“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 10108 ELECTRICAL CONTRACTOR ASSOCIATES, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: February 24, 1976\u00a0DECISIONBefore: BARNAKO,Chairman; MORAN and CLEARY, Commissioners.BY THECOMMISSION:OnAugust 11, 1975, Administrative Law Judge William E. Brennan issued a decisioncase affirming a citation for violations of section 5(a)(2) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651 et seq. Specifically, heaffirmed two items alleging that respondent had failed to comply with thesafety standards published at 29 CFR ? 1926.500(b)(1) and (d)(1). A penalty of$25 was assessed for each violation.Neitherparty has appealed the Judge?s decision. Commissioner Moran on his own motionordered review on the following issue:Was the Judge?sdecision consistent with the ruling of Anning-Johnson et al. v. OSAHRC, ?? F.2d?? (7th Cir., decided May 27, 1975)?\u00a0Theparties have declined the opportunity to submit briefs on the issue. In thesecircumstances, and in the absence of a compelling public interest in theresolution of the issue on review we decline to pass upon the issue. Abbott-Sommer,Inc., ?? BNA OSHC ??, ?? CCH OSHD para. ___ (No. 9507, February 17, 1976).The possible application of the Seventh Circuit?s decision is before us inseveral other cases that have been briefed and that are to be decided in thenear future. Accordingly, we affirm the Judge?s decision.So ORDERED.FOR THECOMMISSION:William S.McLaughlinExecutiveSecretaryDATED: FEB 24,1976?MORAN,Commissioner, Dissenting:Thelast line of the preceding opinion asserts that the application of the Anning-Johnsonrule[1]is to be ?decided in the near future.? Why, then, decide this case now? Itcertainly is not one of our older cases, for there are more than 300 Judges?decisions which have been pending on review for longer periods of time thanthis case.Onthe other hand, the assertion quoted above may be fallacious since Messrs.Barnako and Cleary also allege that there is an ?absence of a compelling publicinterest in the resolution of the issue on review? (whether this decision isconsistent with Anning-Johnson).Ifthe latter allegation is true, why face up to the Anning-Johnson rule?in the near future? or at any other time? I submit that inconsistency andevasiveness permeate the majority opinion: On the one hand they decline toaddress the issue because of a lack of compelling public interest in itsresolution. On the other hand they are going to address the issue in the nearfuture.Whatreally is happening here, of course, is a continuation of the gag-rule schemeenunciated in Secretary v. Francisco Tower Service, OSAHRC Docket No.4845, February 6, 1976. In that case they avoided discussion of the Judge?sdecision because, they said, ?[t]he order for review does not present anissue.? In this case there is an ?issue,? but it?s either not important enoughfor them to discuss or they?re going to discuss it some other time. Pay yourmoney and take your choice.Withina space of two weeks, decisions of this Commission have laid down three ways toavoid discussion of Judge?s decisions directed for review.(1)The direction does not state an issue.(2)The direction does state an issue but(a)there is no compelling public interest in its resolution, or(b)we intend to discuss it in the future.Allof these reasons, however, are purely subjective assertions by Messrs. Barnakoand Cleary. There are no facts to prove the alleged lack of interest in the Anning-Johnsonrule and, as to whether they will take it up in the near future, only time willtell. It is now the Winter of 1976. What does the phrase ?near future? mean? Asthey say in Spain Sabe?Inany event, the refusal by my colleagues to address the directed issue[2]once again leaves our trial courts uncertain as to just what position is to betaken by this Commission. Their failure to consider the relevance to thealleged violations in this case of the Circuit Court?s Anning-Johnsonrule leaves unsettled the important question of subcontractor liability forsafety infractions on multi-employer worksites.[3]InAnning-Johnson it was held that subcontractors working on multi-employeremployer construction sites were not liable for nonserious violations ofstandards to which their employees were exposed, but which the subcontractorsneither created nor were responsible for, pursuant to their contractual duties.The Anning-Johnson holding conflicts with the heretofore, long-standingCommission rule that subcontractors may be cited for violations to which theiremployees are exposed, notwithstanding the fact that the violations arenonserious and were not created by, or the responsibility of, the citedsubcontractor.