“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13822 DONOVAN ELECTRIC COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0November 10, 1977DECISIONBEFORE CLEARY, Chairman; and BARNAKO, Commissioner.BY THE COMMISSION:??????????? Adecision of Judge John S. Patton is before us for review pursuant to 29 U.S.C.? 661(i). The Judge affirmed a citation alleging theDonovan Electric Company violated standards at 29 C.F.R. 1926.500(b)(1) and 29C.F.R. 1926.500(f)[1]in that a floor opening was inadequately guarded. The principle issue before usis whether the Judge erred in concluding that he was not bound by the decisionin Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975).??????????? Thealleged violation concerns three elevator shaft openings in a building underconstruction. The openings were equipped with guardrails and toeboards,[2] but not midrails. Employees of Donovan, the electricalsubcontractor, worked on the floors having the openings. They passed within threeto five feet of the openings so as to gain access to their work areas. Themaximum fall distance through any opening was 17 feet. The general contractorhad responsibility for installing and maintaining necessary guardrailprotection.??????????? Donovan?spolicy, upon discovering unsafe conditions it could not itself correct, was toask the responsible contractor to correct the conditions. If this was not done,Donovan warned its employees to avoid the unsafe areas. Donovan held weeklysafety meetings with its employees; at some of these meetings it warned itsemployees to stay away from openings which existed on the jobsite, includingthose involved in this case.??????????? TheJudge affirmed the citation because Donovan?s employees were exposed to thehazard, citing our decisions in Robert E. Lee Plumbers, Inc., 75 OSAHRC56\/C2, 3 BNA OSHC 1150, 1974 1975 CCH OSHD para. 19,594, (No. 2431, 1975) and Alcap Electric Corp., 75 OSAHRC 60\/A3, 3 BNAOSHC 1203, 1975 1976 CCH OSHD para. 19,640 (No. 1722, 1975). He rejectedDonovan?s argument that he should follow the decision in Anning-Johnson,supra, in which the 7th Circuit held that a subcontractor on amulti-employer construction site is not responsible for nonserious violationsit did not create or control, despite the exposure of its employees to thehazard.??????????? Subsequentto the judge?s decision, the Commission decided Grossman Steel and AluminumCorp. 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975 1976 CCH OSHD para. 20,691(No. 12775, 1975), and Anning-Johnson Co. 76 OSAHRC 54\/A2, 4 BNA OSHC1193, 1975 1976 CCH OSHD 20,690 (No. 4409, 1976). In those cases we declined tofollow all aspects of the 7th Circuit?s Anning-Johnson decision. We heldthat, where the usual criteria establishing employer liability have been shown,a subcontractor on a multi-employer construction site who did not create aviolation and lacked the ability to abate within the literal terms of thestandard can defend by showing that it took realistic steps, as an alternativeto literal compliance with the standard, to protect its employees. See also MayfairConstruction Co., 5 BNA OSHC 1877, (No. 2171, Sept. 26, 1977).??????????? TheCommission members differ on whether Donovan has established such a defense.[3] Commissioner Barnakoconcludes that Donovan?s warning to its employees to avoid the openings wassufficient under the circumstances of this case. Donovan?s employees did notwork around the openings but only passed by them in going to their workstations. In his opinion, the existence of the toprailswould in these circumstances have protected them generally against a fall. Anaccident was extremely unlikely, and respondent?s warning was a realisticalternative to literal compliance.??????????? ChairmanCleary agrees that Donovan?s warning was specific and effective enough to passmuster, but he would conclude that Donovan should also have notified thegeneral contractor of the conditions and requested correction.[4]??????????? Ithas been the Commission?s policy, in cases of this type which were tried priorto the issuance of our decisions in Grossman and Anning-Johnson,supra, to afford the subcontractors an additional opportunity to establishthe defenses announced therein. Chairman Cleary would afford Donovan such anopportunity. Commissioner Barnako thinks that Donovan has already established avalid defense, and would therefore vacate the citation. However, in view of thelack of a majority the judge?s decision is affirmed. Therefore, CommissionerBarnako agrees to an order giving Donovan the opportunity to establish adefense under Commission precedents.??????????? Accordingly,the Judge?s decision is affirmed unless Donovan requests a further hearingwithin ten days of its receipt of this decision. In such event the order willbe withdrawn and the case remanded for further proceedings consistent with thisdecision.?FOR THE COMMISSIONRay H. Darling, Jr.Acting Executive SecretaryDated: November 10, 1977UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13822 DONOVAN ELECTRIC COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: May 7,1976?DECISIONAND ORDERAPPEARANCESEdward B. Gaines,Esq., and Stephen J. Simko, Jr., Esq., Office of the Solicitor, U. S.Department of Labor, Atlanta, Georgia, on behalf of complainant\u00a0Donald E. Karraker, Esquire, Winter Park, Florida, on behalf ofrespondent.