“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 16155 GOTHAM ELECTRIC COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 30, 1977DECISIONBefore: CLEARY, Chairman;and BARNAKO, Commissioner.BY THE COMMISSION:??????????? This case is before the Commission pursuant to orders byCommissioner Barnako and Commissioner Moran[1] granting respondent?spetition for discretionary review. Administrative Law Judge Dee C. Blytheaffirmed a citation alleging ?nonserious? violations of section 5(a)(2) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 et seq. for failureto comply with four construction safety standards. A total penalty of $100 wasassessed for the violations.??????????? On October 21, 1975, a safety inspection was conducted ata worksite in Dallas, Texas, on which respondent was the electricalsubcontractor. During the course of the inspection, the compliance officerobserved one of respondent?s employees walk through an area strewn with rubble.This was subsequently cited as a violation of 29 CFR ? 1926.25(a).[2] He also observed that thejob-made ladders said to have been used by respondent?s employees to reach theupper floors of the building were without cleats or filler blocks. Thiscondition was cited as being violative of 29 CFR ? 1926.450(b)(12).[3]??????????? The other items of the citation dealt with the lack ofproper guardrails. Two openings similar to elevator shafts on the first floorand one on the second floor were alleged to have been without proper railingsor covers, as required by 29 CFR ? 1926.500(b)(1).[4] In addition the second,third, and fourth floors were alleged to have been opensidedand without proper perimeter guarding or the equivalent, as required by 29 CFR ?1926.500(d)(1).[5]Respondent?s employees testified that their duties required working inproximity to these hazards. There is evidence that employees of respondentrequested the general contractor to correct the housekeeping and guardrailhazards, but the record is unclear as to the nature and extent of theserequests.??????????? Although Judge Blythe held that respondent neithercreated nor controlled the conditions, he affirmed the citation because heconcluded that respondent?s employees were exposed to the conditions. The Judgerejected respondent?s argument, based on Anning-Johnson Co. v. O.S.H.R.C.,516 F.2d 1081 (7th Cir. 1975), that a subcontractor on a multi-employerconstruction site is not responsible for non-serious violations it did notcreate or control, even though its employees are exposed to the hazards. Healso found that Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (5thCir. 1975) was not applicable here. ??????????? Subsequent to the Judge?s decision, the Commissiondecided Grossman Steel and Aluminum Corp., 76 OSAHRC 54\/D9, 4 BNA OSHC1185, 1975 76 CCH OSHD para. 20,691 (No. 12775, 1975), and Anning-Johnson Co.,76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975 76 CCH OSHD para.20,690 (No. 4409, 1976). In those cases we declined to follow in all respectsthe Seventh Circuit?s Anning-Johnson decision. We held that, where theusual elements of employer liability are established, a subcontractor on amulti-employer construction site who did not create a violation and lacked theability to abate within the literal terms of the standard may defendaffirmatively by showing that it took realistic steps, as an alternative toliteral compliance with the standard, to protect its employees. See also MayfairConstruction Co., 77 OSAHRC 178\/A14, 5 BNA OSHC 1877, 1977 78 CCH OSHDpara. 22,214 (No. 2171, 1977); Donovan Elec. Co., No. 13822 (November10, 1977).??????????? Here, evidence establishes the exposure of respondent?semployees to the cited violations. On the record before us respondent has notproved any affirmative defense of the type described above. In particular, wecannot conclude that the requests made to the general contractor weresufficiently definite and forceful to have been a realistic alternative toliteral compliance. However, because the Judge?s decision preceded Grossmanand Anning-Johnson, and because there is evidence that respondentundertook some action to attempt to protect its employees, we affirm the Judge?sdecision contingent upon respondent not requesting within ten (10) days anopportunity to assert the described defenses and to adduce evidence bearing onthose defenses.?SoORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.Acting Executive SecretaryDated: December 30, 1978\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 16155 GOTHAM ELECTRIC COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 May 19, 1976Appearances:Arnold S. Battise, Esq., and Heriberto deLeon,Esq., of Dallas, Texas, for the Department of Labor\u00a0Thomas P. Goranson, Esq., of Dallas, Texas, for the Respondent?STATEMENTOF THE CASEBLYTHE, Judge:??????????? This is a proceeding brought pursuant to ? 