SUNRISE PLASTERING CORP.  

OSHRC Docket No. 78-0846

Occupational Safety and Health Review Commission

July 18, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Russell Porter, Sunrise Plastering Corp., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Seymour Fier is before the Commission for review 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 Fier affirmed a citation alleging that the Respondent, Sunrise Plastering Corporation, failed to comply with 29 C.F.R. §   1926.500(b)(1) in that several floor openings located throughout a twelve-story building under construction were not guarded by standard guardrails or covered.   The floor openings at issue fell into three categories: elevator shaft, stairwell, and air duct openings. Although the Respondent petitioned for review of Judge Fier's decision, it did not raise any specific issues in its petition to be considered by the Commission and did not file a brief on review.   However, the direction for review, issued by Commissioner Barnako in response to the petition, raised [*2]   the following issues:

(1) Whether the judge erred in concluding that in the circumstances the Respondent could have prevented the hazardous conditions to which its employees were exposed.

(2) Whether the Respondent has established the defense enunciated 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 OSHD P20,691 (No. 12775, 1976).

Accordingly, our review is limited to a resolution of these issues. n1

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n1 Any issue neither raised in a petition for review nor directed for review by an individual member upon his own motion, see Commission Rule of Procedure 92(c), 44 Fed. Reg. 70,106 at 70.111 (1979), to be codified in 29 C.F.R. §   2200.92 [formerly Rule 91a(c), 29 C.F.R. §   2200.91a(c)], is not before the Commission on review.

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In his decision, Judge Fier found that the Respondent was aware of and "could have . . . corrected" the cited working conditions. n2 He further [*3]   found that the Respondent has assumed responsibility for installing the necessary protection throughout the building.   Based on these findings, he concluded that the Respondent was not "relieved of responsibility" under the principles of multi-employer worksite liability set forth in Anning-Johnson Co., supra, and Grossman Steel & Aluminum Corp., supra. For the reasons stated in this decision, we conclude that the judge's findings of fact are supported by a preponderance of the evidence and that his conclusions of law are correct under Commission precedent.   Accordingly, his order is affirmed.

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n2 The judge also found that the conditions were not in compliance with §   1926.500(b)(1) and that the Respondent's employees were exposed or had access to them.   These findings are not at issue due to the limited scope of the direction for review.

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In Anning-Johnson, Grossman Steel, and numerous cases decided since the issuance of those decisions, the Commission has developed clear guidelines for determining [*4]   when an employer acting as a subcontractor on a multi-employer worksite is liable for noncompliance with occupational safety and health standards.   Thus, where the usual elements of employer liability are established, some but not all subcontractors may assert a limited affirmative defense as defined in the case law.   This defense is available to subcontractors who neither create nor control the violative condition and thus lack the ability to abate the condition within the literal terms of the standard.   Accordingly, a subcontractor asserting the Anning-Johnson / Grossman Steel defense must make a threshold showing that it is a "non-creating", "non-controlling" employer.   If the subcontractor does not make this showing, the defense is not even applicable to the circumstances and the employer is liable for the violation on the basis of the exposure of its employees to and its creation of control of the violative conditions.   See generally, Masonry Contractors, Inc., 80 OSAHRC    , 8 BNA OSHC 1155, 1157-58, 1980 CCH OSHD P24,338 at pp. 29,657-58 (No. 76-2902, 1980).

In the case now under review, the testimony of the Respondent's president establishes that the Respondent [*5]   was the "controlling" employer within the meaning of Commission precedent.   It establishes that the Respondent had contractual responsibility to do all of the carpentry work on the project and all of the "OSHA work", that is, the work necessary to bring the project into compliance with standards under the Act.   In accordance with this responsibility, the Respondent assertedly placed covers on all of the floor openings throughout the building at an early stage in the construction project.   At that time, according to the Respondent's president, the worksite was in compliance with section 1926.500(b)(1).   The Respondent then removed its employees from the worksite for an unspecified period of time.

Two or three weeks prior to the inspection that resulted in the citation at issue the Respondent returned to the worksite. It discovered that much of the work it had previously done had been undone in that several covers had been removed to allow other subcontractors to install elevator shafts and perform other necessary work.   At the hearing, the Respondent's president testified that the Respondent did not "necessarily" have contractual responsibility for maintaining the worksite in a state [*6]   of compliance with the Act.   Nevertheless, he further testified that the general contractor requested the Respondent to undertake this responsibility and that the Respondent attempted to meet this responsibility, doing "our best" to provide protection where covers had been removed by other subcontractors. n3

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n3 We further note the testimony of the compliance officer that, before the walkaround inspection had even ended, the Respondent's employees began work on installing the missing protection.

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Based on this record, we affirm the judge's findings that the Respondent was aware of the violative conditions, that it could have corrected the conditions, and that it had assumed responsibility on the project for installing the necessary protection.   Based on these findings and the additional finding that the Respondent's employees were exposed to the violative conditions, see note 2 supra, we affirm the judge's conclusion that the Respondent was liable for the noncompliance with section 1926.500(b)(1) and thus in violation [*7]   of the Act.   Accordingly, we affirm Judge Fier's decision and order.

SO ORDERED.