\u00a0STATEMENTOF THE CASEPatton, Judge:??????????? This is a proceeding pursuant to section 10 of theOccupational Safety and Health Act of 1970 (29 U.S.C. ? 651, et seq., 84 Stat.1590, hereinafter referred to as the Act) contesting a citation issued by the complainantagainst the respondent under the authority vested in complainant by section9(a) of the Act.??????????? The citation alleges that as a result of the inspectionof a workplace under the ownership, operation or control or the respondentlocated at 875 Sterthaus Avenue, Ormond Beach,Florida, the respondent had violated section 5(a)(2) of the Act by failing tocomply with Occupational Safety and Health Standard 29 C.F.R. 1926.500(b)(1)and 29 C.F.R. 1926.500(f). Hearing was held in Daytona Beach, Florida, onSeptember 30, 1975. Both parties appeared and presented evidence. There was nomotion to intervene.ISSUESIN THE CASE??????????? It was alleged that respondent, in a construction projectat a hospital at the above-described location, failed to provide standard guardrailsat the sixth and seventh floor service elevator openings and the sixth floorwest general elevator opening, in violation of standards 29 C.F.R.1926.500(b)(1) and 29 C.F.R. 1926.500(f). Respondent defends on the ground thatthe contractual obligation to maintain the property in accordance with the Actrested upon the general contractor and not upon the subcontractor and that,therefore, the subcontractor cannot be held to be in violation for failure ofthe property to meet standards of the Occupational Safety and Health Act.EVIDENCEIN THE CASE??????????? Respondent admitted in its answer that it is acorporation having a place of business and doing business in Ormond Beach,Florida. It was admitted that respondent has been, at all times relevant tothis cause, an electrical contractor and is a business affecting interstatecommerce within the meaning of the Act. The evidence establishes thatrespondent was performing electrical work in construction of a hospital, andthat there were four elevator openings on floors six and seven, one of whichhad proper rails as required by the statute. The compliance officer, Mr. JamesR. Stock, testified that three of the openings did not have rails whichcomplied with the standard. On the seventh floor, there was an elevatoropening, which had a one-by-eight-inch wooden top rail, whereas the standardrequires a two-by-four-inch rail, and it also had a toeboard,which was two by eight inches in size. There was no centerboard. On the sixthfloor, there was a service elevator shaft with an opening, which had a top railand toeboard, the top rail being two by eight inches,which was satisfactory, and the toeboard wassatisfactory, but there was no middle rail (Tr. 31, 32, 33). There was anotheropening with a two-by-four-inch top rail and a two-by-four inch toeboard but no intermediate rail (Tr. 33). Seven ofrespondent?s employees worked these two floors, said employees having to passwithin close proximity of said openings (Tr. 14, 15, 22, 43).??????????? Mr. Dennis Swanson, who worked for respondent, statedthat they regularly used the east stairwell to gain access to the seventh floorlevel, and after coming off of the seventh floor stairway, they passed in thearea of a service floor elevator opening. If they wanted to walk into the centerof the building and turned left, they walked right by the elevator opening. Ifthey passed down the corridor in the regular manner, going to and from thejobsite on that floor, in the center of the floor, they came within severalfeet of the opening (Tr. 43, 44). They did not work in the shafts in front ofthe openings (Tr. 44). There was a distance of approximately six feet betweenthe sixth floor and fifth floor of the elevator shaft (Tr. 45). The falldistance from the seventh to the fifth floor elevator opening was approximately17 feet (Tr. 45). The top of the elevator area on the fifth floor is metalgrade and on top of that for four or five inches is foam and then tar andgravel (Tr. 46).??????????? Mr. Swanson was a union job steward and, prior to theissuance of the citation, he went to the general contractor probably once aweek with a complaint; twice the employees walked off the sixth and seventhfloors to work on the first floor because of the unsafe condition of thefloors. These complaints were about things other than the guardrails. He couldnever recall making a complaint about the guardrails (Tr. 50, 51). Respondenttook the position that men were to stay away from these unsafe areas until theywere corrected. If Mr. Swanson and the foreman felt in area was unsafe, theywould move the employees to a safe area until the hazard could be corrected. Itwas Mr. Swanson?s policy to go to the foreman and show him the dangerous areaand then to the general contractor, and if the general contractor did not correctit, to move the men (Tr. 54). The respondent talked about the openings atsafety meetings. Employees were told to stay away from openings, but it wasimpossible to completely do so, as they had to walk by them (Tr. 54, 55).Safety meetings were held once a week. It was brought up at one of the safetymeetings that these openings were not properly guarded (Tr. 55). Mr. Swansontestified that he was an electrician and was not skilled