10 under theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 et seq. (the Act),contesting a citation issued by the complainant, the Secretary of Labor (theSecretary), against the respondent, Gotham Electric Company, Inc., under theauthority vested in the complainant by ? 9(a) of the Act. The citation, issuedNovember 12, 1975, alleges on the basis of an inspection on October 21, 1975,of a place of employment located at 5323 Harry Hines, Dallas, Texas, that therespondent violated ? 5(a)(2) of the Act by failing to comply with fourstandards promulgated by the Secretary. The pertinent allegations of thecitation were as follows:? Citation No. 1 Item No. Standard Description of alleged violation \u00a0 1 29 CFR 1926.25(a) \u00a0 Housekeeping was not maintained at the following location: Construction site on the 2nd floor, north 1\/2 section of structure. 2 29 CFR 1926.450(b)(12) \u00a0 Ladder cleats were not inset and\/or filler blocks were not installed. Job made ladder?location?north end of structure on 2nd, 3rd, and 4th floors. \u00a0 3 29 CFR 1926.500(b)(1) \u00a0 Floor openings at the following locations were not guarded by standard railings or covers: Openings similar to elevator shafts on the 1st floor, north end of structure (next to gangwall ramp), 2nd floor, north section of structure, and 1st floor, middle section of the building. \u00a0 4 29 CFR 1926.500(d)(1) Open-sided floors, more than six (6) feet above adjacent floor level in the following locations, were not guarded by standard railings or the equivalent on all open sides and no toeboards were provided: Wire rope cable (1) and toeboards on the 2nd, 3rd, and 4th floors, northwest end. \u00a0 \u00a0??????????? The standards involved are:1926.25(a): Duringthe course of construction, alteration, or repairs, form and scrap lumber withprotruding nails, and all other debris, shall be kept cleared from work areas,passageways, and stairs, in and around buildings or other structures.?1926.450(b)(12): Cleats [of ladders] shall be inset into the edges ofthe side rails one-half inch, or filler blocks shall be used on the railsbetween the cleats. The cleats shall be secured to each rail with three 10dcommon wire nails or other fasteners of equivalent strength. Cleats shall beuniformly spaced, 12 inches top-to-top.?1926.500(b)(1): Flooropenings shall be guarded by a standard railing and toe boards or cover, asspecified in paragraph (f) of this section. In general, the railing shall beprovided on all exposed sides, except at entrances to stairways.?1926.500(d)(1): Everyopensided floor or platform 6 feet or more aboveadjacent floor or ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(1) of this section, on all opensides, except where there is entrance to a ramp, stairway, or fixed ladder. Therailing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials could create ahazard.???????????? The violations were alleged to be other than serious, andthe proposed penalties totaled $100 (none for Item 1, $30 for Item 2, $35 forItem 3, and $35 for Item 4). Notice of contest (contesting all four items) wasserved on December 8, 1975; the complaint was served on December 23, 1975; andthe answer was served on January 7, 1976. All pleadings appear to have beentimely filed. No employees or representatives of affected employees haveappeared or participated in this proceeding. The hearing was held on February25, 1976, at Dallas, Texas; both sides have submitted briefs; and the matter isnow ripe for decision.THEISSUES??????????? The issues to be determined are:??????????? 1. Whether respondent, a subcontractor whose employeeswere exposed to the hazards, was responsible for nonserious violations whichwere created by others.??????????? 