v. DOCKET NO. 16256






Before: CLEARY, Chairman; and BARNAKO, Commissioner.


A decision of Review Commission Judge Seymour Fier is before the Commission for

review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C.

§ 651 et seq. [‘the Act’]. At issue is whether the Judge erred in concluding that respondent is not

liable for two non-serious violations of section 5(a)(2) of the Act because it neither created nor

controlled the hazardous conditions.

Respondent, Dutchess Mechanical Corporation, was the plumbing, heating and air

conditioning subcontractor for the construction of a two story building in Palisades, New York.

Following a general inspection of the worksite by an authorized representative of the Department

of Labor (compliance officer), respondent was issued a citation alleging, among other things,

noncompliance with the occupational safety standards codified at 29 C.F.R.


§ 1926.500(e)(1)(iii) (nonserious item 2) and 29 C.F.R. § 1926.500(b)(1) (nonserious item 1).

The alleged violations involved unguarded and inadequately guarded stairwell openings and


*Commissioner COTTINE took no part in the consideration or decision of this case for the

reasons set forth in his separate opinion.


This charge was amended at the hearing, specifically without objection from respondent, to

allege noncompliance with § 1926.500(e)(1)(iv).



The Judge’s decision vacating the charges was issued on June 24, 1976. Complainant


filed, a petition for discretionary review, taking exception to the Judge’s vacation of these items.

On October 21, 1977, the Commission issued an order pursuant to subparagraph D2 of the

Commission’s Policy Statement of December 1, 1976, published at 41 Fed. Reg. 53015,

December 3, 1976, affording respondent the opportunity to file a brief in response to the issues

raised in complainant’s petition. No brief was received. This matter will therefore be decided

without the benefit of additional argument.

At the hearing in this case, respondent stipulated to the existence of the hazardous

conditions, indicating that only its liability for the conditions was being challenged. It is

undisputed that respondent’s employees used the cited stairways and were observed working 8

feet from one stairwell opening and 4 to 6 feet from the other.

On August 6, 1975, respondent sent a letter to the general contractor requesting that four

‘apparent OSHA violations’ be corrected. The letter was sent to confirm a telephone


conversation of the same date in which these violations were discussed. Respondent’s letter

addressed the following conditions:

1. Stairwell: no guardrails

2. No planks on the stairtreads

3. No barrier protection in and around shafts

4. Incomplete perimeter protection


The citation originally charged five separate nonserious violations, including the two vacated

items before us on review. One of the items was withdrawn by complainant and two were

affirmed by the Judge. Inasmuch as neither party has taken issue with the Judge’s disposition of

these items, the Commission will not review his actions. See Water Works Installation Corp., 76

OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976).

That portion of the Judge’s decision pertaining to these allegations is accorded the significance

of an unreviewed Judge’s decision. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979,

1975-76 CCH OSHD para. 20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2nd Cir.,

May 17, 1976).


In the letter respondent pointed out that both the general contractor and respondent are

responsible under the Act for any penalties resulting from OSHA violations.


In response to these communications, on August 27, 1975, respondent received a letter from the

general contractor indicating that conditions 2, 3 and 4 had been corrected, and that ‘[g]uard rails

are being installed around stairwells.’ Also, prior to the inspection in this case respondent’s

employees were instructed not to work in the area of the violative conditions. Respondent’s

foreman testified that he was instructed by the general manager to remove the employees from

the site if rails were not installed. The inspection which resulted in the charges before us

occurred approximately two days after these instructions were given to the foreman.

Judge Fier vacated both items, relying on the Commission decision in Anning-Johnson

Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 &

4409, 1976). In Anning-Johnson, supra, and in Grossman Steel and Aluminum Corporation, 76

OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976),

the Commission held that a subcontractor on a multi-employer worksite who neither created nor

controlled the hazardous conditions to which its employees were exposed, and who knew or

reasonably should have known of the conditions, must take reasonable measures to protect its

employees as an alternative to literal compliance. Suggested measures included attempting to

have the general contractor or the responsible employer correct the conditions, instructing

employees to avoid the hazard, or providing an alternative means of protection. An employer is

obligated to do what is realistic under the circumstances to protect its employees. Mayfair

Construction Co., 77 OSAHRC 178/A14, 5 BNA OSHC 1877, 1977-78 CCH OSHD para.

