OSHRC Docket No. 3901

Occupational Safety and Health Review Commission

May 13, 1976


Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  


Altero D'Agostini, Regional Solicitor, USDOL

Jerry M. Ackeret, for the employer




BARNAKO, Chairman:

This case presents the issue of whether a materialman for a multi-employer construction site is in 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") where it creates and has control over hazardous conditions to which employees of subcontractors are exposed. n1 Administrative Law Judge Harold A. Kennedy vacated a citation issued under these circumstances, holding that there was no liability because none of Respondent's own employees were exposed to the hazard. For the reasons herein, we reverse.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The facts are these: Respondent was a materialman who contracted to [*2]   provide and erect safe tubular welded scaffolding for a three-story building under construction in San Francisco.   Respondent's employees were on the site approximately a week prior to the inspection in order to erect the scaffolding, and did not return to the site until after the inspection. On the day of inspection, employees of the lathing and plastering subcontractors were observed on the second and third levels of the scaffold, approximately 11 and 16 feet above the ground.   It was stipulated that on and prior to the date of inspection, there were no midrails installed on any level of the scaffold. Respondent's president testified that Respondent would have corrected or repaired the scaffolding if requested to do so by the general contractor at the site.

On these facts, Respondent was cited for a nonserious violation of 1926.451(d)(10) in that the guardrails on the scaffolds lacked midrails. n2 It is not disputed on review that the lack of midrails is contrary to the requiremenmts of the standard.   The issue, therefore, is whether under these facts Respondent is chargeable with a violation of the standard.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - -   [*3]   - - - - - - - -

n2 Respondent was also cited for a violation of 1926.451(d)(4) in that the scaffold legs were not set on foundations adequate to support the maximum rated load.   The Judge vacated this item of the citation on the basis that none of Respondent's employees were exposed to the hazard. The Secretary concedes on review that a violation of the standard was not made out on the facts and does not seek reversal of the Judge's vacation of the item.   That item, therefore, is not before us.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In the past, the Commission has consistently held that an employer cannot be liable under the Act where none of its employees are exposed to the cited conditions.   See, for example, Gilles & Cotting, Inc., 4 OSAHRC 1080, BNA 1 OSHC 1388, CCH OSHD para. 16,763 (1973), reversed and remanded on other grounds, 504 F.2d 1255 (4th Cir. 1974); Dore Wrecking Co., 6 OSAHRC 277, BNA 1 OSHC 1555, CCH OSHD para. 17,184 (1974); J.E. Roupp & Co., 7 OSAHRC 919, BNA 1 OSHC 1680, CCH OSHD para. 17,660 (1974); James E. Roberts Co., 7 OSAHRC 1005, BNA 1 OSHC 1684, CCH OSHD para. 17,659 (1974); Humphreys &    [*4]   Harding, Inc., 8 OSAHRC 304, BNA 1 OSHC 1700, CCH OSHD para. 17,784 (1974); Home Supply Co., 7 OSAHRC 527, BNA 1 OSHC 1615, CCH OSHD para. 17,521 (1974).   In vacating, the Judge relied upon this line of cases.

On review, Respondent argues that the reasoning in the above line of cases is controlling in the instant case since Respondent had no employees exposed to the cited condition.   The Secretary, on the other hand, seeks to have us overrule our prior position and adopt a rule in which we would hold an employer liable for violations which it creates or controls and to which employees of other employers are exposed, notwithstanding the lack of exposure of its own employees.

In response to the arguments advanced by the parties, we note that we continue to adhere to the position that ordinarily we will hold an employer responsible for the safety of its own employees.   However, in Grossman Steel & Aluminum Corp., No. 12775 (May 12, 1976) and Anning-Johnson Co., Nos. 3694 and 4409 (May 12, 1976), we modified that rule with regard to multi-employer construction sites, in order to accommodate the unique nature of such workplaces. In our rule governing liability on multi-employer [*5]   worksites, we specifically adopted the court of appeals decision in Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032 (2d Cir. 1975) to the extent that it would impose liability on a subcontractor who creates a hazard or has control over the condition on a multi-employer construction site even though only employees of other subcontractors are exposed. n3 We recognize that here, a materialman rather than a subcontractor created the hazardous condition.   However, Respondent's status as a materialman does not warrant the application of a rule different from that applied to subcontractors. Materialmen no less than subcontractors are capable of creating hazards or controlling hazards which endanger the employees of other employers.   We will, therefore, adopt a rule in which a materialman will be liable for violative conditions which it created or had control over and to which employees of contractors are exposed, even though no employees of its own are exposed to the hazard. We conclude that, as with our rule regarding subcontractors, such a rule will better serve the interest of employee safety on such sites than would our former rule and that our rule will not place [*6]   an unreasonable or unachievable duty on materialmen. We stress again that our rule is limited in applicability to multi-employer sites in the construction industry.   Accordingly, we apply the rule in this case.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Although the partial adoption of Brennan v. OSHRC (Underhill Construction Corp.), supra, was dictum in Grossman, supra, we noted there that we fully expected to follow that rule in appropriate cases.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Turning to the facts of the case, the preponderant evidence shows that Respondent created the cited hazard at the multi-employer construction site by erecting an improperly guarded scaffold. Employees of other subcontractors were directly exposed to the hazard. We conclude that on this evidence Respondent did not fulfill its duty under the Act and find that it was in nonserious violation of 29 C.F.R. 1926.451(d)(1) as charged.

