McLEAN-BEHM STEEL ERECTORS, INC.

OSHRC Docket No. 76-2390

Occupational Safety and Health Review Commission

June 19, 1978

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner. *

* Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Ira J. Smotherman, Jr., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

The issue presented by this case is whether respondent, McLean-Behm Steel Erectors, Inc., a subcontractor on a construction site, violated OSHA standards concerning guarding of floor openings (29 C.F.R. 1926.500(b)(1)) and open-sided floors (29 C.F.R. 1926.500(d)(1)) even though it did not create or control the violative conditions in question. Administrative Law Judge Cecil L. Cutler, finding that respondent could not abate the violative conditions and possessed no alternative means to protect its employees, vacated the citations. We reverse.

I

McLean-Behm was performing work as a subcontractor on a three-story addition to a church in Atlanta, Georgia, when that site was inspected by an OSHA compliance officer on May 5, 1976. McLean-Behm's work on the church addition consisted primarily [*2] of placing reinforcing steel in the formwork that was being prepared to receive concrete to form the floors and columns of the structure. During the inspection, the compliance officer observed two McLean-Behm employees, one of whom was a foreman, working on the third floor of the addition about six feet from its unguarded open north edge. The drop from this edge was fifteen feet. The south and west sides of the third floor were also open and unguarded and had drops of twenty-five feet. The employees also were working near an unguarded elevator shaft opening in the floor.

As a result of the inspection McLean-Behm was charged with violations concerning the unguarded floor opening n1 and the open-sided floor. n2 The general contractor, who was cited for the same violations, abated the violations three days after the inspection. It did not contest the citations.

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n1 The cited standard, 29 C.F.R. 1926.500(b)(1), states:

Floor openings shall be guarded by a standard railing and toeboard or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

n2 The cited standard, 29 C.F.R. 1926.500(d)(1), states in relevant part:

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 by paragraph (f)(1)(i) of this section, on all open sides except where there is entrance to a ramp, stairway or fixed ladder.

The floor opening violation was alleged to be non-serious and a penalty of $35.00 was proposed for it, while the open-sided floor violation was alleged to be serious and a $500.00 penalty was proposed.

[*3]

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In his decision Judge Cutler posed the issue as whether McLean-Behm, as a subcontractor on a multi-employer job site, could be held liable for a hazard it did not create and for which it had no responsibility or control. After reviewing the history of the defense afforded construction subcontractors by Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976) and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 4409, 1976), the judge found McLean-Behm did not create or control the hazardous conditions in question and did not have the means to rectify them. He found McLean-Behm employed only ironworkers who, because of union jurisdictional rules and lack of expertise, could not erect railings or install a floor opening cover. He also found it would be a burdensome expense for McLean-Behm to hire carpenters or idle its employees until the general contractor abated the hazardous conditions.

The judge found it was impractical for McLean-Behm to instruct its employees to avoid the hazardous areas, [*4] as their work required them to be in the vicinity of the floor edges and opening. He also found that safety belts and lifelines were infeasible as alternate means of protection because there was no place to tie them off above the point of operation and to tie them off to the reinforcing bars would be impractical and dangerous. n3

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n3 In stating that safety belts need not be used where they cannot be tied off above the point of operation, the judge cited Isaacson Structural Steel Co., 75 OSAHRC 54/F2, 3 BNA OSHC 1138, 1974-75 CCH OSHD para. 19,592 (No. 1731, 1975). The Commission has since ruled that impossibility of compliance with 1926.104(b) (requiring that lifelines be secured above the point of operation) is not a defense to a complete failure to use safety belts, specifically overruling the contrary holding in Isaacson. F.H. Sparks of Maryland, Inc., 78 OSAHRC 13/C13, 6 BNA OSHC 1356, 1978 CCH OSHD para., 22,543 (Nos. 15472 and 15760, 1978). There is, however, evidence of other difficulties which the use of safety belts would present to McLean-Behm employees, and the Secretary, in his brief before the Commission, expressly declines to take exception to the judge's finding that the use of safety belts and life lines would have been infeasible. Accordingly, we assume for purposes of this decision that the use of safety belts was not a realistic alternative to compliance with the standards.

[*5]

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Finally, the judge observed that McLean-Behm did not bring the lack of guarding to the general contractor's attention. However, the judge found this was of no consequence. He reasoned that there was no evidence that a request for guarding would result in its installation sooner than scheduled, and it was therefore speculative whether such a request would be of any effect. Additionally, assuming McLean-Behm had notified the general contractor, such a defense would have been unavailing insofar as the alleged serious violation was concerned because Anning-Johnson, in footnote 23, reserved this defense for "certain minor situations." n4 The judge concluded that there were no viable or reasonable steps McLean-Behm could have taken to protect its employees from the hazards. Accordingly, he vacated both citations.