22,214 (No. 2171, 1977); Anning-Johnson Co., supra, at n. 16.

In his petition for discretionary review complainant argues that respondent did not take

reasonable steps to have the conditions abated or to protect its employees. Complainant points

out that (1) respondent’s letter only referred to one stairwell, whereas there are two unprotected

stairwells and two unprotected stairways in issue; (2) in the three months that elapsed between

the letter and the inspection respondent did not follow up on its initial request to the general

contractor; and (3) respondent’s instructions to its employees were inadequate, inasmuch as there

was no evidence of enforcement and respondent’s employees were actually exposed to the cited


We are not persuaded. Respondent’s attempts to have the general contractor remedy

hazardous conditions on the worksite through both oral and written communications indicate a

concern for employee safety and health that is consonant with the goals of the Act. It was



reasonable for respondent to rely on the general contractor’s assurance that rails were being

installed since three of the four violations pointed out by respondent were immediately corrected.

We do not read respondent’s letter in as restrictive a manner as does complainant. We interpret

the reference to ‘stairwell: no guardrails’ as encompassing both cited conditions before us.

Respondent’s instructions to its employees to avoid the unguarded areas further demonstrate a


genuine concern for its employees’ safety.

We are satisfied that respondent has taken reasonable steps to protect its employees and

that the Judge properly vacated the items before us.

It is ORDERED that the decision of the Administrative Law Judge is affirmed.


Ray H. Darling, Jr.

Executive Secretary

Dated: JUN 27, 1978


We also note that shortly before the inspection respondent’s general manager went so far as to

inform his foreman that the employees would have to be removed from the site if rails were not

installed. In Anning-Johnson Co., supra, at n. 7, we stated that as a general rule we will not

require an employer to remove its employees from the site if the condition is not corrected.

Similarly, where, as here, the work being performed by employees necessarily exposes them to

the cited hazards, we cannot conclude that such exposure indicates that ineffectiveness of

instructions to avoid the hazards where possible. To hold otherwise would be tantamount to

requiring that these employees be removed from the site.


Commissioner COTTINE, filing a 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 by 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 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 satisfies the quorum and official

action requirements of the Act and my participation is not 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). In United the court

indicated 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 the record before him. [footnotes omitted]


348 F.2d at 802. 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.

Though a new member may participate in all pending cases, particularly those involving

an impasse, the decision remains 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


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).


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.


Television Corp. v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied, 403 U.S. 923


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. § 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 ¶22, 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



My decision 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.







v. DOCKET NO. 16256




June 24, 1976


Francis V. LaRuffa, Regional Solicitor United States Department of Labor

1515 Broadway, Room 3555

New York, New York 10036

Attorney for complainant by Rudolph E. DeMeo, Esq.

Jerome L. Wohlstein, General Manager Dutchess Mechanical Corp.

100 Front Street

Patterson, New York 12563

For respondent


Fier, Judge:


This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of

1970 (29 U.S.C. § 651 et seq., hereinafter called the Act), wherein respondent, contests the

citation and penalties for five nonserious violations. The citation dated December 2, 1975 was

based on an inspection conducted November 19, 1975. The citation and proposed penalties were

issued pursuant to sections 9(a) and 10(a) of the Act.

Pursuant to section 10(e) of the Act (29 U.S.C. § 659(c)) respondent, through a letter

dated December 12, 1975, noted its timely contest of the violations and proposed penalties.

The citation for the alleged nonserious violations set forth the following:



Citation No. Item No. Standard Description

1 29 CFR 1926.500(b)(1) Employees were working and walking in the vicinity of

unguarded floor openings in the following areas:

A. stairwell #1, second floor

B. Stairwell #3, second floor

Floor openings shall be guarded by a standard railing

or a cover secured in place.

A penalty of $175.00 was proposed.

2 29 CFR Employees were using the following stairs that had

unguarded open sides:


A. stairway #2, basement to second floor

B. Stairway #3, first floor to second floor


Stairs shall have open sides guarded by a stair railing.

A penalty of $95.00 was proposed.

3 29 CFR 1926.28(a) Employees were working in close proximity to beams

fireproofed with mineral fiber substance and were not

wearing dust masks or respirators. Personal protective

equipment shall be provided and worn where there is

an exposure to hazardous conditions.

