MASONRY CONTRACTORS, INC.  

OSHRC Docket No. 76-2902

Occupational Safety and Health Review Commission

March 31, 1980

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

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge James D. Burroughs is before the Commission for review under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").

Respondent, Masonry Contractors, Inc., was installing the masonry work on the seventh floor of a building under construction in Athens, Georgia.   An inspection of the worksite by a compliance officer of the Occupational Safety and Health Administration resulted in the issuance of three citations to Respondent alleging violations of the Act.   Citation no. 1 alleged nonserious violations of the Act for failure to comply with the standards at 29 C.F.R. §   1926.451(d)(10), 29 C.F.R. §   1926.500(b)(1), 29 C.F.R. §   1926.500(b)(8), 29 C.F.R. §   1926.500(d)(1), and 29 C.F.R. §   1926.552(b)(2).   Citation no. 2 alleged a serious violation of the Act for failure to comply with 29 C.F.R. §   1926.500(d)(1).   Citation no. 3 alleged a repeat nonserious violation of the Act for failure to comply with 29 C.F.R. §   1926.401(a)(1).

As to citation no. 1, Judge Burroughs vacated the item alleging noncompliance [*2]   with the standard at section 1926.451(d)(10), the item alleging a violation of the standard at section 1926.500(b)(1) insofar as it pertained to an unguarded stairwell, as well as the item alleging a failure to comply with the standard at section 1926.500(b)(8) to the extent it involved a floor hole on the south side of the seventh floor. n1 The remaining items in citation no. 1 and the single item in citation no. 2 were affirmed as violations as alleged.   Citation no. 3, a single item citation concerning an allegedly ungrounded saw, was affirmed as a nonserious violation.   Judge Burroughs assessed penalties totaling $145 for the items affirmed in citation no. 1 as well as penalties of $500 and $25 for citations nos. 2 and 3, respectively.

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n1 No party has taken exception to these aspects of the judge's decision.

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Respondent filed a petition for discretionary review with the Commission.   In its petition, Respondent took exception to those items affirmed by the judge.   Chairman Cleary granted Respondent's petition on [*3]   the following issues:

(1) Whether the Administrative Law Judge erred in concluding that respondent subcontractor failed to establish the defenses set forth in the Commission decisions in Anning-Johnson Co. (Nos. 3694 & 4409, 1976) and Grossman Steel & Aluminum Corp. (No. 12775, 1976)?

(2) Whether the Administrative Law Judge erred in rejecting Respondent's assertion that compliance with the standard at 29 C.F.R. §   1926.500(d)(1) [Citation No. 2] was impossible and in affirming the citation alleging a serious violation of the Act for failure to comply therewith?

(3) Whether the Administrative Law Judge erred in affirming the citation alleging a nonserious violation of the Act for failure to comply with the standard at 29 C.F.R. §   1926.401(a)(1) [Citation No. 3] for failure to ground a concrete block saw in accordance with the standard's requirements?

Respondent and the Secretary filed briefs on review.   For the reasons that follow, we affirm the judge's disposition of citations nos. 1 and 2, but reverse as to citation no. 3.

Citation No. 1 and the Anning-Johnson/Grossman Steel Affirmative Defense

Judge Burroughs affirmed the following items in citation no. 1 as   [*4]   nonserious violations of the Act: failure to guard an elevator shaft with a standard railing in violation of 29 C.F.R. §   1926.500(b)(1); failure to guard a floor hole on the north side of the seventh floor in violation of 29 C.F.R. §   1926.500(b)(8); use of a chain supported by an inadequate number of posts to guard the open east end of the seventh floor as well as a failure to guard an open portion of the north end of the seventh floor with a standard railing, both instances in violation of 29 C.F.R. §   1926.500(d)(1); and a failure to guard the hoist on the south side of the seventh floor with substantial gates or bars covering the full width of the landing entrance in violation of 29 C.F.R. §   1926.552(b)(2).   The judge found that the evidence established the existence of the noncomplying conditions and the exposure of Respondent's employees to the resulting hazards. The judge further found that Respondent failed to establish the affirmative defense set forth in the Commission decisions in Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409, 1976), and Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH [*5]   OSHD P20,691 (No. 12775, 1976), because (1) no inspection to discover violations was made by Respondent prior to the commencement of work by its employees, (2) Respondent gave no warning to its employees as to the hazards they might encounter, and (3) Respondent did not bring the violations to the attention of the general contractor so that they might be corrected before its employees were exposed to the hazards.

