COTNER & COTNER, INCORPORATED

OSHRC Docket No. 16174

Occupational Safety and Health Review Commission

December 5, 1977

[*1]

Before CLEARY, Chairman, and Barnako, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Cecil Cotner, Secretary and Treasurer, Cotner & Cotner, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

Administrative Law Judge Erwin L. Stuller affirmed a citation for nonserious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., [hereinafter "the Act"] issued to respondent Cotner & Cotner, Inc., for allegedly failing to comply with the standard published at 29 CFR 1926.500(d)(1). n1 A $55 penalty was assessed.

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n1 29 CFR 1926.500 Guardrails, handrails, and covers.

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(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

[*2]

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Respondent timely petitioned for review of the Judge's decision, excepting to the conclusion that respondent was responsible under the Act for abating the violative condition, an opensided floor. Pursuant to 12(j) of the Act, Commissioner Barnako directed review by the full Commission of the Judge's decision on the issues raised in respondent's petition. n2 We affirm Judge Stuller's decision, and reduce the penalty to $25, our order to be final in ten days, unless within that time respondent moves to remand the case in order to adduce evidence on the affirmative defenses discussed in this opinion.

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n2 Former Commissioner Moran directed review without specifying any issue other than that the decision be reviewed for error.

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On November 12, 1975, respondent, a cement subcontractor, was engaged in cement-finishing work on a building under construction in Shawnee, Oklahoma. Two of respondent's employees were finishing cement on an opensided [*3] floor 12 feet above ground level. The job required finishing the floor to the very edge of the open side. There were no guardrails of any kind erected along the perimeter of the floor, and employees did not wear safety belts for protection.

Respondent argues that it had no control over the worksite and no duty to install the railings. It also maintains that it lacked the ability to abate the violative condition. It noted both at the hearing and in its brief before the Commission that its employees are usually on a worksite for only one day. Respondent relies upon 29 CFR 1926.16(c), which states that, "the subcontractor assumes responsibility with respect to his portion of the work," and upon Anning-Johnson v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975), to support its contention that it was not responsible for the cited condition.

Complainant argues that this case is distinguishable from Anning-Johnson v. O.S.H.R.C., supra, relied upon by respondent. He points out that the instant case involves a general contractor and one subcontractor while the Anning-Johnson case involved a general contractor and five subcontractors. Complainant argues that the potential [*4] confusion caused by so many employers on the site weighed heavily in the Anning-Johnson court's decision. Complainant also notes that respondent presented no evidence showing that it (1) had attempted to inform its employees of the hazard, or (2) had attempted to apprise the general contractor of the hazard.

Citing R. H. Bishop, 74 OSAHRC 35/C14, 1 BNA OSHC 1767, 1973-74 CCH OSHD para. 17,930 (No. 637, 1974), Judge Stuller rejected respondent's argument that it was not liable for the exposure of its employees to the violative condition. The parties' briefs in this case were filed and the Judge's decision was rendered before the Commission decided 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 and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976) in which the Commission dealt with the issue of subcontractor liability at multi-employer construction worksites. In these cases, the Commission declined to follow all aspects of the Seventh Circuit's decision in Anning-Johnson v. O.S.H.R.C., supra, relied upon by respondent in its petition [*5] and brief. We held that where the usual elements establishing employer liability have been shown, a subcontractor on a multi-employer construction site who did not create a violation and lacked the ability to abate within the literal terms of the standard may defend by showing that it took realistic steps, as an alternative to literal compliance with the standard, to protect its employees. See also Mayfair Construction Co., 5 BNA OSHC 1877 (No. 2171, Sept. 26, 1977); Donovan Electric Co., (No. 13822, Nov. 10, 1977).

In the case before us, the Secretary has established a prima facie case by showing that respondent's employees were working on an unguarded, open floor 12 feet above the ground. There was the requisite exposure of employees, and the obvious violation was either actually known, or should have been known to the subcontractor. Respondent, a cement finishing subcontractor whose employees were present at the worksite only one day, clearly neither created nor controlled the hazardous condition. On the record before us, however, respondent fails to establish either that it protected its employees by some means other than guardrails or that it lacked notice that [*6] the condition was hazardous. Judge Stuller, anticipating the Commission's actions in Anning-Johnson Co., supra and Grossman, supra, noted the absence of safety lines and belts as alternative forms of protecting respondent's employees. The Judge commented as follows:

Furthermore, it would appear that, regardless of the authority or power to put up guardrails, the respondent had the power to put safety lines and belts on his employees. This was not done. Therefore, the violation having been proven must be affirmed.

In these circumstances, we affirm the citation but will afford respondent the opportunity to adduce additional evidence pertaining to the affirmative defenses discussed above which were not articulated until after the hearing. In order to sustain an "alternative protection" defense respondent must show that it took some action to protect its employees. Doing nothing in the face of the exposure of its employees to a known hazardous condition created or controlled by another employer is a breach of the subcontractor's duty under section 5(a)(2). The use of safety lines and belts would have been a realistic alternative measure. Giving notice of the [*7] hazard to the general contractor would have been another. See Anning-Johnson, supra; Data Electric Company, Inc., 5 BNA OSHC 1077, 1977-78 CCH OSHD para. 21,593 (No. 13122, 1977).

Accordingly, the citation for nonserious violation of the Act for failure to comply with 29 CFR 1926.500(d)(1) is affirmed and a $25 penalty is assessed, unless within ten (10) days from the instance of this decision respondent moves to remand the case for the taking of additional evidence relevant to the aforementioned defenses.

It is so ORDERED.