A penalty of $30.00 was proposed.

4 29 CFR 1926.350(a)(1) Compressed gas cylinders without valve caps in place

were observed in basement and on first floor. Valve

protective caps shall be kept in place when cylinders

are not in use.

No penalty was proposed.

5 29 CFR 1926.350(a)(9) Compressed gas cylinders that were not secured against

upsetting were observed in basement and on first floor.

Compressed gas cylinders shall be secured to a

stationary object in an upright position.

No penalty was proposed.


Secretary amended the complaint by changing citation No. 1, item 2, from 29 CFR

1926.500(e)(1)(iii) to 29 CFR 1926.500(e)(1) iv. (See transcript pages 13 and 14).


Standards as promulgated:

29 CFR § 1926.500 Guardrails, handrails, and covers.

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be

guarded by a standard railing and toeboards 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.

29 CFR § 1926.500

(e) Stairway railings and guards. (1) Every flight of stairs having four or more

risers shall be equipped with standard stair railings or standard handrails as

specified below, the width of the stair to be measured clear of all obstructions

except handrails:

(iii) On stairways less than 44 inches wide having both sides open, one stair

railing on each side.

(iv) On stairways more than 44 inches wide but less than 88 inches wide, one

handrail on each enclosed side and one stair railing on each open side.

29 CFR § 1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal

protective equipment in all operations where there is an exposure to hazardous

conditions or where this part indicates the need for using such equipment to

reduce the hazards to the employees.

29 CFR § 1926.350 Gas welding and cutting.

(a) Transporting, moving and storing compressed gas cylinders. (1) Valve

protection caps shall be in place and secured.

29 CFR § 1926.350(a)

(9) Compressed gas cylinders shall be secured in an upright position at all times

except, if necessary, for short periods of time while cylinders are actually being

hoisted or carried.


The Secretary withdrew citation one, item three or the basis that the evidence is

insufficient to prove the violation.


1. Whether the respondent violated the Occupational Safety and Health Act as alleged.



2. Whether the respondent failed to comply with sections 29 CFR 1926.500(b)(1); 29

CFR 1926.500(e)(1)(iv); 29 CFR 1926.350(a)(1); 29 CFR 1926.350(a)(9); if so, did they violate

section 29 U.S.C. 654(a) of the Act.


The respondent through its answer and by stipulation, admits that it is a corporation doing

business in the State of New York. Dutchess Mechanical Corporation (hereafter referred to as


Dutchess) purchases material from outside the State of New York (T. 5).

2 Denotes transcript page.


On November 19, 1975, James Whitney, a compliance officer (hereafter referred to as

C.O.) for the Department of Labor, made an inspection of a construction site in Palisades, New

York. At the site, the C.O. was met by the superintendent of the General Contractor and the

mason contractor. The C.O. was told that the various trades were confined to specific areas,

floors (f)or rooms (T. 10). The C.O. was subsequently met by Mr. Wright a shop steward of the

respondent, who introduced him to the respondent’s foreman, Mr. Macur (T. 11). Mr. Macur

stated he was foreman only of the sheet metal workers and that the respondent’s plumbing

foreman was on the floor below (T. 11). The C.O. noticed that when Mr. Wright first approached

him, he was walking alongside of the number 3 stairwell opening. There was a single strand of

rope loosely supported by two by fours around the perimeter of the stairwell serving as a

guardrail (T. 12). The respondent’s sheet metal workers had free access to the area (T. 13). The

C.O. testified that neither stairway number one or number three had toeboards or covers over the

openings (T. 13).

On the second floor, the C.O. observed that stairwell number one was completely

unguarded and stairwell number three was guarded only by the rope as previously described (T.

15). Mr. Wright was observed using stairway number three. The stairs were open on both sides.

One side had no railings at all, and the other side had a loosely suspended rope (T. 16). The

hazards of a fall in both instances were outlined and the possibility of injury described (T. 17).

Since item three was withdrawn at the hearing by the Secretary, this issue is now moot

and will not be discussed (T. 5, 6).

The C.O. indicated that when he was in the work area of the first floor lavatory he asked

for the plumbing foreman (T. 23). Whereupon Mr. Nani introduced himself by name (T. 23).

