ROBERT E. LEE PLUMBERS, INC.
OSHRC Docket No. 2431
Occupational Safety and Health Review Commission
May 2, 1975
[*1]
Before VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE COMMISSIONER: This case again present the issue of whether a subcontractor on a construction site is in violation of safety standards promulgated pursuant to the Occupational Safety and Health Act of 1970, (29 U.S.C. 651 et seq, ) when although it did not create or control the conditions in violation of the standards, its employees were exposed to the hazards resulting therefrom. Judge J. Marker Dern held that, under these circumstances, Respondent (Lee) was not in violation. We have reviewed the record, including the briefs of the parties. We reverse the Judge's order and affirm th citations.
Lee was the plumbing subcontractor on a construction project which consisted of four six-story buildings containing 348 residential units. It was responsible for all plumbing work on the project. Its employees were thus required to be in all areas of the entire construction site at various times.
Following an inspection of the construction site by Complaint's representative, Lee was cited for violations involving poor housekeeping, unguarded wall openings, and stairways without railings. n1 It is undisputed that [*2] these conditions existed. The record also shows that Lee's employees were exposed to the resulting hazards. In traveling to their work areas, they passed within several feet of the unguarded wall openings. The stairways without railings provided the only access to floors where they were working. In traveling throughout the construction site, Lee's employees were required to pass through areas where debris was strewn about, exposing them to a tripping hazard.
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n1 These conditions were allegedly in violation of the safety standards at 29 C.F.R. 1926.25(a), 29 C.F.R. 1926.500(c)(1), and 29 C.F.R. 1926.500(e)(1).
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Lee argues that, because it did not create the violative conditions of control those areas of the worksite where these conditions existed, it should not be found in violation. We have consistently rejected this argument. R.H. Bishop Co., 8 OSAHRC 930, BNA 1 O.S.H.C. 1767, CCH E.S.H.G. para. 17,930 (1974); California Stevedore & Ballast Co., 8 OSAHRC 811, BNA 1 O.S.H.C. 1757, CCH E.S.H.G. [*3] para. 17,931 (1974). As we said in R. H. Bishop:
In the usual case an employer is in violation of section 5(a) when his employees are affected by a violative condition. It is no defense that others created the condition, were responsible for its existence, or had control of the site where such condition exists. 8 OSAHRC at 931.
Lee also argues that it should not be found in violation because its employees were only exposed to the hazards while gaining access to their actual work stations. Lee reasons that the violations therefore did not occur on its "workplace," which it defines as those locations where plumbing work is actually performed.
This argument is unpersuasive. It is obvious that the entire construction site was Lee's workplace. There was plumbing work to be done in all parts of each building, and also outdoors. Lee's employees therefore were required to move throughout the site in order to perform their assigned work. Gaining access to their work stations was an ordinary and necessary activity of their employment. We conclude that Lee violated the cited standards.
We turn now to the assessment of appropriate penalties. Labor proposed penalties of $35, [*4] $75, and $35 for the housekeeping, unguarded wall opening, and stairway violations. The gravity of the housekeeping and stairway violations was low as an accident would likely have resulted in only a minor injury. The wall opening violation was of somewhat higher gravity as a fall of up to 40 feet was possible. The duration of exposure to all violations was brief, as Lee's employees were only exposed while passing through the areas where the violations existed. Lee is of moderate size, with an annual gross income of 1.8 million dollars. It has no prior history and appears to have acted in good faith. On balance, the proposed penalties are appropriate.
Accordingly, the Judge's order is reversed. The citations for violations of 29 C.F.R. 1926.25(a), 29 C.F.R. 1926.500(c)(1), and 29 C.F.R. 1926.500(e)(1), and the accompanying proposed penalties are affirmed. It is so ORDERED.
CONCURBY: CLEARY
CONCUR:
CLEARY, COMMISSIONER, concurring: I agree with the lead opinion's disposition of this case. The Secretary of Labor makes out his prima facie case by establishing (1) the presence of a hazardous condition as the result of a violation of the Act, and (2) that the area of the hazardous [*5] condition is accessible to employees. See Brennan v. O.S.H.R.C. & Underhill Constr. Corp., 513 F.2d 1032 (2d Cir., 1975). As a matter of practicality, however, most remedial measures should be directed at employers who create, have control of, and are responsible for a hazardous condition. We cannot ignore, however, other employers who, while not having control of the dangerous area, may choose to expose their employees to the hazard.
Due to the nature of a multiple-employer construction site, many employers are frequently placed in a difficult situation by the above-stated position, and seemingly have a hobson's choice between complying with a standard by difficult means or risking non-compliance. While being sympathetic to their dilemma, the clear purpose of the Act tips the balance in favor of the safety and health of employees. To provide a form of immunity from the Act's remedial measures to those employers who are not in control of a hazardous condition, is to weaken severely the very fabric of the Act. We cannot permit this to happen.
