“SECRETARY OF LABOR,Complainant,v.LEE ROY WESTBROOK CONSTRUCTION COMPANY,Respondent.OSHRC DOCKET NO. 84-0009_DECISION_Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:The issue in this case is whether Lee Roy Westbrook Construction Company(\”Westbrook\”), a concrete framing subcontractor working at amulti-employer construction site, had a legal obligation or duty under29 C.F.R. ? 1926.500(b)(1)[[1\/]] to protect its employees by guarding orcovering a floor opening even though the general contractor at the sitehad contractual responsibility for covering the opening. We find andconclude that Westbrook could and should have covered the floor opening.Accordingly, we uphold the decision of Administrative Law Judge StanleyM. Schwartz, which affirmed the citation issued by the Secretary of Labor.At the time of the alleged violation, Westbrook was working on theconstruction of a four-story office building in Dallas, Texas. Its jobwas to erect wooden forms (usually consisting of 4-inch by 4-inch or4-inch by 6-inch lumber) to hold up metal \”pan\” containers into whichconcrete would be poured by the general contractor, Connell ConstructionCompany. After the concrete had been poured, Westbrook would remove theforms and pans, leaving the concrete in place.On Nov. 15, 1983, one of the Secretary’s compliance officers, Jeffrey C.Rucker, inspected the jobsite. While there, he observed a Westbrookemployee, Mosles Gamas, coming down a ladder from the building’s fourthfloor to the third floor. Gamas, a laborer, had also used the ladder toget to the fourth floor to observe how forms he had helped place therewere holding up under concrete that was being poured for the building’spenthouse.The feet of the ladder were positioned along the edge of one side of anelevator shaft opening on the third floor. The ladder extended upwardacross the opening, and the top of the ladder rested against the edge ofthe opposite side of a similar opening directly above on the fourthfloor. The third floor shaft opening was 6 feet, 3 inches wide and 17feet long; it was not protected by either a guardrail or a cover. Theladder had been placed there that morning and had been in place for 2 to3-1\/2 hours before the compliance officer observed Gamas on the ladder.During that time period, the ladder was the only means of access to thefourth floor.Westbrook’s Gamas, and his foreman, Joseph L. Garcia, used the ladderseveral times on the day of the inspection while the third floor openingwas unguarded and uncovered. At a minimum, they used the ladder to getto their fourth floor workplace that morning, to descend from the fourthfloor so that they could go to lunch, to return to the fourth floorafter lunch, and to descend to the third floor during OSHA’s walkaroundinspection. The ladder may have been in a different location when theemployees first ascended to their work area in the morning, but therecord establishes that it was positioned next to the unprotected shaftopening on each of the other occasions. If either employee had fallenthrough the floor opening while on or near the ladder, he would havefallen 40 feet to the bottom of the elevator shaft.Prior to compliance officer Rucker’s inspection, the shaft opening onthe building’s fourth floor, above the third floor opening, was also notprotected by either a cover or guardrail. However, at some time duringthe two-hour interval between the compliance officer’s arrival at theworksite and the walkaround inspection, the general contractor’s onsiteforeman directed that the fourth floor opening be covered. Westbrookemployees Garcia and Gamas assisted the general contractor in coveringit. Lumber readily available at the job site was used to cover theopening, and no special equipment or special skills were needed to dothe job. During this two-hour interval, the general contractor’s foremanalso assured Westbrook foreman Garcia that the third floor opening wasnext in line to be covered, and this second opening was in fact coveredwithin 30 to 45 minutes of the compliance officer’s observation of thisalleged violation, after he had pointed it out to representatives bothof Westbrook and of the general contractor.After the inspection, Westbrook was issued a citation by the Secretaryalleging that Westbrook had violated 29 C.F.R. ? 