Respondent stipulated to the appropriateness of the proposed penalty of $105 in the event a violation was found.   We assess the stipulated amount inasmuch as no party [*7]   or employees has objected to it and the amount is not clearly repugnant to the objectives of the Act.   Thorleif Larsen & Son, Inc., 12 OSAHRC 313, BNA 2 OSHC 1256, CCH OSHD para. 18,826 (1974).

It is so ORDERED.  



MORAN, Commissioner, Dissenting:

The disposition of this case as ordered in Judge Kennedy's decision, which is attached hereto as Appendix A, was correct and should be affirmed in all respects.   The reversal of that decision is another of many recent examples of how my colleagues will alter sound and longstanding precedent in order to convict an employer.     As I predicted in those decisions, an employer will not know until he is convicted by my colleagues, and probably not even then.

This clearly contradicts the standard set forth by the Fifth Circuit in Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 649 [*8]   (5th Cir. 1976):

"An employer . . . is entitled to fair notice in dealing with his government.   Like other statutes and regulations which allow monetary penalties against those who violate them, an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents."

Neither this decision - nor the two others cited above - give employers any reasonably clear standard of culpability or circumscribe the Secretary's discretion in any way.

It is undisputed that respondent was a materialman who contracted to provide and erect safe tubular welded scaffolding for a three-story building under construction.   The parties stipulated that no employees of respondent were exposed to the hazard created by the scaffolding. Furthermore, respondent was not in control of the scaffolding at the time of the inspection. The only contract between the respondent and the general contractor was a letter bid.   Nowhere in this contract was there any provision for continuing maintainance and inspection. The rental invoices [*9]   indicated quite clearly that respondent was only to erect and dismantle the scaffolding as directed.   Respondent's president testified that it was not its responsibility to inspect and maintain the scaffolding nor was he ever requested by the general contractor to do so.   The record further reveals that respondent's employees were on the jobsite only long enough to erect the scaffolding one week prior to the inspection and that they were not to return until it was time to dismantle it.

The majority opinion cites a long line of Commission precedent for the proposition that:

"[T]he Commission has consistently held that an employer cannot be liable under the Act where none of its employees are exposed to the cited conditions."

In addition, the propriety of that proposition has been examined in Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974), and was not overruled.

An employer should be held liable under the Act only when his own employees are actually exposed to hazardous working conditions.     As the Commission has correctly stated in the past, "the intent   [*10]   of the Act is to place responsibility for maintaining safe working conditions upon those employers who have endangered employees." Secretary v. Hawkins Construction Company, 8 OSAHRC 569, 570 (1974). I find no rationale in the Act itself, in the majority decision, or in the cases cited therein which justifies a departure from that rule of law.

The primary error in the majority opinion is that it imposes liability outside of the employment relationship. As we held in our original decision in Secretary v. Gilles & Cotting, Inc., 4 OSAHRC 1080 (1973), Congress did not intend for the Act to go that far.   Congress has not changed the law since that decision.

Messrs. Barnako and Cleary contend that they adopted the rule established in Brennan v. OSAHRC and Underhill Construction Corporation, 513 F.2d 1032 (2d Cir. 1975), in their decisions in Secretary v. Grossman Steel & Aluminum Corporation, supra, and Secretary v. Anning-Johnson Company, supra. For the reasons I gave in my dissenting opinions in those cases, the Underhill rule was misapplied in the majority opinions.   The same is true in the instant case.

The Circuit Court stated in Underhill that:   [*11]  

"[I]t is not insignificant that it was [this employer] that created the hazards and maintained the area in which they were located.   It was an employer on a construction site, where there are generally a number of employers and employees.   It had control over the areas in which the hazards were located and the duty to maintain those areas.   Necessarily it must be responsible for creation of a hazard."

