“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 4034, 4147 HAYDEN ELECTRIC SERVICES, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0July 28, 1976Jack S. Wallach, Atlanta,Ga., for Complainant.Kenneth G. Stevens, FortLauderdale, Fla., for Respondent.Review Commission JudgeJohn J. Larkin.\u00a0Before Barnako, Chairman; Moran and Cleary,Commissioners.CLEARY, Commissioner:OnApril 23, 1974, Administrative Law Judge John J. Larkin issued a decisionaffirming two citations for ?non-serious? violations of the Occupational Safetyand Health Act of 1970, 29 U.S.C. Sec. 651 et seq. [hereinafter cited as ??theAct?] and vacating a citation for ?serious? violation of the Act. The Secretarypetitioned the Commission for review of the Judge?s decision which held thatthe citation for ?serious? violation of 29 CFR Sec. 1926.500(d) (l)[1] be vacated because it wasnot established that there was employee exposure to the violation. TheSecretary excepted to the holding, claiming there was employee expo-sure to theviolation. The petition was granted on May 22, 1974.Respondent,Hayden Electric Services, Inc., is engaged in electrical contracting work. Inresponse to a complaint filed with the Secretary by one of respondent?semployees, an inspection of respondent?s workplace, a 19-story building underconstruction, was conducted by a compliance officer from the Department ofLabor. The violation of Sec. 1926.500(d)(1) was based on respondent?s allegedfailure to guard open-sided balconies where its employees were working on the4th through 17th floors of the building. A $500 penalty was proposed.Itis uncontroverted that the balconies in question were unguarded, that theymeasured approximately 15-feet long by 8-feet wide, and that the complianceofficer observed one of respondent?s employees installing a lighting fixture ona 16th floor balcony.Thegeneral contractor of the project had the contractual responsibility forerecting guardrails.Invacating the citation, Judge Larkin stated the following:The evidence in this case isuncontradicted that the employee?s duties would not have required that he becloser than five to seven feet of the open sided balcony. He installed a lightfixture the size of his hand, and wore a tool belt weighing 2? to 3 pounds. Togain access, he crossed over a 5\/8 to 7\/8 inch threshold strip near the wallcorner of the balcony. It is concluded that such facts are too nebulous toestablish that there was employee exposure to a fall hazard. Absent proof ofemployee exposure to a fall hazard, it must be held that the Secretary hasfailed to carry his burden of proof.?Respondent has not filed a brief onreview. The Secretary seeks reversal of the Judge?s decision. He argues thatrespondent?s employee was exposed to the hazard of falling from the balconydespite working several feet from the edge. The Secretary maintains that thepreventive purpose of the Act and the cited standard requires finding aviolation on the basis of potential exposure to the hazard.\u00a0TheCommission has recently held that exposure of a subcontractor?s employees to ahazard resulting from a breach of an occupational safety and health standardgives rise to a duty under section 5(a)(2) to do what is realistic in order toprotect the employees from the hazard. Anning-Johnson Co., 4 BNA OSHC1193 (Nos. 3694 & 4409, 1976); Grossman Steel and Aluminum Corp., 4BNA OSHC 1185 (No. 12775, 1976).Here,an employee was observed working within five to seven feet of an unguardedbalcony. We hold that work on the unguarded balcony is within the zone ofdanger resulting from the absence of the guard-rails. There was thus therequisite degree of exposure. Gilles & Cotting, Inc., 3 BNA OSHC2002, CCH OSHD para. 20,448 (No. 504, 1976), on remand from 504 F.2d 1255 [2OSHC 1243] (4th Cir. 1974).Whatis realistic for protecting the exposed employees may fall short of fullcompliance with the terms of a standard by the subcontractor, although fullcompliance would be expected by the general contractor or the controlling subcontractor.