2. Whether respondent, with the exercise of reasonablediligence, should have known of the violative conditions.DISCUSSIONAND OPINION??????????? There is essentially no dispute concerning the facts,many of which were stipulated. Respondent was one of a number of subcontractorsengaged in the construction of a multi-storied building, respondent beingresponsible for the complete electrical installation. It had six employees atthat work place. Since the existence of the violations is undisputed, and sincerespondent does not contend its employees were not exposed to the hazards, nouseful purpose would be served by discussing the violative conditions indetail. It is clear from the stipulated facts and from the evidence adduced atthe hearing that none of the violative conditions was created by respondent,and complainant does not contend otherwise. Thus it is possible to come togrips at once with the two issues raised by respondent, stated above.??????????? The Commission consistently has held a subcontractorwhose employees are subject to a condition violative of the Act is responsibleeven where others created the condition or control the site thereof, Secretaryv. R. H. Bishop Co., 8 OSAHRC 930 (1974), if he knew or with the exerciseof reasonable diligence could have discovered the presence of the violation, Secretaryv. Savannah Iron and Fence Corp., 10 OSAHRC 1 (1974).??????????? Two courts of appeals have differed on this question, Brennanv. OSHRC (Underhill Construction Corp.), 513 F. 2d 1032 (2d Cir., 1975),favoring the Commission?s position, and Anning-Johnson Co. v. OSHRC, 516F. 2d 1081 (7th Cir., 1975), opposing it. In the absence of an applicabledecision in this (the Fifth) Circuit, the Commission?s decisions are binding. Secretaryv. Juhr & Sons, No. 2314 (January 1, 1976).This is so even though the Commission has stated in two recent decisions thatit is reconsidering these issues in pending cases. Secretary v. Gilles &Cotting, Inc., No. 504 (on remand, February 20,1976), and Secretary v. Electrical Contractors Associates, Inc., No.10108 (February 24, 1976).??????????? Respondent relies heavily on Anning-Johnson andcontends that, even if it is not controlling in this Circuit, there is a FifthCircuit case which is controlling, Southeast Contractors, Inc. v. Dunlop,512 F. 2d 675 (5th Cir., 1975), reversing Secretary v. SoutheastContractors, Inc., 8 OSAHRC 285 (May 8, 1974), CCH 1973?1974 OSHD, ?17,787.??????????? Respondent?s reliance on Southeast Contractors ismisplaced. It turned on the question of whether a respondent who leased a truckand its driver from another company was the driver?s ?employer? so that it wasliable for the ?use? of the truck without the reverse signals required by 29CFR ? 1926.601(b)(4). In a per curiam opinion, the Fifth Circuit said,We are inagreement with the well-reasoned dissent of Chairman Moran of the OccupationalSafety and Health Review Commission in this matter, and especially that portionpertaining to the general rule that a contractor is not responsible for theacts of his subcontractors or their employees; accordingly, that the tractordriver was not an employee of respondent. Therefore, respondent was not usingthe motor vehicle involved in this case at the time of the accident within themeaning of 29 C.F.R. ? 1926.601(b)(4), and the majority ruling of theCommission is erroneous.???????????? While the foregoing language, if taken out of context,would seem to bolster respondent?s position, a close examination shows that itdoes not. The standard there involved was a ?use? standard, whereas all of thestandards here involved are the ?specification? type. None of the standardshere involved is prefaced with the words, ?no employer shall use,? found in 29CFR 1926.601(b)(4). Thus the principles involved arequite different.??????????? Respondent also contends, ?In a recent decision [Secretaryv. Bechtel Power Corp., No. 5064 (March 11, 1976), CCH OSHD ? 20,503], theReview Commission acknowledged the Anning-Johnson case. There theCommission stated:The holding of theSeventh Circuit is narrow. Among other things, it is limited to a subcontractorhaving severe problems in abating hazards resulting from a violation of astandard.?But the Commission wasdistinguishing the Anning-Johnson case, not ?acknowledging? it in thesense respondent apparently means.??????????? Respondent also contends that the complainant has theburden of proving that it had actual knowledge of the violative conditions, andit points out that the only evidence on this subject, from its president,Herbert Gold, was to the effect that he did not learn of the violations untilafter the inspection. It quotes from Horne Plumbing & Heating Co. v.OSHRC, ?? F. 2d ?? (5th Cir., 1976), CCH OSHD ?20,504, at p. 24,508:In summary, weconclude that it would be inconsistent with the purposes and policies of theAct and contrary to the express language of ? 