I note with some interest a proposed solution to this problem in a relatively recent legal periodical. n2 The author proposes [*6] that employers can redistribute the burden of citations by contractual arrangements. While this agency could not pass authoritatively on such arrangements, they would in general seem consistent with the preventive and remedial objectives of the Act.
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n2 Comment, OSHA: Developing Outlines of Liability In Multi-Employer Situations, 62 Geo. L.J. 1483, 1496 (1974).
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Of course such arrangements would not be a defense to a violation. Each employer has non-delegable statutory duties to protect the health and safety of employees at the workplace.
[The Judge's decision referred to herein follows]
DERN, JUDGE: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereafter called the Act) contesting a Citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act. The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control [*7] of the respondent, located at 461 Northwest 161st Street, North Miami, Florida, and described as "plumbing construction," the respondent has violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.
The citation, which was issued on March 2, 1973, alleges that the violation results from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register on December 16, 1972, Volume 37, No. 243, and codified in 29 CFR 1926. The description of the alleged non-serious violations contained on said citation states:
Item No. 1 Failure to keep all debris cleared from work areas, passageways, and stairs, in and around all buildings.
Item No. 2 Failure to insure guarding of elevator shaft and hallway wall openings by standard railings and toeboards; buildings 1, 2, 3 and 4.
Item No. 3 Failure to insure that every flight of stairs having four or more risers is equipped with standard stair railings; building 1, 2, 3 and 4.
The standards as promulgated by the Secretary provide as follows:
29 CFR 1926.25(a) During the course of construction, [*8] 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 1926.500(c) Guarding of wall openings. (1) Wall openings, from which there is a drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface, shall be guarded. . . .
29 CFR 1926.500(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails.
Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the respondent was notified by letter dated March 2, 1973, from James E. Blount, Area Director of the Ft. Lauderdale, Florida area Occupational Safety and Health Administration, United States Department of Labor, that he proposed to assess a penalty for the violations alleged in the amount of $145.00, namely $35 for Item No. 1, $75 for Item No. 2 and $35 for Item No. 3.
After respondent contested this enforcement [*9] action, and a complaint and an answer had been filed by the parties, the case came on for hearing at Miami, Florida on November 13, 1973.
No additional parties desired to intervene in the proceedings.
FINDINGS OF FACT
The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues presented in this case.
1. Respondent, Robert E. Lee Plumbers, Inc., is, and at all times hereinafter mentioned was, a corporation with an office and place of business at 7841 N.W. 56th Street, Miami, Florida. It is engaged in business of plumbing contracting (Par. II, Complaint and Answer).
2. Respondent at all times pertinent to this proceeding maintained a workplace at 461 N.W. 161st Street, North Miami, Florida, where it was engaged in plumbing construction work on four six-story buildings, numbered 1, 2, 3 and 4 (Para. IV(A), Complaint and Answer).
3. The compliance officer identified himself to Mr. Joseph Levan, respondent's foreman, and informed him of the purpose of the visit to the work project and was accompanied on the inspection tour by Levan.
4. Eight different employers [*10] were working on construction project under general classification of air conditioning, elevator, electricians, plumber, plasterer, general contractor and stud men.
5. Debris, consisting of broken concrete, scrap lumber, cardboard boxes and other waste material, was scattered around the job site, outside buildings and on the stairways (Complainant's Exhibits No. 1, 2 and 3).
6. Stairways, leading to upper floors, had no guardrails on one side as stairways were enclosed on three side by the walls.
7. Stairs consisted of risers 7 or 8 inches in height with 7 or 8 steps to a landing, turning on landing in opposite direction, negotiating steps to next landing.
8. Each building had approximately 12 elevator shaft wall openings, two openings on each floor.
9. In building 1, one or two elevator shaft openings were guarded by one rail across opening and other unguarded shaft openings were in buildings 2 and 3. Elevator was in process of being installed in building 4.
10. Respondent's employees passed within 4 or 5 feet of the unguarded elevator shaft wall openings.
11. Throughout the four buildings were wall openings, unguarded, at each four levels of each building (Complainant's [*11] Exhibit 5).
12. Respondent's employees walked within 4 or 5 feet of the wall openings.
ISSUES
The issues presented are whether the respondent was in violation of section 5(a)(2) of the Act and certain safety standards promulgated under the Act. A further issue to be determined is, if respondent is found in violation, what amount, if any, is an appropriate penalty for such violation.
DISCUSSION
Section 5(a)(1) of the Act provides:
Each employer (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
Section 5(a)(2) of the Act provides:
Each employer (2) shall comply with occupational safety and health standards promulgated under this Act.
Section 9(a) of the Act provides:
If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation [*12] to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or other alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health.
Herein, the complainant asserts that respondent was in violation of safety standards for failure (1) "to keep all debris clear from work area, passageway, and stairs, in and around buildings," (2) "to insure guarding of elevator shaft and hallway wall openings by standard railings and toeboards; buildings 1, 2, 3 and 4," (3) "to insure that every flight of stairs having four or more risers is equipped with standard stair railings, buildings 1, 2, 3 and 4."