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n4 The judge did not address whether complaining to the general contractor would have been a defense to the nonserious citation, in view of footnote 23 in Anning-Johnson.

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II

On review the Secretary points out that Anning-Johnson requires the noncreating, noncontrolling subcontractor to do what is "realistic" under the circumstances to protect its employees from hazardous conditions. He agrees that McLean-Behm established it neither created nor controlled the unguarded edges. The Secretary also does not except to the judge's finding that both tying off and telling employees to avoid the hazardous areas were infeasible alternatives. However, he argues that McLean-Behm could have warned its employees of the existence of the floor opening and the unguarded edges through the placement of barrels, sawhorses, chains, or similar barriers around the unguarded areas. He urges further that the judge erred in finding, on the basis of footnote 23 of Anning-Johnson, that McLean-Behm had no duty to contact the general contractor concerning the unguarded floor perimeter. The Secretary explains that although this alternative measure is reserved for "minor situations," the footnote should not be read to mean that a subcontractor's attempt to have the general contractor remedy a serious violation can [*7] never be a realistic alternative measure. The Secretary further contends that the judge erred in dismissing notification of the general contractor as unrealistic on the grounds that it would only be a matter of speculation as to whether the general contractor would have erected guarding any sooner if requested to do so. The Secretary argues that in vacating the citations on the ground that the effect of such a request would only be speculative, the judge shifted the burden of proof on realistic alternative measures. That is, instead of the burden being on the subcontractor to prove that the measure was unrealistic, the judge has forced the Secretary to show that a particular abatement strategy was realistic.

While not disputing the facts which prompted the citations, McLean-Behm raises three arguments. It first argues that the Commission decisions in Anning-Johnson and Grossman Steel are in error in requiring a noncreating, noncontrolling subcontractor to use realistic alternative measures to protect its employees. Next, it contends that, assuming the propriety of requiring such measures, the judge properly concluded that no practical or viable alternatives existed, [*8] including complaining to the general contractor. More specifically, McLean-Behm states that it clearly understood when abatement was to occur on the third level based on its earlier discussions with the general contractor, its experience on the second floor (where the general contractor had erected guardrails after McLean-Behm's work had begun) and its general experience on similar jobs. McLean-Behm concludes, therefore, that it had no reason to believe a request to the general contractor would have expedited abatement since the general contractor had indicated by prior conduct how it would complete abatement.

Finally, McLean-Behm submits that none of its representatives with authority to demand action of the general contractor knew of the violations at the time of the inspection.

III

Our decisions in Anning-Johnson and Grossman Steel require a noncreating, noncontrolling subcontractor who is himself unable to abate hazards created by other contractors to take those realistic alternative measures which are available to protect his employees from the hazards. n5 Data Electric Co., 77 OSAHRC 28/C14, 5 BNA OSHC 1077, 1977-78 CCH OSHD para. 21,593 (No. 13122, 1977). In [*9] this case it is clear that McLean-Behm did not create or control the hazards, its employed had access to the violative conditions, and McLean-Behm had knowledge of the folations. n6 The record also establishes that for union jurisdictional reasons McLean-Behm could not have erected wooden guarding itself. However, the Secretary suggests that McLean-Behm should have attempted to protect its employees by complaining to the general contractor about its failure to erect guardrails. n7 We agree.

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n5 McLean-Behm initially complains that the Commission decisions in Anning-Johnson and Grossman Steel are in error for requiring a subcontractor to use realistic alternative measures. It urges the Commission to reconsider its position set out in those cases. However, inasmuch as those cases established a defense not previously available to employers and McLean-Behm presents no reason to reconsider those decisions, this argument is rejected. See Limbach Co., 77 OSAHRC 216/D14, 6 BNA OSHC 1244, 1246, 1977-78 CCH OSHD par. 22,467 (No. 14302, 1977).

n6 As noted, McLean-Behm argues lack of knowledge of the violative conditions. However, it was established that one of the two employees on the third level was a McLean-Behm foreman. His knowledge of the violative conditions establishes that the subcontractor had knowledge of the violative conditions. See Minnotte Contracting & Erection Corp., 78 OSAHRC 15/D4, 6 BNA OSHC 1370, 1371, 1978 CCH OSHD para. 22,551 (No. 15919, 1978) and cases cited therein. Furthermore, as McLean-Behm points out, it was the usual practice for McLean-Behm's employees to begin work on a floor before perimeter protection was erected. Thus, McLean-Behm should have known a similar situation would occur here.

n7 The Secretary also argues on review that McLean-Behm could have placed sawhorses, barrels, metal posts connected by chains or similar barriers around the unguarded floor edges and opening as an alternate means of protection. However there is no record evidence with respect to any of these devices. The Secretary neither suggested these alternative means of protection at the hearing nor did Respondent defend against them. In any event, we need not decide whether such barriers constitute an alternate means of employee protection, as we hold that McLean-Behm's defense fails on other grounds.