While descending stairway number two, the C.O. observed three compressed gas cylinders

without valve covers. In addition, one of the cylinders was not secured in the upright position (T.

24). When the C.O. mentioned this to Mr. Nani, he immediately directed one of the plumbing

employees to correct it (T. 24, 26). The C.O. observed Mr. Wright and two other employees

using stairwell No. 2 on two occasions at lunch time. The stairwell had a railing on the inside but

the outside was open and the block partition was not completed at the time (T. 27). Based on the

foregoing, the C.O. submitted his written reports and recommendations for the issuance of the

above violations and proposed penalties (T. 29–32).


The respondent stated that he did not take issue with the facts or with the violations (T.

17). Dutchess contends that the primary issue in this case is that of focusing responsibility on the

proper party.


The Secretary has cited Dutchess for five nonserious violations, one of which was

withdrawn by the Secretary (T.5, 6).

The respondent raises several issues of a procedural nature. It concedes that the violations

did occur and therefore the facts are not in issue (T. 17). Dutchess in its defense relies on the

Seventh Circuit Court decision of Anning-Johnson Co. v. O.S.H.R.C. and Brennan, (516 F.2d

1081 7th Circuit, 1975) Docket No. 3439; 7 OSAHRC 271; BNA 1 OSHC 3331; CCH ¶17,296.

In this case the Court was confronted with the issue of:

‘Whether subcontractors working at a multiemployer construction site can receive

citations and be held liable for penalties under the Occupational Safety and Health

Act of 1970, 29 U.S.C. § 651 et seq. [OSHA], for non-serious violations of

standards promulgated by the Secretary of Labor to which their employees were

exposed, but which the subcontractors neither created nor were responsible for

pursuant to their contractual duties.’

The court resolved the question by holding that:

‘subcontractors working at a multi-employer construction site could not receive

citations and could not be held liable for penalties under the Occupational Safety

and Health Act of 1970 for nonserious violations of promulgated standards to

which their employees were exposed but which the subcontractors neither created

nor were responsible for pursuant to their contractual duties.’

Id at p.1081

In another case decided about the same time but in this Circuit; Brennan v. O.S.H.R.C.

and Underhill Construction Corp., 513 F.2d 1032 (Second Circuit, 1975), the Court held:

‘In a situation where an employer is in control of an area and responsible for its

maintenance, to prove a violation of the Occupational Safety and Health Act the

Secretary of Labor need only show that a hazard has been committed and that the

area of the hazard was accessible to employees of the cited employer or those of

other employers engaged in a common undertaking, despite contention that the

Act can be violated only when a cited employer’s own employees are shown to be

directly exposed to a violation of a standard. Occupational Safety and Health Act

of 1970, §§ 2(b), (b)(1), 3(6), 5(a)(1,2), 8(f)(1); 13, 17(b, c, j), 29 U.S.C.A. §§

651(b), (b)(1), 652(6), 654(a)(1, 2), 657(f)(1), 662, 66(b, c, j).’


Since the issuance of the above decisions, the Review Commission has set forth guide

lines to be followed in cases involving subcontractors on a multi-employer work site. The

Commission was also careful to point out that in setting forth the guidelines, the factual situation

of each case must be considered regarding its applicability. See Secretary v. Anning-Johnson

Company, Docket No. 3694 and 4409 —— OSAHRC —— (May 12, 1976).

In the instant case, the evidence shows that the standards cited above were violated.

Procedural defenses were raised by the respondent concerning the failure to cite the particular

employees for the violations instead of the employer. It is alleged that the employee knowingly

violated the standard by failing to follow company policy on safety. The respondent relies on:

29 U.S.C. 654(b):

Each employee shall comply with occupational safety and health standards and all

rules, regulations, and orders issued pursuant to this Act which are applicable to

his own actions and conduct.

While the evidence shows that in the instance of use of the open stairwell, by the

respondent’s employees during the lunch hour, was not incurred while actually working for the

respondent at the time, nevertheless as long as the employee is on the worksite during the

business hours of the day there can be no question that the Act is applicable during that time. If

the evidence showed that an employee deliberately violated the Act, then the respondent could

not be held responsible in the absence of showing some responsibility for such violation on its

part. To permit the citation of an employer for a nonserious violation of the Occupational Safety

and Health Act which results from deliberate employee misconduct, would subject an employer

to a standard of strict liability under the special duty clause which was not the intent of Congress.