The respondent is a subcontractor performing work on a project consisting of construction of four multi-story buildings and on which a number of subcontractors were performing a wide variety of work. The "place [*13] of employment" as expressed in the Act is assumed to be the entire work project. However, care should be exercised in defining the "place of employment" where multi-contractors are involved. This apparently has not been resolved heretofore. Admittedly, the respondent is responsible for the "place of employement," yet no one should conclude that such responsibility imposed by the Act embraces the entire work project as shown in this case. This responsibility is the responsibility of the prime contractor. What then is the responsibility of the respondent, as a subcontractor employer? His responsibility is his worksite or that portion of the work as provided in his contact of employment. Under the Act, the respondent is required to comply with occupational safety and health standards and upon doing so, complies with the Act by furnishing a place of employment which is free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees. Laws usually follow the rule of reason and thus it would not be reasonable to require a subcontractor to insure a safe workplace for his employees, if to do so would embrace an entire work [*14] project on which numerous other contractors' employees are working.
Under section 9(a) of the Act, it is mandatory for an abatement period to be fixed with respect to each alleged violation. Respondent then is required to correct any violations, but can he correct a violation, the creation of which was not of his doing nor over which he has any control? Can respondent correct a violation which by doing so would interfere with the work endeavor of another subcontractor? Did Congress intend for an employer to correct a violation, to cease his portion of the work he is required to perform under contract, although the cause of the violation has no relation to his portion of the work under contract? Certainly, these queries must be resoundingly answered in the negative.
Turning now to the record facts, we find with respect to Item No. 1 of the citation, a housekeeping violation of failure to keep work areas, in and around buildings, free from all debris. The record is void of any reference to debris at the work site of respondent and all evidence points to debris at places other than work site of respondent, A picture speaks a thousand words, and this is particularly true of Complainant's [*15] Exhibits 1, 2 and 3. These pictures show debris outside the buildings. The record completely fails to show any relationship of the alleged violation to the work site of respondent. Even though there is admittedly hazardous conditions existing, with debris as shown in Complainant's Exhibits 1, 2 and 3, the condition was not caused by respondent and he has no responsibility for its existence. Requiring the respondent, the plumbing subcontractor to abate such a violation is an absurdity and lacks in reasonableness to require that he "pull" his employees off the jobs as means of abatement. Possibly, charging the one responsible for creating the debris or the one responsible for the entire work project may be the solution.
With respect to Item No. 2, failure to guard elevator shaft and hallway wall openings, the reasons given in the former paragraph are pertinent. Furthermore, the record is conflicting with reference that respondent's employees were working near the unguarded elevator shaft or wall openings. Merely to walk by either openings can be considered only an incidental hazard and one not contemplated by the Act. To abate by requiring respondent to place guardrails [*16] or other guarding devices at the elevator shaft or wall openings could lead to a jurisdictional dispute as to who has control over the particular work site or sites.
With respect to Item No. 3, failure to equip stairs with the standard, rails, the reasons heretofore advanced are appropriate. Furthermore, the construction of the stairs, of itself, even without railings, provided no hazard. The stairs were enclosed on three sides by the wall and the risers were approximately 7 or 8 inches high with approximately 14 or 15 risers to a landing. The possibility of falling from the stairs is minimal.
Respondent raises the question of proper identification by the compliance officer as required by section 8(a) of the Act. This section, in part, requires:
In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge.
It does appear that the compliance officer did not present credentials, whatever such may be as these are not defined in the Act, as the Act only states "appropriate credentials." Furthermore, in the Congressional hearings "credentials" are not defined. Herein, the compliance officer identified [*17] himself to Joseph Levan, respondent's foreman at the project site, informed him of the purpose of the visit and Mr. Levan accompanied the compliance officer on the inspection. It seems that the intent of the Act was accomplished, but in view of the disposition of this case, no affirmative finding is made with respect to the issue raised by respondent. Furthermore, this technical issue is currently on review by the Commission. Genco, Inc.,
CONCLUSIONS OF LAW
1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.
2. The respondent was at all times material hereto subject to the requirements of the Act and standards promulgated thereunder.
3. The respondent's "place of employment" as a subcontractor, is that portion of his work under contract and this denotes his area of responsibility to his employees.
4. The Act does not contemplate abatement of the violation by the subcontractor where the violation is precipitated by another subcontractor.
5. The Act does not contemplate abatement of a violation by a subcontractor, not the perpetrator [*18] of the violation, by requiring the removal of his employees from the "place of employment."
6. On February 20 and 21, 1973, respondent was not in violation of section 5(a)(2) of the Act, and safety standards 29 CFR 1926.25(a), 29 CFR 1926.500(c)(1) and 29 CFR 1926.500(e)(1).
ORDER
Accordingly, it is Ordered that the citation and notification of proposed penalty issued March 2, 1973, are vacated.