in other tasks,therefore, would not have had the competence to install guardrails (Tr. 52).The respondent introduced the contract between the general contractor and thesubcontractor, if being the position of the respondent that the generalcontractor had the responsibility of making corrections.EVALUATIONOF THE EVIDENCE??????????? It is undisputed that the requirements for guardrailsover openings were not complied with adequately. It is also undisputed thatsome guardrails existed over all openings. There were no middle guardrails onany of the openings, and the sizes of the boards did not, in all instances,meet the requirements of the standard. It also would appear that the employeeshad to pass in close proximity to the openings, and that the condition wasconsidered serious enough that it was brought up in at least one of thecompany?s safety meetings. It was not controverted that the primary contractualresponsibility to maintain the premises rested not upon the respondent but uponthe general contractor. The sole issue for determination, therefore, is whetherthe respondent may be held in violation because it permitted its employees towork in conditions prohibited by the standard butwhich were not the contractual responsibility of the respondent.??????????? In the case of Secretary v. Robert E. Lee Plumbers,Inc., 17 OSAHRC 639 (1975), the Review Commission stated: (at 639, 640)Lee argues that,because it did not create the violative conditions or control those areas ofthe worksite where these conditions existed, it should not be found inviolation. We have consistently rejected this argument. R. H. Bishop Co.,8 OSAHRC 930, BNA 1 O.S.H.C. 1767, CCH E.S.H.G. para. 17,930 (1974); CaliforniaStevedore & Ballast Co., 8 OSAHRC 811, BNA 1 O.S.H.C. 1757, CCHE.S.H.G. para. 17,931 (1974). As we said in R.H.Bishop:?In the usual casean employer is in violation of section 5(a) when his employees are affected bya violative condition. It is no defense that others created the condition, wereresponsible for its existence, or had control of the site where such conditionexists. 8 OSAHRC at 931.???????????? The Review Commission held in the case of Secretary v.Alcap Electrical Corp., 18 OSAHRC 1 (1975), asfollows:?At issue iswhether a subcontractor can be held liable under the Act if its employees areexposed to hazards resulting from conditions it did not create or control. Wehave consistently answered that affirmatively. See Secretary v. City WideTuckpointing Service Co., OSAHRC DOCKET NO. 247 (May 24, 1973), Secretaryv. Gilles and Cotting, Inc., OSAHRC DOCKET NO.504 (October 9, 1973), Secretary v. Hawkins Construction Co., OSAHRCDOCKET NO. 949 (May 20, 1974).????????????? However, the United States Court of Appeals for theSeventh Circuit has refused to approve the above-stated position of theOccupational Safety and health Review Commission. In the case of Anning-JohnsonCo. & Workinger Electric, Inc. v. OSAHRC &Secretary of Labor, 516 F.2d 1081 (7th Cir. 1975), the court, in reversing theOccupational Safety and Health Review Commission, stated: (at 1085, 1090?91)?. . . In RobertE. Lee Plumbers, Inc., OSHRC DOCKET NO. 2431 (Jan. 30, 1974) (CommissionReview Ordered), it was said:?Admittedly, therespondent is responsible for the ?place of employment,? yet no one shouldconclude that such responsibility imposed by the Act embraces the entire workproject as shown in this case. This responsibility is the responsibility of theprime contractor. . . .?Assuming as wehave just found that requiring abatement of hazards by subcontractors notresponsible for the violating conditions is impractical, the only otheralternative available is for such a subcontractor to remove his employees fromthe job after a violation is discovered and prior to a citation being issued.This again not only requires a subcontractor to be able to recognizenon-serious violations outside its field of expertise, but is an unrealisticand economically unfeasible solution.?On manyconstruction jobs the withdrawal of a single subcontractor, upon whose workfuture construction depends, could conceivably cause an entire project to shutdown. The subcontractor who wants to avoid OSHA liability must guess at hisperil that in fact a violation exists. . . .?For all of theforegoing reasons we have determined that the Secretary?s and Commission?sposition cannot be sustained.???????????? The respondent maintains that the United States Court ofAppeals for the Seventh Circuit, having held that the subcontractor is not inviolation if the primary contractual duty of complying with the law was on thegeneral contractor, the Review Commission is bound by said decision, and thecomplaint in this case should be dismissed. It should be noted, however, thatthis case did not arise within the jurisdiction of United States Court ofAppeals for the Seventh Circuit but within the jurisdiction of the United StatesCourt of Appeals for the Fifth Circuit. This Judge is bound by the decisions ofthe United States Circuit Court of Appeals within the area of said Court?sjurisdiction. Decisions of the United States Circuit Courts of Appeals outsidethe jurisdiction of the case at bar are only persuasive and not binding. Untilthe Review Commission has reversed its position, this Judge is bound by thedecisions of the Review Commission in all