1926.500(b)(1) by notguarding or covering the third floor elevator shaft opening. [[2\/]] TheSecretary alleged that the violation was serious and proposed a $450penalty.Commission Judge Schwartz affirmed the citation and assessed theproposed penalty. He found that there was \”no question that a violationof the [cited] standard existed\” and that there was \”no question thatdeath or serious physical injury could occur\” if an employee slipped offthe ladder.Judge Schwartz also held that Westbrook had failed to prove the limitedaffirmative defense available to some subcontractors on multi-employerconstruction sites. _See_ _Anning-Johnson Co._, 76 OSAHRC 54\/A2, 4 BNAOSHC 1193, 1975-76 CCH OSHD ? 20,690 (No. 3694, 1976); _Grossman Steel &Aluminum Corp._, 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ?20,691 (No. 12775, 1976). Although he found that Westbrook did notcreate the cited hazard, and assumed that the company did not controlthe hazard, the judge nevertheless rejected the employer’s defense onthe basis of his finding that Westbrook had not taken reasonablealternative measures to protect its employees from the fall hazardcreated by the unprotected floor opening. He stated that \”Westbrookshould have refused to commence work\” until the general contractor hadcovered all uncovered elevator shaft openings.On review before us, Westbrook does not dispute the judge’s finding thatthe unguarded elevator shaft opening violated the standard. The openingin question, which meets the Secretary’s definition of a \”flooropening,\” was not guarded by either a guardrail or cover, as required bythe cited standard. Westbrook foreman Joseph Garcia and laborer MoslesGamas were exposed to the unguarded floor opening when they used theladder set up next to the opening to get to and from their jobresponsibilities on the fourth floor. Knowledge of the violativeconditions is imputed to Westbrook through foreman Garcia, who not onlyobserved the unguarded floor opening, but repeatedly used the ladderpositioned next to it. We therefore conclude that the Secretary has mether burden of proving a prima facie violation of the cited standard._See_ _Dun-Par Engineered Form Co._, 12 BNA OSHC 1949, 1952, 1986-87 CCHOSHD ? 27,650 at p. 36,019 (No. 79-2553, 1986), _rev’d on othergrounds_, 843 F.2d 1135 (8th Cir. 1988) (elements of Secretary’sburden). The violation was serious, as alleged, since a 40-foot fallthrough the unguarded opening would probably result in death or seriousphysical harm.Westbrook defends against the violation by arguing that it has proventhe multi-employer construction site affirmative defense. In order toestablish that defense, Westbrook must prove, by a preponderance of theevidence, that:1. It did not create the violative condition; and2. It did not control the violative condition such that it could notrealistically have abated the condition in the manner required by thestandard; and3. (a) It made reasonable alternative efforts to protect its employeesfrom the violative condition; or(b) It did not have, and with the exercise of reasonable diligence couldnot have had, notice that the violative condition was hazardous._See_ _Anning-Johnson_, 4 BNA OSHC at 1198, 1975-76 CCH OSHD at pp.24,783-84; _Grossman Steel_, 4 BNA OSHC at 1189-90, 1975-76 CCH OSHD atpp. 24,791-92.The first element of Westbrook’s defense is not in dispute. JudgeSchwartz found, and the Secretary apparently concedes, that Westbrookdid not create the violative condition. The Secretary does, however,challenge the judge’s resolution of the second element of the defense.Judge Schwartz assumed, without deciding, that Westbrook also did notcontrol the violative condition. We agree with the Secretary, however,that Westbrook did in fact control the violative condition and that ithas therefore failed to establish its affirmative defense. [[3\/]]\”Control is established when it is shown that an employer possessed theexpertise and personnel to abate a hazard.\” _Union Boiler Co._, 11 BNAOSHC 1241, 1246, 1983-84 CCH OSHD ? 26,453 at p. 33,607 (No. 79-232,1983), _aff’d_, 732 F.2d 191 (4th Cir. 1984). Abatement of the hazardcaused by the uncovered third floor shaft opening was accomplished bycovering the opening with lumber. According to the foreman for thegeneral contractor, this task required no special equipment or specialskills, and it took only 30 minutes to complete it. The material used tocover the opening, 2-inch by 12-inch and 4-inch by 4-inch pieces oflumber, was readily available at the Jobsite.