On review, Respondent argues that the judge erred in holding it responsible for the violations.   Respondent asserts that it was the general contractor's duty to detect and correct the violative conditions and that, in fact, the general contractor abated the violations during, or shortly after, the inspection. Respondent argues that it neither created nor controlled the violative conditions and that it was not in a position to comply with the cited standards.   Respondent further argues that there were no realistic alternative safety measures available to it to protect its employees. n2 Respondent does not dispute on review the judge's findings that the violative conditions existed and that Respondent's employees were exposed to the hazards.

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n2 Respondent, relying on former Commissioner Moran's dissent in Anning-Johnson, supra, also states that the Commission decisions in Anning-Johnson and Grossman Steel display "an absolute disregard of the sound rationale in Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Circuit 1975), in adopting a policy that contains the very pitfalls which the circuit court intended to eliminate by its decision." We note, however, that inasmuch as these Commission decisions established a defense not previously available to employers, and Respondent has presented no reason to reconsider those decisions, Respondent's argument must be rejected.   McLean-Behm Steel Erectors, Inc., 78 OSAHRC 54/A2, 6 BNA OSHC 1712, 1715 n.5, 1978 CCH OSHD P22,812, at p. 27,571 n.5 (No. 76-2390, 1978).

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The Secretary argues on review that the judge correctly found that Respondent failed to establish the Anning-Johnson/Grossman Steel affirmative defense. The Secretary asserts that Respondent took no measures to discover the noncomplying conditions or to protect   [*7]   its employees from the resulting hazards. In addition, the Secretary notes that with regard to the unguarded open-sided floor on the north end of the building, Respondent created the hazard by removing guardrails that had already been erected.

In Anning-Johnson and in Grossman Steel we held that where the usual elements of employer liability are established, a subcontractor on a multi-employer construction site who neither created nor controlled a violative condition, and thus, lacked the ability to abate the condition within the literal terms of the standard, may defend affirmatively by showing that it took realistic steps to protect its employees as an alternative to literal compliance.   Accord, Williams Enterprises of Georgia, Inc., 79 OSAHRC 92/A2, 7 BNA OSHC 1900, 1979 CCH OSHD P24,003 (No. 13875, 1979).   In the present case, even if it is assumed that Respondent lacked the ability to abate the violations within the terms of the standard, we agree with Judge Burroughs that Respondent did not take any appropriate steps to protect its employees as an alternative to literal compliance with the standard.

Testimony at the hearing indicated that, contrary to his custom,   [*8]   Respondent's foreman did not examine the seventh floor for hazards before work was commenced on that floor by Respondent's employees, nor did he warn the employees as to the hazards they might be expected to encounter.   In addition, before the violative conditions were detected by the OSHA inspector, Respondent neither requested the general contractor to correct the conditions nor provided alternative means of protection to its employees.

We specifically reject Respondent's argument that a request to the general contractor to correct these nonserious violative conditions would have been "meaningless." This speculation is belied by the testimony of the general contractor's superintendent as to the general contractor's willingness to remedy problems and the fact that the violations were abated shortly after they were brought to the general contractor's attention.   See McLcan-Behm Steel Erectors, Inc., 78 OSAHRC 54/A2, 6 BNA OSHC 1712, 1978 CCH OSHD P22,812 (No. 76-2390, 1978).   In addition, Respondent's argument that its employees could not have been protected by use of safety belts, lifelines, and lanyards simply because it was not possible to tie off above the point of [*9]   operation has previously been rejected.   F.H. Sparks of Maryland, Inc., 78 OSAHRC 13/C13, 6 BNA OSHC 1356, 1978 CCH OSHD P22,543 (Nos. 15472 & 15760, 1978).   Therefore, we affirm the judge's conclusion that Respondent failed to establish the Anning-Johnson/Grossman Steel affirmative defense.