513 F.2d 1039 (emphasis added).   The evidence in the instant case establishes that respondent did not maintain the area where the alleged hazard was located and had no duty to do so.   Additionally, it had no control over the area in question.   Thus, it is clear that Underhill is inapplicable.

My associates have now extended their rules for subcontractors, as announced in the Grossman and Anning-Johnson decisions to materialmen. As I stated in my dissents in those cases:

"It is therefore apparent that their Holding leaves them free to apply arbitrary requirements, devised with the help of hindsight, in order to impose liability."

That forecast rings true in this case.   Who will be next to suffer from the Barnako-Cleary "arbitrary requirements"?   It might be that   [*12]   the food vendor who visits worksites in his lunch wagon will be the next to be treated as a subcontractor. Or the manufacturer of a vehicle or machine - or the purveyor of services or supplies! It is clear to me that if the Secretary of Labor wants to extend his ambit under the Act to such employers, he will have the support of Messrs. Barnako and Cleary.

In any event, all employers are now faced with a job safety responsibility that is both impossible to perceive in advance and which contradicts the very purposes of the Act.   Congress did not adopt a National Building Code when it enacted this law.   Its purpose was to protect employees by making each employer responsible for the job safety and health of his employees.   This decision goes far beyond that - by convicting an employer who had no employees at the worksite of an infraction simply because of the substandard nature of the physical equipment it furnished.



Norman S. Nayfach, for the Secretary

Jerry M. Ackeret, for the Respondent

Harold A. Kenney, Judge OSAHRC:

The determinative issue here is that the Secretary Complainant failed to show that there was an employment relation between the [*13]   Respondent Employer, the supplier of scaffolding at a San Francisco construction site, and the workers observed there when the Secretary's representative, F.   Lee Lawrence, made an inspection. The existence of such a relation, under decisions of the Commission, is a sine qua non when the Secretary proceeds under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.).   Having failed to show that any of Respondent's employees were present at the workplace inspected, the Secretary's citation of July 11, 1973, containing two "Items" or charges, and related proposed penalties, must be vacated.

Necessary jurisdictional facts are not in issue.   It was undisputed that Respondent is a corporation, that it is in the business of supplying and erecting scaffold equipment for use in construction and that it is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act (SX-1).

The facts may be briefly stated.   Mr. Lawrence visited the workplace in question, referred to as Building "F" in a square block bounded by Golden Gate Avenue on the North, McAllister Street on the South, Buchanan Street on the West and Laguna Street [*14]   on the East, on the morning of July 9, 1973.   See sketch in evidence as Secretary's Exhibit 2.   The building is a three-story apartment building and was, at the time of the inspection, under construction.   A tubular, welded scaffold had been supplied and erected on all four sides of the building by Respondent on or about July 2, 1973 (Stipulation, SX-1).   The second section or lift of the scaffold was 11 feet or more in height and the third lift was at least 16 feet above the ground (Id., Tr. 27).

Inspector Lawrence said he observed men working on the second and third lift on the north side and on the third life level on the east.   He said two of the workers on the scaffolding were employees of Sam Nava Lathing Company, a lather subcontractor, and two were employees of Syl's Plastering Company, another subcontractor. He also observed two employees installing window flashing, but never ascertained their employer.   He said Respondent had no employees at the job site (Tr. 26-9, 52-5).

After his arrival around 8:30 a.m., Inspector Lawrence spoke with the prime contractor's superintendent, "Red" Winters, who advised that Respondent had done the scaffolding work.   Respondent's representative,   [*15]   Robert Lynch, came to the job site at Mr. Lawrence's request and took a tour of the workplace with the inspector at around 11:00 a.m. (Tr. 26-8, 32, 52, 55).

Mr. Lawrence said he observed "in the neighborhood of a half a dozen instances" of scaffold legs being in the air and not resting on a base or sill (Tr. 30-1; also Tr. 33-4).   This caused him to recommend issuance of the citation containing Item No. 1, a charge alleging violation of 29 C.F.R. 1926.451(d)(4) as follows:

Failure to adequately adjust and secure scaffold logs to sills to prevent movement, scaffold legs not secured to sills.

The standard appearing at 29 C.F.R. 1926.451(d)(4) provides:

(d) Tubular welded frame scaffolds. * * *

(4) Scaffold legs shall be set on adjustable bases or plain bases placed on mud sills or other foundations adequate to support the maximum rated load.