[[4\/]] Two Westbrookemployees, foreman Garcia and laborer Gamas, helped abate a similarhazard when they assisted the general contractor in covering theunprotected elevator shaft opening on the fourth floor. Since itpossessed the expertise [[5\/]] and personnel to abate the hazard,Westbrook has failed to establish its multi-employer construction siteaffirmative defense, and the Secretary’s citation is affirmed.Although this ruling resolves the issues before us, we have anadditional observation. We emphatically agree with Westbrook’s argumentthat Judge Schwartz erred in holding that Westbrook should have refusedto commence work until the general contractor had covered all uncoveredshafts. As Westbrook argues in its brief, Review commission precedentdoes not require such a stoppage of work. _See_ _Grossman Steel_, 4 BNAOSHC at 1189, n. 7, 1975-76 CCH OSHD at p. 24,791, n. 7. As a generalrule, a non-creating, non-controlling subcontractor is expected to finda means of protecting its employees against hazards that falls short ofremoving them from the worksite entirely.[[6\/]] Here, for example, asmentioned above, Garcia had been told by the general contractor’sforeman that the third floor opening would soon be covered. The recordtherefore suggests that foreman Garcia might have been able to find workfor Gamas and himself that would not have required them to be near thecited floor opening until it was covered. We do not believe that thesituation here was so exceptional as to justify the judge’s holding thatWestbrook should have walked off the job.We assess a penalty of $50. Only two employees were exposed to thehazard, and this exposure was only briefly while they used the ladder togo between the third and fourth floors on the day of the inspection.Furthermore, covering the shaft openings was the contractualresponsibility of the general contractor–not subcontractorWestbrook–and the general contractor had assured Westbrook that thecited opening would be covered. Indeed, the general contractor had, withWestbrook’s assistance, covered the fourth floor opening even before theOSHA walkaround began, lending credibility to Westbrook’s argument thatit relied in good faith upon the general contractor’s assurance that thethird floor opening would soon be covered. Under these circumstances, weconclude that it would not be \”appropriate\” to assess a substantialpenalty against Westbrook. See ? 17(j) of the Act, 29 U.S.C. ? 666(j).Accordingly, the Secretary’s citation alleging that Westbrook committeda serious violation of section 1926.500(b)(1) is affirmed, and a $50penalty is assessed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: March 22, 1989————————————————————————SECRETARY OF LABOR,Complainant,v.LEE ROY WESTBROOK CONSTRUCTION CO.,Respondent.OSHRC DOCKET NO. 84-0009Appearances:A. Reid Tilson, Esq.Dallas, TexasFor the Complainant.John F. McCarthy, Jr., Esq.Dallas, TexasFor the Respondent_DECISION AND ORDER_SCHWARTZ, Judge:This is a proceeding brought before the Occupational Safety and HealthReview Commission (\”the Commission\”) pursuant to Section 10 of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 _et_. _seq_.(\”the Act\”). Respondent contests an alleged serious violation of 29 CFR1926.500(b)(1). A penalty of $450 was proposed for the alleged seriousviolation.An inspection was conducted at Respondent’s workplace on November 7 and8, 1983. Respondent timely contested the subject citation. A hearing washeld on June 14, 1984, at Dallas, Texas. No additional persons desiredto intervene in this matter. Both parties have filed helpfulpost-hearing briefs._The Evidence_On November 7 and 8, 1983, Jeffery C. Rucker conducted an OSHAinspection of a four story building under construction. The Respondentwas a framing subcontractor at the subject worksite. The generalcontractor was Connell Construction Company (T. 8-9; 18; Exh. C-2; Exh.R-1).Rucker arrived at the worksite at approximately 11:00 a.m. on November7, 1983. He held an opening conference, broke for lunch, and started hisactual inspection after the employee lunch hour. Rucker inspected thebuilding from the top to the bottom. A steel stairwell provided accessto