Furthermore, with respect to the unguarded open-sided floor at the north end of the building, we agree with Judge Burroughs that Respondent created the hazard by removing the guardrail. Therefore, because Respondent is not able to make the threshold showing necessary for the Anning-Johnson/Grossman Steel defense, that is, being a non-creating, non-controlling subcontractor, the affirmative defense is not even applicable to the circumstances of this item.   Respondent is responsible for this violation on the basis of the exposure of its employees to a violative condition that it created. n3

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n3 On review, Respondent raises no further defense to this item.   The defense of impossibility raised on review pertains only to the serious violation of the Act for failure to comply with 29 C.F.R. §   1926.500(d)(1) alleged in citation no. 2.

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Citation No. 2 and the Impossibility Defense

Citation no. 2 alleged a serious violation of the Act for failure to comply with 29 C.F.R. §   1926.500(d)(1). n4 The facts found by the judge concerning this citation are not disputed by Respondent.   They are as follows.   The perimeter of the north side of the seventh floor between the material hoist and the east end of the floor was not guarded by a standard railing or the equivalent.   Respondent's employees were laying concrete blocks along the edge of the floor in this area.   The distance from the edge of the seventh floor to the ground was approximately 62 feet.   A guardrail had been erected by the general contractor along the edge of the floor but it leaned toward the interior of the floor and interfered with the construction of the wall being erected by Respondent's employees.   Respondent's employees removed the guardrails in order to erect the wall.   If the guardrails had been erected properly by the general contractor, they would not have interfered with Respondent's work.

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n4 The cited standard provides:

§   1926.500 Guardrails, handrails, and covers.

* * *

(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.

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On review, Respondent argues that the judge erred in rejecting its argument that the citation must be vacated because it "was impossible for Respondent to comply with [29 C.F.R. §   1926.500(d)(1)] . . . and still accomplish the work it was under contract to do".   Respondent cites the Commission decisions in W.B. Meredith, II, Inc., 74 OSAHRC 39/A2, 1 BNA OSHC 1782, 1973-74 CCH OSHD P18,003 (No. 810, 1974), and Robert W. Setterlin & Sons   [*12]    Co., 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD P20,682 (No. 7377, 1976), in support of its argument.

The Secretary argues on review that there is no merit to Respondent's assertion that the wall could not have been erected with a guardrail in place.   The Secretary asserts that, while construction of the wall was impeded by the guardrail that leaned toward the interior of the building, the evidence shows that erection of the wall was possible when a properly erected guardrail was in place.

We affirm the judge's finding of a serious violation. In order to establish a defense of impossibility as to either compliance or performance, an employer must prove that (1) compliance with the requirements of the cited standard either would be functionally impossible or would preclude performance of required work, and (2) alternative means of employee protection are unavailable.   M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979).

In this case, the evidence establishes that the wall being erected by Respondent could not have been completed with the inward leaning guardrail in place.   The evidence also establishes, however, that [*13]   after the general contractor was notified a proper guardrail was installed and the construction of the wall was completed with the guardrail in place.   Thus, we find that, unlike W. B. Meredith, supra, or Robert W. Setterlin, supra, in the present case compliance with the cited standard was neither functionally impossible nor would it have precluded performance of the required work.   Furthermore, Respondent also has failed to establish that alternative means of employee protection were unavailable for use during the time that its employees were exposed to the hazard of a 62 foot fall.   Therefore, Respondent has failed to establish both elements of the impossibility defense and the citation must be affirmed. n5

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n5 To the extent Respondent asserts the Anning-Johnson/Grossman Steel affirmative defense with respect to Citation no. 2, we note simply that, as with the nonserious violation of 29 C.F.R. §   1926.500(d)(1) involved in citation no. 1, the Anning-Johnson/Grossman Steel defense is not applicable because Respondent created the violative condition by removing existing guardrails.

