the employer had no actual knowledge that its foreman would go to the church job that particular day."

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n2 As to the adequacy of safety instructions, see for example, the Fifth Circuit's decision in Horne Plumbing & Heating, supra; Getty Oil Co. v. O.S.H.R.C., 530 F.2d 1143 (5th Cir. 1976); Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD para. 21,612 (No. 9295, 1977); Utilities Line Construction Co., 76 OSAHRC 121/A2, 4 BNA OSHC 1681, 1976-77 CCH OSHD para. 21,098 (No. 4105, 1976); and Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975), opinion withdrawn and rehearing granted, No. 76-1060 (4th Cir., October 26, 1977).

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Schultz testified that he worked at the church "[m]aybe a week or two weeks" before the day of inspection. He testified that at that time he had worked there for "maybe a month, six weeks, something like that, off and on." He also testified about his conversation with respondent's president, Mr. Hogan, on the morning of the inspection as follows:

Q Before you left home that morning you called Mr. Hogan?

A Yes.

Q And just detail the conversation you had.

A Well, I was going down to Market Square.

Q Did he tell you to go down there?

A We discussed it this way: There was work to do that had to be done. And I didn't know whether I should go down to Market [Square].

Q Did Mr. Hogan tell you to go down to Market Square?

A Yes, sir, so that's where I went. That is where I was headed.

Q Was there any conversation between you and Mr. Hogan that morning about your going to the church job?

A No, sir.

Q Mr. Hogan didn't tell you to go to the church job?

A Right.

Q And you didn't tell Mr. Hogan you were going by there?

A Right.

Hogan verified Schultz's testimony as follows:

Q And where was Mr. [*7] Schultz support to be working?

A In Market Square.

Q Did you have a conversation with him that morning before he went to work?

A Yes.

Q And what was that about?

A He said he wasn't going to need the apprentice, and said there wasn't enough work. And so he asked me what job to send him to. And I told him what job to tell him and he said he would go on down to Market Square.

From this evidence, it is clear that Hogan had no reason to believe that Schultz would work at the church job on the day of inspection.

We therefore conclude that respondent could not have prevented the alleged violations. Schultz took it upon himself to proceed to the church job to perform his self-assigned task after he had notified Hogan that he was going elsewhere, and there was nothing Hogan could have done to avert his foreman's exposure to the hazards. In Brennan v. O.S.H.R.C. & Republic Creosoting, 501 F.2d 1196 (7th Cir. 1974), an employee whose job assignment did not require his presence in the vicinity of a truck from which railroad ties were being unloaded, and who had been warned to avoid the area, was fatally injured when he participated in the unloading process. The court stated the [*8] following:

. . . Whether training is necessary and the amount of any training required will depend on a number of factors, such as the experience of the employee in the particular field of work, the extent of the employee's participation in the operation in question, and the complexity and danger involved in the operation . . . . the Commission accurately recognized that training may be unnecessary for an employee who is wholly disassociated with the operation in question and who would not be foreseeably exposed to danger.

501 F.2d at 1200. The court affirmed the Commission's conclusion that under these circumstances a reasonably diligent employer would not have foreseen the potential for the employee's exposure to a hazard.

In the instant case, Schultz indicated to respondent that he would be at a worksite other than the one at which he was ultimately exposed to hazardous working conditions, n3 and respondent had no reason to believe Schultz would work at the church job on that day. Thus, respondent could not realistically have prevented the violations. Accordingly, respondent is not responsible for the violations because "Congress intended to require elimination only of preventable [*9] hazards." National Realty & Construction Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1266 (D.C. Cir. 1973).

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n3 Moreover, Schultz did not create the hazards; they existed at the worksite when he arrived there. Compare Ocean Electric Corp., supra note 2.

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The Judge's decision is reversed and the citations are vacated.

So ORDERED.