17(k) to penalize Horne forviolations of which he had no knowledge, which he could not have foreseen,and which he had taken such elaborate measures to prevent.(Emphasis supplied.)\u00a0??????????? Horne involved the ?idiosyncratic? behavior of anemployee, not a condition which was obvious and could be ascertained by even acasual inspection. The employer cannot stick its head in the sand and say thatit did not know about the hazards to which its employees were subjected when iteasily could learn about them. The conditions here involved must bedistinguished, of course, from hazards requiring some form of expertise todetect them.??????????? The only question remaining is that of an appropriatepenalty for the violations. Here the respondent was charged with ?other thanserious? violations, although two of the items involved lack of guardrails atelevations from the second to the fourth floors on the building. Normally,these would be classed as ?serious? violations, for obviously a fall from sucha height would cause death or serious bodily injury. However, the employer?ssize is small, and it has no history of previous violations. A maximum of sixemployees was exposed to the hazards, and the probability of an injury wasmoderate. Therefore, the penalties proposed by the Secretary appear to beappropriate.FINDINGSOF FACT??????????? On the basis of the pleadings, stipulations of theparties, and evidence of record, the following facts are found:??????????? 1. The respondent, Gotham Electric Company, Inc., is acorporation having a place of business at Dallas, Texas, is engaged in businessas an electrical contractor, and at all time material to this proceeding was anemployer engaged in a business affecting commerce, who has employees, within inthe meaning of the Act. It has six employees, and in 1975 its gross income wasabout $1,000,000. (Pleadings, Tr. 88). Its contract for the job here involvedprovided for payments to it of $1,515,919 (Exhibit R?1).???????????? 2. At all material times the respondent was one ofseveral subcontractors engaged in the construction of the Clinical Sciences andAnimal Resources Center, University of Texas Health Science Center, at 5323Harry Hines Blvd., Dallas, Texas (Tr. 67). It had no other jobs going at thattime, and all of its employees were employed at said jobsite (Tr. 88).??????????? 3. The contract between respondent and the generalcontractor, La Roe Building Company, Inc., provided, ?Subcontractor agrees tocomply with all laws and regulations applicable to the work covered by thiscontract, including but not limited to the Occupational Safety and Health Actof 1970 . . .? (Exhibit R?1).??????????? 4. Respondent, as a member of Northeast Texas Chapter,National Electrical Contractors Association (NECA), was bound by a collectivebargaining agreement between NECA and Local Union No. 59, InternationalBrotherhood of Electrical Workers (IBEW), which agreement, enter alia, providedfor a safety program. As parts of this program, the agreement provides, ?TheUnion agrees to inform all workmen of their responsibility for safe workinghabits and requirements of all Occupational Safety and Health Laws.? Thisagreement, Exhibit R?10, covers installation of ?all electrical equipment,appliances, apparatus, and materials,? but does not specifically forbidrequiring IBEW members to engage in non-electrical work, such as erection ofguardrails. However, respondent had no carpenter in his employ (Stipulation11).[6]??????????? 5. On October 21, 1975, when portions of the building hadbeen erected to the fifth floor level, complainant?s compliance officerconducted an inspection of the jobsite and found the following conditions toexist;??????????? (a) The floors, up to the fourth, were littered withscrap lumber with protruding nails, paper, wire, cans, metal and other assorteddebris which exposed employees to a hazard of tripping and falling (Tr. 9?12).None of this debris was created, deposited or left by respondent. From time totime respondent?s employees were in proximity to or walked through such debris(Stipulation 5).??????????? (b) Job-made ladders, which provided access betweenfloors, had cleats which were simply nailed to, rather than being inset into,the side rails, and there were no filler blocks between the cleats. The hazardposed by these ladders was that the nails holding the cleats to the rails mightpull out, allowing an employee to fall (Tr. 12?19).??????????? (c) Four floor openings similar to elevator shafts on thefirst and second floors were not provided with standard guard railings orcovers (Tr. 19?23). One of the floor openings on the first floor had a shakyguardrail which had no midrail (Exhibit C?8; Tr. 20).The hazard posed by these conditions was falling distances varying from 12 to24 feet (Tr. 21, 25).??????????? (d) Standard guard railings or the equivalent were notprovided on open sides of the second, third, and fourth floors at the northwestend of the building. On the west side of the second floor there was noguardrail. On the third floor there was a sagging cable about 40 inches high,with no intermediate rail or toeboards (Tr. 23?27). The hazard posed toemployees was falling distances up to 50 feet (Tr. 25).??????????? 