Brennan v. Occupational Safety and Health Review Commission, 511 F.2d 1139, Ninth Court of

Appeals (1975). In another case where the issue arose, the Third Circuit Court of Appeals said:

‘With considerable misgivings, we conclude that Congress did not intend to

confer on the Secretary or the Commission the power to sanction employees.

Sections 2(b)(2) and 5(b) cannot be read apart from the detailed scheme of

enforcement set out in Secs. 9, 10 and 17 of the Act. It seems clear that this

enforcement scheme is directed only against employers. Sections 9(a) and 10(a)

provide for the issuance of citations and notifications of proposed penalties only

to employers.’


Atlantic and Gulf Stevedores, Inc., et al v. O.S.A.H.R.C. —— F.2d —— No. 75–1584 (3rd C.A.)

March 26, 1976.

As to the respondent’s allegation concerning the walkaround inspection in the company

of its representative (T. 36–37); the C.O. explained that since the work of the subcontractors

were in specific areas it would have been cumbersome to have all of them on an inspection of

areas where their trade was not involved (T–44). The consequence of this policy would require

that no citation should be issued to a respondent where he was willfully precluded from

participating in the walk-around of the area where the violation arose. In the instant case, the

respondent’s representative was present when the violations applicable to it, were noted. See also

Chicago Bridge and Iron Company v. O.S.A.H.R.C. and Dunlop; —— F.2d ——; No. 75–1163,

(7th C.A.) May 10, 1976.

The respondent also raised a defense attempting to demonstrate that it should not be held

responsible for those nonserious violations which it neither created or was capable of correcting.

A review of the recent decision of the Review Commission in: Secretary v. Anning-Johnson

Company, Docket No. 3694 and 4409 decided May 12, 1976 —— OSAHRC ——: shows that

specific guidelines have been established for allocating responsibility in nonserious violations. In

the instant case, the respondent seeks to show that it attempted to correct the violations of item 1

and 2 of the citation by calling the matters to the attention of the General Contractor (Exh. J–1).

This was further pursued by instructing the employees not to work in the areas of the two

violations (T. 62, 65, 66). The weight of evidence is such that one can only conclude that the

respondent did not violate the standards, 29 CFR 1926.500(b)(1), or 29 CFR 1926.500(e)(1)IV.

Accordingly, they must be vacated.

As for the remaining two violations, 29 CFR 1926.350(a)(1) and 29 CFR 1926.350(a)(9),

the complainant has carried its burden of proof in showing that the respondent violated the two

standards. The evidence unlike the previous violations reveals that the violations were in the

sphere of control of the respondent. Accordingly, they must be affirmed. The hazard was small in

both instances, therefore no penalty was proposed.

All motions and objections not previously disposed of are herewith denied.


The credible evidence and the record as a whole establishes proof of the following facts:


1. Respondent, Dutchess Mechanical Corporation, is in the construction business. Many

of the materials used by respondent cross state lines.

2. The record shows that the violation set forth in the citation as item 3 was withdrawn by

the Secretary.

3. The evidence shows that the respondent was not in the sphere of cause and or control

of the violations set forth in the citation as items one and two concerning the stairwell, stairs and

floor openings.

4. The evidence shows that the respondent was responsible for the compressed gas

cylinders and it immediately corrected the violations.


1. The respondent is and was at all times herein engaged in a business affecting

commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of


2. The Occupational Safety and Health Review Commission has jurisdiction over the

subject matter and parties to this action.

3. Respondent did not violate 29 U.S.C. 654(a)(2) by failing to comply with 29 CFR

1926.500(b)(1) and 29 CFR 1926.500(e)(1)IV.

4. Respondent violated 29 U.S.C. 654(a)(2) by failing to comply with standards 29 CFR

1926.350(a)(1) and 29 CFR 1926.350(a)(9).


Upon the basis of the foregoing findings of fact and conclusions of law, and upon the

entire record, it is hereby


Citation number one, items one, two and three are vacated. Items four and five are

affirmed. No penalties are assessed.



Dated: June 24, 1976

New York, New York