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Citation No. 3 - the Concrete Block Saw

Citation no. 3 alleged a repeat nonserious violation of the Act for failure to comply with 29 C.F.R. §   1926.401(a)(1) n6 for Respondent's alleged failure to ground a concrete block saw being used on the seventh floor. The compliance officer testified that, when he attempted to unplug the saw he touched the metal parts of the saw and received an electrical shock.   He further testified that when he checked the saw's motor with a woodhead tester, the presence of an open ground was indicated.   On cross-examination, the compliance officer stated that the saw was equipped with a three-wire cord and that the cord was plugged into a three-prong receptacle. The compliance officer stated that this is the customary method of providing grounding to prevent the hazard of electric shock.   Respondent's foreman testified that after the compliance officer was shocked, the saw was examined by Respondent's electrician.   The electrician could not find an open ground.   Respondent's foreman verified the compliance officer's testimony that the saw was plugged into a three-prong [*15]   receptacle using a three-wire plug.   Respondent's president also testified that subsequent to the inspection "his people" inspected the saw but could find nothing wrong with it.

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n6 The cited standard provides:

§   1926.401 Grounding and bonding.

(a) Portable and/or cord and plug-connected equipment.   (1) The non-current-carrying metal parts of portable and/or plug-connected equipment shall be grounded.

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The judge found a nonserious violation of the Act for failure to comply with the cited standard.   The judge concluded that the compliance officer's testimony was more credible concerning the presence of a shock hazard. He noted that Respondent had not tested the saw while it was connected to the seventh floor receptacle, and stated that Respondent "ignored the fact that the electrical circuit into which the saw was plugged may not have been properly grounded."

Respondent argues on review that the evidence does not establish a failure to properly ground the saw.   Respondent notes that although the Secretary's evidence [*16]   indicates that the compliance officer was shocked and that an open ground was present, its evidence shows that the saw was connected to a three-prong receptacle, that its employee was not shocked, and that the equipment was inspected and found to have no malfunction.

On review, the Secretary argues that there is no basis for Respondent's argument that it complied with the standard.   The Secretary states that the standard requires "effective" grounding. n7 He submits that the judge's "credibility finding" that the saw was not effectively grounded should not be disturbed.

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n7 Respondent was cited for a failure to comply with section 1926.401(a)'s requirement that equipment "shall be grounded".   The requirements for "effective grounding" are stated in section 1926.401(c).   In this case the Secretary alleged and, as discussed infra, failed to establish a violation of section 1926.401(a).

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We reverse the judge's finding of a failure to comply with section 1926.401(a) and vacate the citation and penalty.   On the record [*17]   in this case, although the judge's finding that the compliance officer was shocked is supported, it has not been shown that the open ground existed in Respondent's saw.   To the contrary, the preponderance of the evidence indicates that the lack of a ground did not exist in Respondent's saw.   Therefore, the reasonable inference to be drawn is that the lack of a ground detected by the inspector existed in the circuit into which Respondent's saw was plugged. The Secretary has failed to establish the violation alleged in the citation, that is, that Respondent failed to ground the non-current carrying metal parts of its concrete block saw.   Accordingly, the citation for failure to comply with section 1926.401(a) is vacated. See also 4G Plumbing & Heating, Inc., 78 OSAHRC 29/B8, 6 BNA OSHC 1528, 1978 CCH OSHD P22,658 (No. 12892, 1978) (plumbing contractor on multi-employer construction site held not responsible for open ground in wall receptacle).

Penalties

We have reviewed the judge's application of the penalty criteria of section 17(j) of the Act, 29 U.S.C. §   666(i), to the facts of this case and find the penalties assessed to be appropriate.   Accordingly, we affirm   [*18]   his penalty assessment with regard to citation nos. 1 and 2.   In light of our conclusion as to citation no. 3, the penalty for that citation is vacated.

Conclusion

The judge's findings of nonserious violations of the Act for failure to comply with the standards at 29 C.F.R. § §   1926.500(b)(2), 1926.500(b)(8), 1926.500(d)(1), and 1926.552(b)(2) and the penalties assessed therefor are affirmed.   The judge's finding of a serious violation of the Act for failure to comply with the standard at 29 C.F.R. §   1926.500(d)(1) and the penalty assessed therefor is also affirmed.   The judge's finding of a nonserious violation for failure to comply with 29 C.F.R. §   1926.401(a) is reversed and the citation and penalty are vacated.

So ORDERED.