[*10]

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The judge's reasoning that a request to the general contractor would have been unrealistic is in rror as to both the serious and non-serious violations. The Commission has held that complaining to the creating or controlling contractor may not be adequate where another alternative measure, such as avoiding the violative conditions, is available to protect employees. Data Electric Co., supra. However, where no means are available for the subcontractor to physically protect its employees from the violative condition, it is incumbent upon the subcontractor to take the minimal step of complaining to the responsible contractor, regardless of whether the violations are serious or nonserious.

McLean-Behm argues, and Judge Cutler ruled, that according to footnote 23 of Anning-Johnson a subcontractor is not required to request the general contractor to abate a violation unless the violation is a minor one. McLean-Behm and Judge Cutler misapprehend the footnote's significance.

The import of the footnote is that, except in the case of minor violations, complaining to the general contractor is not [*11] by itself adequate when there are other alternative means of protection available. McLean-Behm's interpretation of the footnote would lead to the unreasonable result of requiring a subcontractor who has no other means to protect his employees from a hazard to request the general contractor to abate the hazard if the violation is minor but to do nothing if the violation is more severe. Clearly, Anning-Johnson did not purport to establish a rule leading to such a result.

Moreover, Anning-Johnson must be read in light of our decision in its companion case, Grossman Steel. There the Commission stated:

Simply because a subcontractor cannot himself abate a violative condition does not mean it is powerless to protect its employees. It can, for example, attempt to have the general contractor correct the condition. . . . We therefore expect every employer . . . to exert reasonable efforts to have [violations] abated or take such other steps as the circumstances may dictate to protect its employees.

4 BNA OSHC 1185, 1189 (emphasis added). Thus, Grossman Steel clearly does not require only subcontractors with minor violations to request the general contractor to abate [*12] them. Rather, it requires subcontractors faced with any type of violation to take "such other steps as the circumstances may dictate to protect its employees." In the present case the circumstances dictated that McLean-Behm request the general contractor to erect the guarding around the edges and the opening on the third floor to protect McLean-Behm's employees.

McLean-Behm maintains that its earlier discussions with the general contractor, its past experience on similar jobs, and its experience regarding the erection of guardrails on the second floor lead to the conclusion that a complaint registered with the general contractor would not have expedited abatement. McLean-Behm's conclusion is merely speculation. The fact that the general contractor erected guardrails on the second floor some time after McLean-Behm employees began working there does not prove the general contractor would begin erecting perimeter protection only after other work already had commenced on a floor. To the contrary, the fact that the general contractor did not begin erecting guardrails on the second floor until McLean-Behm employees began working there should have prompted McLean-Behm to attempt to [*13] have the general contractor erect guarding on the third floor before its employees began work on that floor. Thus, McLean-Behm failed to establish the defense made available to construction subcontractors by our decisions in Anning-Johnson and Grossman Steel.

IV

The Secretary proposed a penalty of $500.00 for the unguarded open-sided floor and a penalty of $35.00 for the unguarded floor opening. In applying the penalty assessment criteria of section 17(j) of the Act, n8 we note that McLean-Behm is a substantial business, having engaged in 241 construction jobs in the past five years. The record gives no indication of previous violations by McLean-Behm. McLean-Behm does not dispute the Secretary's characterization of the unguarded open-sided third floor as a serious violation. Since only two employees were exposed to this hazard and it was abated within three days, we find a penalty of $250.00 to be appropriate. We agree with the Secretary that the unguarded floor opening was a non-serious violation and agree that the proposed penalty of $35.00 is appropriate.

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n8 Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678.

[*14]

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It is therefore ordered that the judge's decision is reversed, the citations are affirmed, and a total penalty of $285.00 is assessed.

Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.

SEPARATE OPINION

As a new member of the Commission, I must resolve the issue of my participation in pending cases. It is also necessary for me to set out the principles guiding my decision on this important issue.