the third floor. The fourth floor was only accessible by a woodenladder. The ladder itself was placed over an open unguarded elevatorshaft. Rucker considered the ladder unsafe and did not use it to inspectthe fourth floor (Tr. 20-24).Rucker was accompanied throughout the inspection by Glenn Faries,Connell’s foreman at the job. Rucker issued an alleged serious citationfor 1926.500(b)(1). He found the wooden ladder at the edge of theelevator shaft opening. The opening was 17 feet long and 6 feet 3 incheswide. The drop was 40 feet to the elevator pit below. The pit containeda damper column and was filled with rebar and broken pieces of wood. Theladder was 36 inches wide and was midway in the opening. It completelyspanned the shaft opening. There were six to seven feet of uncoveredshaft space on each side of the ladder. The subject ladder was 15 feethigh (Tr. 24-27; Exh. C-3-5).Rucker perceived the hazard as an employee losing his balance with apotential fall of 40 feet to the pit below. The employee could becarrying tools or a broom while using the ladder. If he slipped, thelack of a cover over the shaft opening could cause a fatal fall. Themost typical way to prevent the hazard would be wood planking over thehole (Tr. 28-30).Rucker observed an employee of the general contractor use the ladder toreach the third floor. After observing this employee, Rucker and Farieswalked over to check the perimeter guarding. He looked back and sawanother employee come down the same ladder. The employee, through aninterpreter, was identified as Mosles Gamas, a Westbrook employee. Theinterpreter was Joe Garcia who served as Respondent’s foreman at the site.Gamas told Rucker he had used the ladder two or three times daily.Garcia, in response to Rucker’s question, indicated he too used theladder (T. 33-37; Exh. C-3). Rucker also testified the generalcontractor has overall responsibility for jobsite safety (T. 49).The Secretary also called Glenn Faries to testify. Faries was thegeneral contractor’s foreman at the subject jobsite. Westbrook had acontract to pan the floors. At the time of the inspection they werepouring concrete at the fourth floor level. The subject ladder was theonly way to move from the third floor to the fourth floor. Respondent’sworkday started at 7:00 a.m. Garcia was in charge of Westbrook’semployees. Faries accompanied Rucker throughout the inspection (T. 54-58).Faries believed that an employee would use the ladder three times a day.This would occur in the morning, at lunch, and possibly once or twice inthe afternoon. He indicated any employee working at the fourthlevel-penthouse would stay there until lunch. The employee would returnafter lunch and not leave until quitting time. The ladder was moved themorning of the inspection to the subject location. Connell corrected thecondition the day of the inspection. Faries used wood planks which wereavailable and no special skill was required. It took approximately 30minutes. Faries considered decking as the general contractor’sresponsibility (T. 59-61; 63-64; 66).Faries knew about the uncovered shafts. He testified the ladder had beenin place over the shaft for two-three hours. Prior to Rucker’s arrivalon the third floor, Faries was securing the fourth floor opening. He wasworking his way down and estimated the third floor would have beencompleted in another thirty to forty-five minutes. Garcia’s crew helpeddeck the fourth floor. Faries told Garcia his crew would finish thedecking. Faries chose to deck the fourth floor first because that waswhere the majority of the men were working (T. 65; 67; 70).Respondent called Westbrook’s foreman, Joe Garcia. Be indicated his crewconsisted of one employee and himself on that day. They were watching aconcrete pour on the fourth floor at the time of the inspection.Westbrook had been working on that floor the morning of the inspection.He had helped the general contractor cover the fourth floor opening (T.77; 81-82).Garcia indicated that he came down from the fourth level to the thirdlevel at the time of the inspection because he thought the OSHAinspector wanted to talk to him. Garcia indicated that he would not havecome down the ladder if the OSHA man had not called him. He also wouldnot allow anyone in his crew to use an unsafe ladder. Garcia wouldnormally not leave a concrete pour (T. 83-84).He testified that he used the subject ladder to reach the fourth floorthat morning. He used the ladder once in the morning and also aboutthree times a day. They used it to come down. He explained why he usedthe ladder three or four times a day. He used it when somebody calledhim at the office or he had something to do on the job. He alsoindicated his helper would use it at least two times. They had to usethe ladder one time to watch the pour. His helper used the ladder tofollow him down. The helper came down and asked \”what happened.