[2] What is realistic dependsupon a balance of the hazard involved with considerations of efficiency,economy, and equity. Cf. Anning-Johnson Co. v. O.S.H.R.C. and Brennan,516 F.2d 1081 [3 OSHC 1166] (7th Cir. 1975). Pursuant to the Commission holdingsin Anning-Johnson, supra and Grossman Steel & AluminumCorp., supra a subcontractor who has not created a hazard and has nocontrol over it may raise certain affirmative defenses to the allegedviolation.Inthis case, we hold that respondent?s employee was exposed to the hazard offalling that the cited standard was designed to prevent. Hence, there was abreach of employer?s duty under section 5(a)(2) of the Act to protect theemployee. We therefore affirm the citation.Thehazard of falling from the balcony is ?serious? within the meaning of section17(k). The substantial probability of death or serious physical harm resultingfrom a fall is obvious. But because it was the contractual duty of the generalcontractor to erect the guardrails and because of the employer?s good faith, weassess a penalty of $100. A larger penalty would serve no remedial purpose inthe circumstances of this case. In addition, we shall afford respondent anopportunity to present additional evidence and defenses consistent with thisopinion and Anning-Johnson and Grossman upon the filing of amotion re-questing this opportunity within ten (10) days from the date of thisorder.?So ORDERED.?Dissenting OpinionMORAN,Commissioner, dissenting:Thedisposition ordered in Judge Larkin?s decision, which is attached hereto asAppendix A [omitted], is correct and should be affirmed. The uncontrovertedevidence in this case establishes that the general contractor, and notrespondent, was responsible for the erection of guardrails at this worksite.With this decision my colleagues have once again rejected the sound principlethat the employer primarily at fault is the one who should be held liable. Anning-JohnsonCompany v. OSAHRC, 516 F.2d 1081, 1086 [3 OSHC 1166] (7th Cir. 1975); Brennanv. OSAHRC and Raymond Hendrix d\/b\/a Alsea Lumber Company, 511 F.2d 1139,1145 [2 OSHC 1646] (9th Cir. 1975). In its stead, they have adopted a rule thata contractor who has neither created a hazard nor is responsible for itscorrection has violated the Act unless he takes all ??realistic? measures andhas done whatever is ?reasonable? to protect his employees. For reasons which Isubstantiated at some length in my separate opinions in Secretary v.Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409 [4 OSHC 1193],May 12, 1976, Secretary v. Grossman Steel & Aluminum Corporation,OSAHRC Docket No. 12775 [4 OSHC 1185], May 12, 1976, and Secretary v. OtisElevator Company, OSAHRC Docket No. 8468 [4 OSHC 1219], May 14, 1976, thisrule is not only nebulous, difficult to apply, and fundamentally unfair, but istotally inconsistent with the Act under which this proceeding was brought.InAnning-Johnson Company v. OSAHRC, 516 F.2d 1081 [3 OSHC 1166] (7th Cir.1975), the Seventh Circuit held that the imposition of liability onsubcontractors merely because their employees were exposed to nonseriousviolations, which they neither created, caused, nor were otherwise responsiblefor, did not fulfill the purposes of the Act.[3] Although the Court in thatcase specifically limited its holding to nonserious violations, the reasonsadvanced by the Court for its decision make this doctrine equally applicable toviolations which have been categorized as ?serious? under 29 U.S.C. Sec. 666(j).Furthermore, there is no practical difference between ??serious? and?nonserious? violations. This lack of difference was noted by the Ninth Circuitin Brennan v. OSAHRC and Hendrix d\/b\/a Alsea Lumber Company, supraat 1144 of 511 F.2d [2 OSHC at 1650]:?Considering, as we must, the statute as awhole and 29 U.S.C. Sec. 666 in its entirety, we are convinced that Congressintended the same meaning for the word ?violation? wherever it appears. Section(c), containing the only reference to non-serious violations, must be read inconjunction with Section (b). Both relate to employers who have merely?received a citation.? Neither defines a violation. The sole difference betweensections (b) and (c) lies in the mandatory assessment of penalty for seriousviolations and the permissive assessment for nonserious violations.? (Footnoteomitted.)\u00a0Asthe Seventh Circuit pointed out, in Anning-Johnson, supra, theprimary purpose of the Act is not to punish, but to achieve correction ofsafety hazards.