In this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision on the merits before I received my commission on May 1, 1978. A decision was already in preparation when I assumed office. I have concluded that the wisest exercise of discretion is to decline to participate in this case even though a new Commission member has authority to participate in pending cases. It should be emphasized that by declining to participate I express no opinion on the procedural or substantive issues in this case or on the appropriateness of the accompanying order.

Discretion of Commission Members

As a matter of [*15] law, it is not necessary for all Commission members to participate for an agency to take official action. In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied, 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating. The Court of Appeals rejected petitioner's contention that the FTC can act in its adjudicatory capacity only when all members participate, except when there is a vacancy. The court ruled that official action can be taken by the majority of the requisite quorum. Also Frischer & Co. v. Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930), cited approvingly in FTC v. Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of the Occupational Safety and Health Act, 29 U.S.C. 661(e), provides:

For the purposes of carrying out its functions under this chapter, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members.

Thus, the unanimous decision already reached in this case sutisfies the quorum and official action requirements of the Act and my participation is not [*16] necessary for the Commission to carry out its adjudicatory functions in this particular case.

However, it is also settled that a new member of an administrative agency may participate in pending cases. For example, a new member of the Civil Aeronautics Board who had not participated in previous proceedings was entitled to vote and break an existing tie where he had familiarized himself with the record. Western Air Lines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960). n1 In United the court indicate that, where a member voting with the majority without hearing oral argument "had the record before him and the benefit of briefs", there was no abuse of discretion in his participation. 281 F.2d at 56. There are numerous other cases supporting this holding. The clearest statement of law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):

The decisions of numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of [*17] the record before him. [footnotes omitted]

348 F.2d at 802. n2 See Au Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir. 1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir. 1976). Thus, a new member possesses the necessary authority to participate in all cases pending before the Commission on assuming office.

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n1 A Commissioner may vote simply to avoid an impasse. Public Service Commission of State of N.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).

n2 The Court distinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.), cert. denied, sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oral argument was statutorily required if a party requested it. 348 F.2d 798, 802 n. 14.

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Though a new member may participate in all pending cases, particularly those involving an impasse, the decision remains [*18] a matter of discretion since adjudicatory decisions may be upheld on a majority of a quorum. In FTC v. Flotill Prod., 389 U.S. 179 (1967), rev'g 358 F.2d 224 (9th Cir. 1966), an FTC member appointed to fill one of two vacancies declined to participate because he had not heard the oral argument. Thus, three of the possible four Commissioners actually participated in the decision. As a result, the FTC issued a cease-and-desist order based on the affirmative vote of only two members. Despite its obvious impact on the number of members constituting a majority, the Court did not review the exercise of discretion by the new member. Instead, the Court accepted the abstention at face value and upheld the action of the two members of the FTC. See also LaPeyre v. FTC, 366 F.2d 117 (5th Cir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition, administrative decisions involving two or more abstentions have been upheld by reviewing courts without question or comment on the grounds for these abstentions. All that was necessary to sustain the agency decision was a majority of the required quorum. E.g., Greater Boston Television Corp. [*19] v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971).

Decision Not to Participate

I decline to participate in this case because a majority of the Commission has reached agreement on the merits and my vote would have no effect on the outcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako have reached a unanimous decision, my participation would delay the issuance of decisions and conflict with the goal of a prompt and efficient decision-making process. See generally Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442, 97 S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir. 1975), citing 5 U.S.C. 555(b). Since abatement is stayed until the Commission enters a final order, 29 U.S.C. 659(b), additional deliberations would delay the control of hazardous working conditions in any case where the Commission has determined that a violation of the Act exists. That result would be inconsistent with the statutory purpose to assure so far as possible safe and healthful working conditions for every working man and woman. 29 U.S.C. [*20] 651(b).

I will, however, participate fully in all cases in which previous Commission deliberations have resulted in a one-to-one deadlock. Decisions by an equally divided Commission are without precedential value, e.g., Life Sciences Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission's administrative law judges. Moreover, these decisions also promote needless litigation in the U.S. Courts of Appeals to decide issues which should initially be determined by the Commission because its members have specialized training, education, and experience in occupational safety and health. 29 U.S.C. 661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone Roofing Co., Inc. v. OSHRC, supra at 963-964. Administrative resolution of pending issues also promotes a more uniform application and development of occupational safety and health law. After reading the record, I will participate in the consideration and decision of these cases.

Conclusion

My decision [*21] not to participate in pending cases which have reached a unanimous decision by my colleagues, but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases. The full benefit of Commission review is also assured the parties and the public. Both of these results are essential to protecting the lives, health and safety of American workers and the operation of American business while providing for the effective adjudication of cases by the administrative law judges.