6. On October 21, 1975, none of respondent?s employeeshad occasion to use the ladders mentioned in 5(b) or to go above the secondfloor (Tr. 42, 43, 57). However, they used the ladders and were on the firstfour floors on October 20, 1975, and prior occasions.[7] All of respondent?semployees were within the zone of danger of the hazards complained of, and atleast two of its employees were actually exposed to each of said hazards.??????????? 7. Respondent knew or in the exercise of reasonablediligence should have known of the existence of said hazards and that itsemployees would be exposed thereto.??????????? 8. Respondent made no effort to prevent exposure of itsemployees to or to correct said violative conditions. All of said conditionswere abated by the general contractor after it, too, was cited therefor(Stipulation 6).CONCLUSIONSOF LAW??????????? On the basis of the foregoing findings of fact, thefollowing conditions of law are made:??????????? 1. The Commission has jurisdiction of the parties and ofthe subject matter of this proceeding.??????????? 2. On October 21, 1975, the respondent was in nonseriousviolation of ? 5(a)(2) of the Act by failing to comply with 29 C.F.R.1926.25(a).??????????? 3. On October 20, 1975, the respondent was in nonseriousviolation of ? 5(a)(2) of the Act by failing to comply with 29 C.F.R.1926.450(b)(12), 29 C.F.R. 1926.500(b)(1), and 29C.F.R. 1926.500(d)(1).??????????? 4. The sum of $100 is an appropriate civil penalty to beassessed for said violations pursuant to the provisions of ? 17(j) of the Act.ORDER??????????? On the basis of the foregoing findings of fact andconclusions of law, it is ORDERED that:??????????? 1. Citation 1 for nonserious violations of 29 C.F.R. Part1926, ?? 25(a), 450(b)(12), 500(b)(1), and 500(d)(1),be and it hereby is affirmed.??????????? 2. A civil penalty in the sum of $100 be and it hereby isassessed for said violations.??????????? 3. The proceeding be and ithereby is terminated.?DEE C. BLYTHEADMINISTRATIVE LAW JUDGEMay 19, 1976[1] Commissioner Moran?s term expired on April27, 1977.[2] ? 1926.25 Housekeeping.(a) During the course ofconstruction, alteration, or repairs, form and scrap lumber with protrudingnails, and all other debris, shall be kept cleared from work areas,passageways, and stairs, in and around buildings or other structures.[3] ? 1926.450 Ladders.(b) Job-made ladders(12) Cleats shall be inset into theedges of the side rails one-half inch, or filler blocks shall be used on therails between the cleats. The cleats shall be secured to each rail with three10d common wire nails or other fasteners of equivalent strength. Cleats shallbe uniformly spaced, 12 inches top-to-top.[4] ? 1926.500 Guardrails, handrails, andcovers.(b) Guarding of floor openings andfloor holes.(1) Floor openings shall be guardedby a standard railing and toeboards or cover, as specified in paragraph (f) ofthis section. In general, the railing shall be provided on all exposed sides exceptat entrances to stairways.[5] ? 1926.500 Guardrails, handrails, andcovers.(d) Guarding of open-sided floors,platforms, and runways. (1) Every open-sided floor or platform 6 feet or moreabove adjacent floor or ground level shall be guarded by a standard railing, orthe equivalent . . ..[6]Respondenthas moved, without opposition, to correct an apparent error at p. 69, 1. 12 ofthe transcript, where its president, Herbert Gold, is reported as answering?Yes, sir? to the question, ?Do you employ in your company any carpenters?? Theparties previously had stipulated to the contrary. The motion is granted.[7] Complainant hasfiled a post-hearing motion pursuant to Rule 15(b), FRCP, to amend thecomplaint to conform to the proof to allege that the violation of ??450(b)(12), 500(b)(1) and 500(d)(1) of 29 C.F.R. Part 1926 occurred on October20, 1975. This motion is not resisted and will be granted.”