ERSKINE-FRASER CO.  

OSHRC Docket No. 76-5203

Occupational Safety and Health Review Commission

October 31, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Reg. Sol., USDOL

Ira J. Smotherman, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John J. Larkin is before the Commission pursuant to 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").   In his decision, Judge Larkin affirmed a citation alleging that Respondent violated the Act by failing to comply with the standard at 29 C.F.R. §   1926.500(d)(1) n1 and assessed a penalty of $100.   Chairman Cleary granted Respondent's petition for review of the judge's decision.   We affirm Judge Larkin's decision.

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n1 29 C.F.R. §   1926.500(d)(1) provides:

§   1926.500 Guardrails, handrails, and covers.

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(d) Guarding of open-sided floors, platforms, and runways. (1) Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be quarded by a standard railing, or the equivalent, as specified in paragraph (f)(1) 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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Respondent is a Georgia construction firm specializing in steel erection.   In 1976, Respondent contracted with a joint venture, Bellamy Brothers and Gentry & Thompson, to lower several concrete girders onto concrete piers. The project was part of the rail transit system in Atlanta.

Under the contract, Respondent supplied the labor while the joint venture, as general contractor, provided the staging, scaffolds, jacks, and other equipment necessary for the job.   The joint venture was also responsible for erecting any guardrails on the construction site.   Respondent's employees were governed by the joint venture's overall safety program.   However, the specific actions of Respondent's employees were directed by Respondent's foreman, who was also responsible for their immediate safety.

During an inspection of the worksite by a compliance officer of the Occupational Safety and Health Administration, employees of the Respondent were seen walking on a concrete girder. The girder was over one hundred feet long and eighteen to twenty feet wide.   It was supported by three concrete piers twenty-eight to thirty [*3]   feet high.   The girder was not equipped with guardrails to protect the workers from falling.   Although Respondent's employees were wearing safety belts, the belts did not provide fall protection because there was no place to attach the belts while the employees were on the girder.

The work associated with lowering the girders was performed by Respondent's employees from platforms attached to the concrete piers. They gained access from the ground to a pier by means of a ladder. They would then use the girder as a walkway to get from one pier to another, and it was while they were doing so that they were observed by the compliance offioer.   Respondent's workers also used the surface of the girder to store tools that were not in use.

II

Respondent advanced several arguments in its brief to the administrative law judge.   First, Respondent claimed that it was not the employer of the exposed employees and that the general contractor should have been held responsible since it had control of the workers on the worksite. Respondent also argued that it could not be held responsible for the absence of guardrails since it neither created nor controlled the hazardous condition. Respondent [*4]   took direct issue with the Commission's holdings in Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409, 1976) ("Anning-Johnson"), and Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976) ("Grossman Steel"). In Anning-Johnson and Grossman Steel the Commission held that each employer at a multi-employer construction site is responsible for the safety of its own employees.   The Commission also held, however, that an employer who did not create or control a noncomplying condition would not be held liable under the Act when its employees were exposed to the condition if the employer either (1) took reasonable alternative measures to protect its employees or (2) did not know and could not have known that the cited condition was hazardous. Respondent contended that the requirement to take reasonable alternative measures is too vague because it does not give an employer adequate notice about what alternative measures will bring him into compliance with the Act.   Therefore, Respondent argued, the requirement that an employer take realistic alternative measures "blatantly [*5]   violate(s) the requirements of due process of law."

However, even accepting the holdings in Anning-Johnson and Grossman Steel, Respondent contended that no reasonable alternative methods to protect its employees existed.   Respondent asserted that the testimony demonstrated it had "leaned on" the general contractor to erect the guardrails but to no avail.   Respondent argued that, short of the unrealistic alternative of walking off the jobsite, it had done all it could to protect its employees.

Judge Larkin affirmed the citation.   In doing so, Judge Larkin found that the exposed workers were employees of the Respondent for purposes of the Act.   Applying the Commission's holdings in Anning-Johnson and Grossman Steel, the judge found that Respondent had failed to meet its burden of showing that a reasonable alternative was not available. n2 Judge Larkin inferred from the evidence that Respondent could have used the ladders available at the jobsite to gain access to the piers instead of allowing its employees to use the unguarded girder as a walkway between piers.

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n2 In his opinion, Judge Larkin made certain gratuitous remarks about Commission precedent.   These remarks were unnecessary and irrelevant.

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On appeal to the Commission, Respondent essentially repeats its previous arguments.   Respondent also claims on review, however, that its employees were not exposed to the hazardous sides of the girder, relying on a finding by the judge that "there is no credible evidence of record that Respondent's employees were exposed to the sides." n3

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n3 The judge made this statement in connection with his penalty assessment.   He relief on this finding to conclude that the gravity of the violation was low, thereby reducing the penalty from the $600 proposed by the Secretary to $100.

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III

We reject Respondent's arguments and affirm the decision of the administrative law judge.   The rationale of Anning-Johnson and Grossman Steel has been consistently applied by the Commission and has been upheld in those court of appeals that have considered the question. n4 Respondent's arguments do not persuade us to depart from the rules established in   [*7]   Anning-Johnson and Grossman Steel.