areas other than those governed bythe United States Circuit Court of Appeals for the Seventh Circuit. Therespondent raises a number of very substantial arguments as to whysubcontractors should not be held in violation where respondent does not havethe contractual responsibility of maintaining the property. The respondent contendsthat it should not be held in violation for the following reasons: for therespondent to abate would, according to the respondent, interfere with the workof others; furthermore, it is pointed out that ordinances make it unlawful tocontract or perform work outside the scope of operation of the skills of aparticular craft, it being required that contractors be licensed to work withina certain craft framework. Union contracts require that only employees of acertain craft be permitted to do work that is under the jurisdiction of thatcraft. Once subcontractors know they must not only discover but abate allhazards to which their employees are exposed, the immediate result will be agreat duplication of effort in searching for defects. Employers have to beknowledgeable enough to detect a potential hazard and would not have thatknowledge, in many instances, outside their own craft and skill. Manysubcontracts provide that subcontractors shall do nothing to interfere withwork of other subcontractors. A removal of employees from the job to preventemployees? exposure to hazard would breach the contract with the generalcontractor. To require the subcontractor to abate would be to require multipleexpenditures on discovery of violations, as well as cause duplicateexpenditures, in many instances, in actual abatement.These arguments are ablypresented by the respondent and are persuasive. This Judge, however, feelsbound by the decisions of the Occupational Safety and Health Review Commissionuntil and unless said decisions are reversed by the Review Commission or untilthey are reversed by a court of higher jurisdiction within the area in whichthe case arises.??????????? The contention of the respondent that a subcontractorwould lack the skills to correct a hazardous condition does not absolve therespondent of the responsibility to correct such a condition. It is notnecessary for an employer to do said work with his employees for the conditionto be corrected. If the respondent?s employees lack the requisite skill, theemployer must contract to have the work done by others. There is certainlynothing in the law that places an obligation for safety on a company only if ithas people within its own employ who can make the corrections. As to therespondent being controlled by a contract with the general contractor, itshould be noted that the Occupational Safety and Health Act has now beenenacted for approximately five years. There would be very few, if any,construction contracts which would have been entered into prior to the time ofenactment of the law. Any dilemma that an employer finds itself in as a resultof a contractual obligation could very easily have been avoided by providing inthe contract for the contingency of a violation of the Occupational Safety andHealth Act. It could very easily be provided that the employees of an employerwould not be required to work under conditions which the general contractor hasnot corrected, and it could be provided that if a subcontractor removes itsemployees from the job to avoid a hazardous situation there would be no breachof contract. Any other contractual provisions, such as that an employer cannotdo work which would interfere with the work of another subcontractor, couldcertainly have been taken care of in the negotiation and execution of thecontract. If the law places a pre-existing obligation upon parties, thatobligation cannot be destroyed by a contract entered into by and between theparties subsequent to enactment of such legislation and subsequent to promulgationof such standards. To permit parties to enter into contracts which makecompliance impossible, from a contractual standpoint, with the law woulddefinitely be opposed to public policy. The dilemma that the respondent findsitself in because its hands may be contractually tied is of its own making. Theenforceability of a contract which would require the respondent to violatefederal law is also seriously open to question.??????????? It should further be noted that there is no indication inthe record that the respondent made any request of the general contractor thatthe guardrail situation be improved or that the respondent made any request ofthe general contractor for permission to erect adequate guardrails itself.There is some evidence of complaint to the general contractor by the labororganization, but this would not be an action by the respondent. There is noindication in the record that permission to erect adequate guardrails wouldhave been denied by the general contractor. It would appear that the additionof a mid-rail and the substitution, in certain instances, of a larger board forthe top or bottom rail is not the type of activity that would have damaged,impaired or interrupted the work of either the general contractor or thesubcontractors. It would seem a very simple thing to nail a board securelyacross an elevator shaft opening. It would certainly not appear to be asituation where interference with work of subcontractors