Mr. Lawrence also testified (and it was stipulated) that there were no midrails installed on the scaffold (Tr. 27-34, 40-1, 47, SX-1).   He, accordingly, recommended that the citation contain Item No. 2, a charge alleging violation of 29 C.F.R. 1926.451(d)(10) as follows:

Failure to provide standard railings on scaffold 16' above ground [*16]   level, in that no mid-rails were provided or ends of scaffold were not provided with railings throughout scaffold on Building #F.

The standard appearing at 29 C.F.R. 1926.451(d)(10) provides:

(10) Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), and approximately 42 inches high, with a midrail of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor.   Toeboards shall be a minimum of 4 inches in height.   Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

The Secretary proposed a penalty of $60.00 for Item No. 1 and $105.00 for Item No. 2.   Respondent timely contested both items of the citation and the penalties proposed.   After complaint and answer were filed, the case was heard on November 19 and December 18, 1973 in San Francisco, California.   Inspector Lawrence and Red Winters testified for the Secretary.   Respondent's President and sole stockholder, David Beatty, testified for it, along with Robert Lynch, who oversees Respondent's rental department.    [*17]   At the resumed hearing, subcontractor Sylvester LaChapelle, the owner of Syl's Plastering Company, testified for Respondent. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 No one appeared on behalf of Respondent's employees.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Red Winters testified that some scaffold legs were not properly blocked at the time of the Secretary's inspection (Tr. 139-40).   Mr. Beatty testified that his employees did erect and dismantle the scaffolding used at Building F.   They also returned after the inspection to make the corrections requested by Mr. Lawrence (Tr. 68-9).   Mr. Beatty explained that his firm agrees to install a safe scaffolding but does not undertake to maintain it during its use by others (Tr. 75, 79).   Mr. Lynch said he inspected the scaffolding at Building F before the inspection and ascertained that the legs were resting on adequate sills (Tr. 82).

Mr. LaChapelle, whose company was also cited by the Secretary (Tr. 123), testified that he had inspected the scaffolding after it was erected by Respondent's employees.   He considered it safe for his employees to [*18]   use, and he then had his employees place planking on the scaffolding. Mr. LaChapelle recalled that the scaffolding became undermined later as the result of the work of subcontractors (Tr. 109-37).

As indicated at the outset, the Review Commission has held that liability under the Occupational Safety and Health Act of 1970 requires a showing that the cited employer has exposed employees at the workplace. The Commission's decision in Gilles & Cotting, Inc., Docket 504, dated October 9, 1974, is dispositive.   The Secretary seeks to distinguish the Gilles case from the case at bar on the basis that in the Gilles case the Secretary sought to hold the prime contractor when it supposedly was not able to direct abatement.   The language of the Commission's opinion, however, is clear enough to absolve Respondent here:

* * * The difficulty with Complainant's position is that it imposes liability outside the employment relationship. * * *

By its terms section 5(a) imposes duties on "[e]ach employer" and the term "employer" is defined (in pertinent part) at section 3(5) as meaning ". . . a person engaged in a business affecting commerce who has employees . . ." The term "employee"   [*19]   is defined at section 3(6) as meaning ". . . an employee of an employer who is employed in a business of his employer which affects commerce."

By using these terms Congress evidence its intent that the obligations imposed by section 5(a) are predicated upon the existence of an employment relationship as between the obligated party (the employer) and the recipients of the benefits of the obligations.   And, since this is remedial legislation, the employment relationship is not to be construed according to the technical concepts of the common law.   * * * These authorities, however, do not stand for the proposition that an agency should create an employment relationship when one does not exist in fact.   Yet, the creation of such a relationship would be the necessary result were we to adopt Complaint's position.   * * *

See also Dore Wrecking Company, Docket 597 dated January 24, 1974; Arizona Public Service Company, Docket 329, dated October 18, 1973; and Home Supply Company, Docket 69, dated March 28, 1974.

Since none of Respondent's employees were exposed to the alleged hazards, both non-serious items and their proposed penalties must be vacated.

The following conclusions [*20]   of law are entered:

1.   Respondent is an "employer" engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970.

2.   The Commission has jurisdiction over the parties and the subject matter of this proceeding.

3.   The Secretary did not establish violation of either 29 C.F.R. 1926.451(d)(4) or 29 C.F.R. 1926.451(d)(10).

Based on the foregoing, it is ORDERED that Items 1 and 2 of the citation issued against Respondent on July 11, 1973, and the related proposed penalties, are VACATED.

Harold A. Kennedy, Judge, OSAHRC

Dated: APR. 29, 1974