[4]Inthis case the respondent, who was an electrical subcontractor, was engaged inthe installation of electrical conduit in a building under construction inAltoona, Pennsylvania. During the course of an inspection of that worksite,respondent?s employees were observed preparing to install two electric paneljunction boxes in the vicinity of a mechanical shaft that lacked toeboards andwas partially unguarded by a standard railing. Other employees of the respondentwere observed working on conduit pipes near the similarly unguarded side of theroof deck some 48 feet above the ground.Asa result of this inspection, respondent was issued a citation alleging that ithad violated 29 U.S.C.? 654(a)(2) by failing to comply with the occupationalsafety standards codified at 29 C.F.R. ? 1926.500(b)(1) and (d)(1),[5]respectively.Thefacts are uncontroverted. However, the record establishes that in its capacityas a subcontractor, the respondent neither created nor was responsible forthese hazardous conditions. Furthermore, the erection of guardrails andtoeboards is clearly beyond the scope of the specialized duties performed byelectrical workers.??????????? Below, Judge Brennan affirmed thetwo violations. In a decision consistent with Commission precedent, he states:?The fact that thehazardous conditions, i.e., the partially guarded mechanical shaft . . . andthe totally unguarded, opensided top floor . . ., may have been created by thegeneral contractor or others is not a defense to these violations.???All that isrequired to find a charged employer in violation is that its employees wereexposed to the hazard or that the hazardous area was accessible to saidemployees.??Itis high time that the Commission abandon its position which predicatesliability upon such arbitrary criteria. The well-reasoned opinion in Anning-Johnsonaddresses itself to the realities of divisional responsibility in themulti-employer construction situation.Accordingly,I would vacate both alleged violations on the basis of the Anning-Johnsondecision.Sincethe Commission decision does not address any of the matters in Judge Brennan?sdecision, the same is attached hereto as Appendix A.?APPENDIX AFootnotes\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 10108 ELECTRICAL CONTRACTOR ASSOCIATES, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 FINAL ORDERDATE: September 10, 1975DECISIONAND ORDERAPPEARANCES:FOR THE SECRETARY OF LABOR LouisWeiner, Regional Solicitor Alan J. Davis, Esq. U.S. Department of Labor\u00a0FOR THE RESPONDENT Edward M.Petsonk, President\u00a0Brennan, W. E.;A.L.J.Thisaction arises under the provisions of Section 10(c) of the Occupational Safetyand Health Act of 1970, 29 U.S.C. 659(c) (hereinafter the Act), to review aCitation for Nonserious Violations of Section 5(a)(2) of the Act, 29 U.S.C.654(a)(2) and penalties proposed thereon, issued pursuant to Sections 9(a) and10(a) of the Act, 29 U.S.C. 658(a) and 659(a) on August 13, 1974 by theSecretary of Labor through the Area Director of the Occupational Safety andHealth Administration for Pittsburgh, Pennsylvania (hereinafter Complainant),to Electrical Contractors Associates, Inc. of Altoona, Pennsylvania(hereinafter Respondent), following an inspection of a construction site at17th Street and Eleventh Avenue in Altoona, Pennsylvania (hereinafter worksite)on August 1, 1974.ByOrder dated October 21, 1974, the undersigned, sitting as a Motions Judge,granted Complainant?s Motion to Strike Respondent?s Notice of Contest, andunsigned letter dated August 15, 1974, date stamped ?received? by thePittsburgh Area Director?s office on September 20, 1974, as not timely filed(R. p. 9).Afterreview, the Commission by its Order dated February 14, 1975 remanded this casefor hearing, without prejudice to Labor?s raising the issue of whether theNotice of Contest dated August 15 was timely mailed (R. p. 16).Thiscase was thereupon assigned to the writer on February 19, 1975 (R. p. 17).Trialwas held in this matter on April 1, 1975 pursuant to notice dated February 24,1975 at Johnstown, Pennsylvania.Complainantwas represented by counsel and Respondent by its nonlawyer President, Mr.Petsonk. No affected employees or representatives thereof desired party status.Bothparties were invited to submit post-trial briefs. Complainant filed its briefon June 23, 1975; Respondent did not file any post-trial documents.Havingconsidered the entire record herein, the testimony and demeanor of thewitnesses, the exhibits, stipulations, representations and admissions of theparties, it is concluded that the substantial, reliable and probative evidenceof this record considered as a whole supports the following findings of factand conclusions of law.Duringthe trial, evidence, in the form of the sworn testimony of Respondent?s President(Tr. 56?62) plus authenticated exhibits, Court?s Exhibits 1, 2 and 3 (thelatter being the sworn statements of Mr. Petsonk and his secretary, ImogeneNicodemus attesting to the mailing of Respondent?s Notice of Contest, itsletter dated August 15, 1974, on August 15, 1974) was received. Based upon thisevidence of record, not existent at the time of my ruling upon Complainant?sMotion to Dismiss, it hereby is determined