[4]Requiring several employers to correct violations is no more likely to achievethis goal than requiring one to do so, and may, in fact, impede its attainment.The Secretary?s position is premised onthe theory that the more people responsible for correcting any violation, themore likely it will get done. This is, of course, not necessarily true. Placingresponsibility in more than one place is at least as likely to cause confusionand disruption in normal working relationships on a construction site. Such apolicy might in effect prove to be counterproductive.[5]\u00a0Inaddition to the confusion that complainant?s theory of multi-employer liabilitycreates, the Court was also concerned about its impracticability andwastefulness. Such a scheme of liability requires that each craft at aconstruction site be familiar with the occupational safety and health standardspertaining to the working conditions of all other crafts at the site. Even inthe rather improbable event that this level of knowledge can be achieved,multi-employer responsibility for violations will require multiple outlays oftime and money to discover non-complying conditions. Moreover, if theresponsible contractor cannot be persuaded to take the necessary correctiveaction once such a condition is discovered, a subcontractor who does not haveemployees qualified to correct a hazard has the choice of hiring employees withthe necessary skills to correct the condition or of removing his employees fromthe worksite. Both alternatives are disruptive and costly, and neither is trulyfeasible.[6] A correction requirementplaced upon such a contractor is also very likely to force him to violate theagreement under which his work is being conducted, collective bargainingcontracts, or both. Consequently, to impose such a requirement is to requirethe employer to achieve the impossible.[7]Theseconsiderations apply irrespective of how the alleged violation may becategorized. For example, unless successful in cajoling the general contractorto erect guardrails, respondent in this case, an electrical subcontractor,would either have to hire employees with the necessary skills to perform thistask or remove his employees from the worksite to escape liability. Bothalternatives may subject him to charges of contract violation. The sameobjective, abatement of the hazard, could be achieved if complainant directedhis citation to the contractor responsible for the existence of this hazardouscondition. It is impossible to perceive how the objectives of the Act are furtheredby finding respondent in violation under these circumstances.Finally,I disagree with the majority?s finding that an experienced workman ?workingwithin five to seven feet of an unguarded balcony,? on the facts present inthis case is thereby ?within the zone of danger resulting from the absence ofguard-rails.? To so hold is to presume that the workman is not conscious of hissurroundings-a presumption which has no validity whatsoever. Sidewalks alongbusy highways which present hazards equally as dangerous as unguardedbalconies, are generally closer thereto than five to seven feet. There is noauthority however, which seriously proposes that a guarding system be erectedto prevent pedestrians from stepping off the sidewalk into the midst of oncomingtraffic, nor does anyone presume that any pedestrian would be so oblivious ofthe traffic hazard as to do so. I am sure that the danger-consciousness of anexperienced workman-used to working at high elevations-is far above that of theaverage pedestrian.[No ALJ opinion available].[1] The standard provides in relevantpart as follows: Sec. 1926.500 Guardrails, Handrails, and Covers* * *(d) Guarding ofopen-sided floors, platforms and runways(1) Everyopensided floor or platform 6 feet or more above adjacent floor or ground levelshall be guarded by a standard railing, or the equivalent, as specified inparagraph (f)(i) of this section, on all open sides. …[2] Section 5(a)(2) were interpreted asapplying only to employers with enough control to comply fully with the termsof a standard, Commissioner Cleary would require under section 5(a)(1), thegeneral duty clause, that a non-controlling subcontractor take interim measuresto protect employees when that clause otherwise applies.[3] 516 F.2d at 1091.[4]Id. at 1088.\u00a0[5] Id. at1089.\u00a0[6] Id. at1089-91.[7] ?The employer?s duty, even thatunder the general duty clause, must be one which is achievable,? Brennanv. OSAHRC and Hendrix, d\/b\/a Alsea Lumber Company, supra, at 1144-1145,emphasis supplied.”