WEISBLATT ELECTRIC COMPANY, INC.

OSHRC Docket No. 79-2537

Occupational Safety and Health Review Commission

May 18, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

I. Wolf Weisblatt, Weisblatt Electric Company, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

The only issue in this case is whether Respondent, Weisblatt Electrical Company (Weisblatt"), a subcontractor on a multi-employer construction site, took reasonable steps to protect its employees from violative conditions that it neither created nor controlled. We find that Weisblatt did take such steps and vacate the citations.

I.

Weisblatt had been engaged to install an elevator in a six-story building that was apparently undergoing renovation. On the day the alleged violations occurred, two of Weisblatt's employees had returned to the site after a ten-day absence. According to Weisblatt's president, the company "must have left [the worksite] six or seven times, not only for safety [reasons] but for the whole general tenor and the processing of the job." He stated that the general contractor "would call us in, [but] they weren't prepared for us to work or it was just a horrible condition." The president declared that the employees had returned to [*2] the worksite to determine "what the conditions were and [to] make a decision as to whether we stay or we will not stay."

About a half-hour after Weisblatt's employees arrived at the site for this purpose, but before they had begun to work, they met a compliance officer representing the Secretary of Labor who was inspecting the site based on a complaint of unsafe working conditions. The compliance officer testified that he told Weisblatt's employees that they had already been exposed to two falling hazards by walking up an unguarded ramp to the first floor of the building and walking near the unguarded open side of the first floor. The compliance officer also testified that the two employees were exposed to the hazards presented by unguarded floor openings on the first floor. At the request of Weisblatt's foreman, he agreed to inspect their work area on the fourth floor after he interviewed the general contractor. Subsequently, the general contractor began to install a railing on the access ramp. The compliance officer later inspected Weisblatt's work area and advised Weisblatt's employees that the area was safe. However, he also told them that they had been exposed to falling [*3] and tripping hazards on the stairways they had used to get to the fourth-floor work area; the hazards resulted from the lack of railings on the stairs and absence of material in the hollow pan-type treads on the individual risers. Weisblatt's president testified that its employees would not have remained on the site if the compliance officer had not been present.

As a result of the inspection, the Secretary issued two citations alleging that Weisblatt violated section 5(a)(2), 29 U.S.C. 654(a)(2) of the Occupational Safety and Health Act of 1971, 29 U.S.C. 651-678 ("the Act"). Citation 1 alleged that Weisblatt had failed to comply with 29 C.F.R. 1926.500(b)(1) (unguarded floor openings), (d)(1) (unguarded open-side floor), (d)(2) (unguarded runway), and (e)(1)(ii) (unguarded stairs). Citation 2 alleged a failure to comply with 29 C.F.R. 1926.501(f) (unfilled pan-type treads). The Secretary proposed a total penalty of $1,500 for the violations alleged in citation 1 and $0 for the violation alleged in citation 2.

Weisblatt did not deny before the judge the these violative conditions existed. Instead, its president argued at the hearing that it neither created nor controlled [*4] the hazards. Weisblatt's president argued that the company had complained to the general contractor about conditions at the worksite, and that its employees were on the worksite to determine whether the conditions made it safe to work. If it was not safe to work, it was company policy to leave the job.

Judge Ditore affirmed both citations. He assessed a penalty of $650 for the serious citation and no penalty for the nonserious citation. He found that Weisblatt's employees were exposed to the violative conditions and that Weisblatt neither created nor controlled the conditions. The judge noted that Weisblatt's instructions were very general and that its employees were instructed during the inspection "to make the safety determinations, and to ascertain what [the compliance officer] had to say about [Weisblatt's] specific work area." the judge concluded that apart from the general instructions, Weisblatt did not make a reasonable effort to protect its employees.

Weisblatt filed a petition for review, arguing that it did not create the hazards and could not contractually abate them and, therefore, the only means of protecting its employees was to remove them from the worksite. [*5]

Commissioner Cottine directed review of all the issues raised by Weisblatt's petition, including whether Weisblatt, as a subcontractor on a multi-employer construction site, took sufficient steps to protect its employees from safety hazards at the site.

In its brief on review, the Secretary contends that Weisblatt's general admonition to leave the worksite when conditions were unsafe was inadequately communicated and enforced. He also argues that Weisblatt cannot divest itself of responsibility for its employees' exposure to violative conditions by delegating that responsibility to its foreman, unless it shows that its foreman received adequate training and supervision in safety matters.

II.

In allocating employer responsibility at multi-employer construction worksites, the Commission has established an affirmative defense for certain subcontractors. If a subcontractor on a multi-employer worksite neither created nor controlled a hazardous condition, it may defend against a citation by showing either (a) that its employees who were exposed to the hazard were protected by realistic measures taken as an alternative to literal compliance with the cited standard, or (b) that it [*6] did not have nor with the exercise of reasonable diligence could have had notice that the condition was hazardous. See Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1198, 1975-76 CCH OSHD P26,690, p. 24,783 (No. 4409, 1976). Subcontractors are also expected to have made a reasonable effort to detect violations and to have exerted reasonable efforts to have them abated. Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1188, 1975-76 CCH OSHD P20,691, p. 24,791 (No. 12775, 1976). In determining whether a subcontractor has made reasonable efforts, we look to its overall conduct, rather than to any single act. See Electric Smith, Inc. v. Secretary of Labor, 666 F.2d 1267, 1274 (9th Cir. 1982).

It is undisputed that Weisblatt neither created nor controlled the cited conditions. It is also unrebutted that Weisblatt had taken its employees off the worksite on six or seven occasions because of conditions on the worksite, and had complained to the general contractor about conditions on the site. Its employees whose presence on the site gave rise to the citations, were there as an inspection party charged with determining whether conditions [*7] had improved so that work could continue. Indeed, they took advantage of the compliance officer's presence on the worksite to ask him to examine the safety of the elevator shaft they were to work in. To find violations here would mean that an employer must issue instructions to employees he orders to inspect a multi-employer construction site that would make it nearly impossible for them to conduct such an inspection. Weisblatt's inspection party would not have been able to get to the site by using the unguarded ramp, but would have been required to report the hazard to the general or controlling contractor, and then return to the site to continue the inspection. Such an approach would place an unreasonable burden on subcontractors, and would make it difficult for them to properly evaluate a multiemployer worksite and try to have noncomplying conditions corrected. In view of all the circumstances, we conclude that Weisblatt has shown that it took reasonable steps to protect its employees.

Accordingly, the judge's decision is reversed. Citations 1 and 2 are vacated.

SO ORDERED.