that Respondent did file a timelyNotice of Contest pursuant to the provisions of Section 10(c) of the Act, 29U.S.C. 659(c).TheCitation for Nonserious Violations sets forth the following: Item Standards Description of Alleged Violation Abatement Date Item No.1 29 CFR 1926.500(b)(1) A floor opening (mechanical shaft), located on the third floor east side, was not guarded by standard railings and toeboards. The mid-rail and toeboards were missing. Immediately upon receipt of Citation \u00a0 Item No. 2 29 CFR 1926.500(d)(1) Three sides on the roof deck, approximately forty-eight (48) feet above ground level, were not guarded by standard railings and toeboards. Immediately upon receipt of Citation ?Penaltiesof $55 for Item No. 1 and $45 for Item No. 2 were proposed.The citedStandards provide in pertinent part:Item No. 1:? 29 C.F.R. 1926.500(b)(1)Floor openings shallbe guarded by a standard railing and toe boards or cover, as specified inparagraph (f) of this section. In general, the railing shall be provided on allexposed sides, except at entrances to stairways.?Item No. 2 : 29C.F.R. 1926.500(d)(1)Every opensidedfloor or platform 6 feet or more above adjacent floor or ground level shall beguarded by a standard railing, or the equivalent, as specified in paragraph(f)(i) of this section, on all open sides, except where there is entrance to aramp, stairway, or fixed ladder. The railing shall be provided with a standardtoeboard wherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials could create a hazard.?Thefollowing matters were stipulated to by the parties.TheRespondent company is incorporated in the State of New Jersey having itsprincipal office in Altoona, Pennsylvania. It had no history of priorviolations of the Act and no injuries were involved in this case. During 1973it had from 25 to 30 employees on the average and had total sales of about twomillion dollars. It did not contest that it was an employer engaged in abusiness affecting commerce having employees within the meaning of Section 3(5) of the Act, 29 U.S.C. 652(5). Based upon the evidence of record abovereferred to, supporting a conclusion that this Respondent did file a timelyNotice of Contest, it is concluded that the Act applies to the employmentperformed at the worksite here involved within the meaning of Section 4(a) ofthe Act, 29 U.S.C. 653(a) and the Review Commission has jurisdiction of thismatter under the provisions of Section 10(c) of the Act, 29 U.S.C. 659(c).Theevidence of record reveals that on August 1, 1974, Compliance Officer Barkerconducted an inspection of a building under construction, an addition to theexisting Bell Telephone building in Altoona Pennsylvania. Employees ofRespondent company were engaged in installing electrical conduit in this partiallycompleted building.Whenthe Compliance Officer reached the east side of the third floor of thisbuilding, he observed two of Respondent?s employees working within six inchesof the edge of an open mechanical shaft which was about twenty feet square. Thisshaft was guarded with a top rail, but there was a complete absence of amid-rail or toeboard. The two employees were engaged in working with and near10 electric conduit pipes, protruding upward about two feet from the floorlevel, preparing to install two electric panel junction boxes. Whenphotographed by the Compliance Office (See Exhibit C?1), both employees were ina crouched position so that their heads were below the top guardrail and theprotruding upright conduit pipes were between the employees and the openmechanical shaft. The upright conduit pipes extended approximately four feetalong the twenty-foot side of the partially guarded shaft. If the employees hadnot worked beyond the upright conduit pipes, I would conclude that they werenot exposed to the hazard of falling some forty-five feet to the basement floorbelow. However, the Compliance Officer testified that he observed these manstanding and walking, briefly, along that side of the mechanical shaft at whichno conduit pipe was located (Tr. 46?49). This evidence is unrebutted in thisrecord.Asthis shaft was not covered, was only partially protected by a top guardrail,and as the employees were not wearing lifelines or any similar type ofprotective equipment, it is concluded that the nonserious violation of theStandard set forth at 29 C.F.R. 1926.500(b)(1) as charged in Item No. 1 of theCitation has been established.Onthe northwest side of the top, open floor of this building, the ComplianceOfficer observed Respondent?s foreman Mr. Bettwy and another employee standingin a four-foot-wide space between a low concrete block wall and the edge ofthis floor, some forty-eight feet above ground level. They were working onconduit pipes at this location. The edge of this floor or ?roof deck? wascompletely unguarded. The Compliance Officer photographed this location afterthe men had been called back away from the edge of this floor (See ExhibitC?2).Attrial, after hearing this testimony and examining Exhibit C?2, Respondent?sPresident agreed that the described condition had existed. (He had beenerroneously informed that a scaffold was extent at this point at the edge ofthis floor.)Uponthis state of the evidence it is concluded that a nonserious violation of thecited Standard set forth at 29 C.F.R. 1926.500(d)(1), as it pertains to thisone side of this floor where employees were briefly exposed to the totallyunguarded, opensided floor, forty-eight feet above ground level has beenestablished. Item No. 2 is amended to specify a violation of the above-citedStandard at one side of this opensided floor, to conform to the issue tried andproof received.