and of the generalcontractor would result from remedying the situation or where there would beany damage to the premises or any actual interference with anyone. Therefore,even if, in instances where the above factors are present a respondent shouldbe absolved from violation of the Act, it would appear that in the case at bar,many of the problems suggested in the arguments of the respondent have not beenshown to be present. It must therefore be held that the complaint has beensustained.??????????? the proposed penalty for said violation is $30. It wouldcertainly appear that, in view of the possibility of serious injury resultingfrom a fall, a penalty of $30 would be most minimal. It is alleged that saidviolation is a non-serious violation. It might be questionable as to whetherthe violation, under the circumstances, would be a serious violation; but, inview of the fact that only a non-serious violation is alleged, the question ofwhether the violation would be a serious violation cannot be considered in thiscase.FINDINGSOF FACT??????????? 1. Respondent is a corporation having a place of businessand doing business in Ormond Beach, Florida, where it is engaged in thebusiness of an electrical contractor.??????????? 2. Respondent is engaged in a business affectinginterstate commerce within the meaning of the Act.??????????? 3. On or about June 3, 1975, respondent permitted itsemployees to work in close proximity to openings to an elevator shaft which hadinadequate guardrails. None of said openings had a mid-rail, and several ofsaid openings had inadequate wooden rails at the top or bottom of said openings.??????????? 4. Said openings to the elevator shaft were on the sixthand seventh floors, and the distance from which an employee could have fallenfrom the sixth floor was six feet, and the distance from which an employeecould have fallen from the seventh floor was 17 feet.??????????? 5. The primary contractual obligation to maintain thepremises rested upon the general contractor. The fact that said openings to theelevator shaft were unsafe to employees of respondent was called to therespondent?s attention at a safety meeting.??????????? 6. The evidence does not establish that the respondent atany time requested the general contractor to correct said condition, nor doesthe evidence establish that the respondent requested permission of the generalcontractor to correct said condition itself.??????????? 7. The evidence does not establish that to correct saidcondition would have damaged the property or interfered with anothercontractor.CONCLUSIONSOF LAW??????????? 1. Respondent is engaged in a business affectinginterstate commerce and is within the jurisdiction of the Occupational Safetyand Health Act.??????????? 2. A subcontractor is in violation of the Act if itsemployees are permitted to work in conditions which violate an occupationalsafety and health standard, notwithstanding the fact that the contractualresponsibility for maintaining the premises is upon the general contractorrather than the subcontractor.??????????? 3. On or about June 3, 1975, respondent violated section5(a)(2) of the Act and Occupational Safety and Health Standards 29 C.F.R.1926.500(b)(1) and 29 C.F.R. 1926.500(f).ORDER??????????? Respondent, on or about June 3, 1975, violated section5(a)(2) and Occupational Safety and Health Standards 29 C.F.R. 1926.500(b)(1)and 29 C.F.R. 1926.500(f). A penalty in the amount of $30 is assessed for saidviolation. The requirement that said violation be immediately abated isaffirmed.Dated this 7th day of April 1976.?JOHN S. PATTON[1] These standardprovide, in relevant part:29C.F.R. 1926.500(b) Guarding of floor openings and floorholes. (1) Floor openings shall be guarded by a standard railing and toeboardsor cover, as specified in paragraph (f) of this section. In general, therailing shall be provided on all exposed sides, except at entrances tostairways.(f) Standard specifications: A standardrailing shall consist of toprail, intermediate rail, toeboard, and posts, . . .(i) For wood railings, the post shall be of at least 2-inch by 4 inch stockspaced not to exceed 8 feet; the toprail shall be of at least 2-inch by 4-inchstock.\u00a0[2] The Judge found,with respect to the toprails and toeboards, that ?several of said openings hadinadequate wooden rails at the top or bottom . . .? The evidence shows,however, that all of the toeboards and the toprails surrounding two of theopenings were unquestionably adequate. The toprail around the remaining openingwas of 1 x 8 stock instead of the 2 x 4 material specified in 1926.500(f). Itis not clear whether the Secretary alleged that this railing was inadequate. Inany event, it is clear that the absence of midrails is the heart of theSecretary?s case.[3] Donovan contendsthat the evidence shows that it did ask the general contractor to installadequate guardrails, citing testimony by one of its employees that he did, onoccasion, ask the general contractor to correct safety violations. Thiswitness, however, could not recall whether he mentioned these particularopenings to the general contractor. Thus, the Commission members agree theJudge correctly found that the evidence did not establish Donovan requested thegeneral contractor to correct the conditions involved in this case.\u00a0[4]. See note 3.”