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n4 Beatty Equipment Leasing, Inc, v. Secretary of Labor, 577 F.2d 534 (9th Cir. 1978); Central of Georgia R.R. v. OSHRC, 576 F.2d 620 (5th Cir. 1978); Marshall v. Knutson Const. Co. 566 F.2d 596 (8th Cir. 1977); Stahr & Gregory Roofing Co., 79 OSAHRC 2/B12, 7 BNA OSHC 1010, 1976-77 CCH OSHD P21,456 (No. 76-88, 1979); Limbach Co., 77 OSAHRC 216/D14, 6 BNA OSHC 1244, 1977-78 CCH OSHD P22,467 (No. 14302, 1977).

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The element of the Anning-Johnson and Grossman Steel defense that a noncontrolling, noncreating employer take realistic alternative measurements to protect its employees is not unconstitutionally vague. In arguing that the requirements of the multi-employer worksite defense are too vague, Respondent cites several cases in which a court found that an occupational safety and health standard did not given an employer sufficient notice about the type of forbidden conduct.   That is not the situation in this case.

Here, the rule in question is not [*8]   a standard.   The rule is an affirmative defense, created by the decisions of the Review Commission and available to employers on multi-employer worksites.

In Grossman Steel, the Commission outlined what it expected from subcontractors who neither created nor controlled the hazardous condition:

We therefore expect every employer to make a reasonable effort to detect violations of standards not created by it but to which its employees have access and, when it detects such violations, to have them abated or take such other steps as the circumstances may dictate to protect its employees.   In the absence of such action, we will still hold each employer responsible for all violative conditions to which its employees have access. n5

4 BNA OSHC at 1189, 1975-76 CCH OSHD at 24,791.

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n5 See also Anning-Johnson, 4 BNA OSHC at 1199, 1975-76 CCH OSHD at 24,784, in which the Commission said a violation of the 29 C.F.R. §   1926.500(d)(1) had been established but that "(Respondent) effectively protected its employees by means of realistic measures taken as an alternative to literal compliance" and so vacated the citations.

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Under Anning-Johnson and Grossman Steel the Commission allows the employer to show that although the employer was not in literal compliance with the cited standards it took alternative steps to protect its employees.   The Commission thus placed reasonable limits on the extent to which an employer must prevent exposure to noncompliant conditions over which it has no control.   This is not a vague requirement.   Section 5(a)(2) of the Act puts employers on notice that they are not to expose employees to conditions contravening the standards.   We are merely enforcing that requirement while making provision for circumstances in which the employer shows that the exposure could not have been prevented through literal compliance with the standard. n6

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n6 The Commission cannot possibly envision every reasonably available measure employers might use to protect their employees when an employer confronts a hazardous condition which it did not create or control.   Therefore, what is accepted as a realistic alternative measure to literal compliance has been and will continue to be developed by Commission case law.   See, e.g., McLean-Behm Steel Erectors, Inc. 78 OSAHRC 54/A2, 6 BNA OSHC 1712, 1978 CCH OSHD P21,321 (No. 76-2390, 1978); Emile M. Babst Co., Inc. 77 OSAHRC 152/A2, 5 BNA OSHC 1698, 1977-78 CCH OSHD P22,037 (No. 13980, 1977); Paramount Plumbing and Heating Co., Inc. 77 OSAHRC 79/D14 5 BNA OSHC 1459, 1977-78 CCH OSHD P21,820 (No. 12652, 1977); Data Electric, Inc. 77 OSAHRC 28/C14, 5 BNA OSHC 1077, 1977-78 CCH OSHD P21,593 (No. 13122, 1977).

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In this case, the Respondent did not meet its burden of showing that it took realistic measures to protect its employees.   The project manager testified that Respondent said nothing to him about the lack of guardrails. Although one of Respondent's employees testified that he spoke to an employee of the general contractor about guardrails, the conversation did not focus on the specific hazard in this case nor was it directed to an employee of the general contractor with sufficient authority to change the condition.   Thus, Respondent did not take adequate steps to obtain the installation of guardrails by the responsible contractor.   See McLean-Behm Steel Erectors, Inc., 78 OSAHRC 54/A2, 6 BNA OSHC 1712, 1978 CCH OSHD P21,321 (No. 76-2390, 1978).   In addition, Respondent offered no testimony to establish the existence of any other alternative measure it took to protect its employees.

We also reject Respondent's argument that its employees were not exposed to the unguarded sides of the girder. The Commission has held that employees are exposed to a violative condition if they have access to the [*11]   hazardous area.   Otis Elevator Co., 78 OSAHRC 88/ES, 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978).   In this case, photographic exhibits and direct testimony showed that Respondent's employees were on the girder. The compliance officer testified that workers were "right at the edge" and "all over the top of the slab." Even Respondent's foreman testified that it was "very possible" that the employees could come within a foot of the edge when walking on the girder. n7 Under the circumstances, the employees were exposed to the girder sides.

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n7 Commissioner Barnako agrees that the appropriate test for employee exposure is whether employees have access to the violative conditions.   Otis Elevator Co., supra (separate opinion); Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976).   He would, however, require the Secretary to establish such access by evidentiary facts.   Id. Commissioner Barnako therefore would not find that employees had access to the unguarded edges simply by virtue of their presence on the eighteen to twenty foot wide girder. However, based on the foreman's testimony that the employees possibly came within one foot of the edge while walking on the girder, Commissioner Barnako finds that Respondent's employees had access to the sides of the girder in this case.

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Accordingly, for the reasons stated above, the judge's decision is affirmed.

SO ORDERED.