[6]Thefact that the hazardous conditions, i.e., the partially guarded mechanicalshaft (Item No. 1) and the totally unguarded, opensided top floor (Item No. 2),may have been created by the general contractor or others, is not a defense tothese violations.?It is no defensethat others created the violative condition, were responsible for itsexistence, or had control of the site where such condition exists.???????????? Secretary ofLabor v. R. H. Bishop, Co., 8 OSAHRC 930, 931 (May 30, 1974).?Allthat is required to find a charged employer in violation is that its employeeswere exposed to the hazard or that the hazardous area was accessible to saidemployees. See: Secretary of Labor v. Gilles & Cotting and OSHRC,504 F.2d 1255 (C.A. 4, 1974), Secretary of Labor v. OSHRC & UnderhillConstruction Corp., ?? F.2d ?? (C.A. 2, 1975; Nos. 74?1579 and 74?1568).Thereremains for determination an appropriate penalty to be assessed taking intoconsideration the four statutory factors set forth in Section 17(j) of the Act,29 U.S.C. 666(i).Itis now well established that the Commission has wide discretion in penaltyassessment (Secretary of Labor v. OSHRC & Interstate Glass Co., 487F.2d 438 (C.A. 8, 1973)), although it is bound to consider the four factors ofSection 17(j) of the Act, (Secretary of Labor v. Everhart Steel ConstructionCompany, Inc., ?? OSAHRC ??, OSAHRC Docket No. 3217, April 9, 1975).Theassessment of penalties by the Commission is not a factual finding but theexercise of a discretionary grant of power (Secretary of Labor v. InterstateGlass Company, supra; Beall Construction Company v. OSHRC; 507 F.2d1041 (C.A. 8, 1974)).Thefour statutory factors are the gravity of the violation, Respondent?s size, itsgood faith and any history or prior violations. The evidence herein revealsthat the gravity of the two violations herein found to have existed at theworksite involved is relatively low. Two employees were very briefly exposed toeach of these two hazardous arduous conditions. Respondent was cooperative withComplainant, had a reasonably good safety program holding safety meetings on amonthly basis with daily inspections to determine adherence to company safetyrules and policies, among other matters.Itis a small electrical contractor in the Altoona area with 25 to 30 employees.No injuries were involved in this case and Respondent has no history of priorviolations of the Act.Itis therefore concluded that a $25 penalty for each of the two nonseriousviolations herein found to have existed is appropriate and consistent with thepurposes and objectives of the Act.Basedupon the foregoing findings and conclusions and pursuant to the provisions ofSections 10(c) and 12(j) of the Act (29 U.S.C. 659(c) and 661(i)), it ishereby,ORDERED:that1.The Citation for nonserious violations of 29 U.S.C. 654(a)(2) for failure tocomply with the Standards set forth at 29 C.F.R. 1926.500(b)(1) (Item No. 1)and 1926.500(d)(1) (Item No. 2 as amended herein) is AFFIRMED.2.A total civil penalty in the amount of $50 is assessed against the Respondentherein based upon the nonserious violations found to have existed at theworksite involved on August 1, 1974.\u00a0WILLIAM E.BRENNANJudge, OSAHRCDated: August11, 1975Hyattsville,Maryland[1]Anning-Johnson Co. v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975).[2]See Secretary v. Abbott-Sommer, Inc., OSAHRC Docket No. 9507, February17, 1976.\u00a0[3] The invocation of waiver in this case is particularlyregrettable as this respondent, who the Judge found to be a small contractor,was represented pro se. Apparently, my colleagues feel that only ?cases thathave been briefed? merit their attention.\u00a0[4]See e.g., Secretary v. Savannah Iron and Fence Corporation, 10 OSAHRC 1(1974); Secretary v. R. H. Bishop Co., 8 OSAHRC 930 (1974).[5]The affirmance of the citation for noncompliance with 29 C.F.R. ?1926.500(d)(1), a standard which pertains to the guarding of opensided floors,platforms, and runways, is also contra to the holding in Langer Roofing andSheet Metal, Inc. v. Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975) thatthis standard does not apply to flat roofs.[6] See: National Realty & Construction Co. v.OSHRC & Secretary of Labor, 489 F.2d 1257 (D.C. Cir., 1973)”