\” Thehelper did not know the OSHA inspector was there (T. 85-86)._Opinion_The Secretary has alleged a serious violation of 29 CFR 1926.500(b)(1).The standard provides as follows:? 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 toeboardsor cover, as specified in paragraph (f) of this section. In general, therailing shall be provided on all exposed sides, except at entrances tostairways.There is no question that a violation of the standard existed at thesubject worksite. The elevator shaft opening was not covered.Respondent’s employees were exposed to a potential fall of approximatelyforty feet to the elevator pit below. The pit contained a damper columnas well as rebar. If an employee slipped off the ladder, there is noquestion that death or serious physical injury could occur. Consequentlythe violative condition must be considered serious within the meaning ofthe Act.Respondent contends that it fulfilled its responsibilities as asubcontractor in this case. The Commission has long held that if ahazard remains unabated, the employer who does not create or control thehazard will be relieved of any responsibility for violating the standardif it can establish that it used reasonable alternative means to protectits employees or had no actual or constructive knowledge that thecondition was hazardous. _Grossman Steel and Aluminum Corp._, 76 OSAHRC54\/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ? 20,691 (No. 12,775, 1975);_Anning-Johnson Co._, 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76 ? 20,690(Nos. 3694 and 4409, 1975). Whether the alternative methods ofprotection taken by the noncontrolling employer are sufficient toestablish an affirmative defense is decided on a case by case basis andwill depend on the circumstances at the workplace. _J.H. McKay Elec.Co._, 78 OSAHRC 77\/B10, 6 BNA OSHC 1947, 1978 CCH OSHC ? 23,026 (No.16110, 1978).With respect to the planking of unguarded elevator shafts, Respondent isa framing subcontractor at a multi-employer worksite. Respondent did notcreate the fall hazard. For purposes of the decision, I have assumedthat Respondent also did not control the hazard and that the generalcontractor had complete control of the hazard. The real question iswhether, under the circumstances of this case, Westbrook took reasonablealternative means to protect its employees.The first priority is to determine the exact nature of the hazardinvolved. In this case a ladder spanned a large elevator opening. Theshaft opening was uncovered exposing employees to a potential fall offorty feet. One slip could result in a serious injury or death. Thehazard could be abated by installing planks over the opening. Thematerial was readily available at the job. It would take thirty toforty-five minutes to abate this hazard.Respondent’s foreman, Garcia, was aware of the hazard. He was helpingthe general contractor abate the condition on the fourth floor. However,placed in its true context, Westbrook did not fulfull its responsibilityunder the Act to assure the safety of its employees, Garcia and Gamas.My reasons follow.Garcia was well aware of the danger. He used the ladder to leave thefourth floor because he thought the OSHA inspector called him. Thissingle transgression might be forgiven. However, the test is whetherWestbrook took reasonable alternative means to protect its employeesfrom the highly dangerous opening. Gamas was seen using the ladder byRucker. Garcia explained that Gamas followed him down to see whathappened. Gamas, according to Garcia, did not know the OSHA inspectorwas there. This transgression is the flaw in Westbrook’s reasoning. Theemployee Gamas, at the very least should have been warned not to usethat ladder until the third floor was planked. Gamas showed no concernfor the obvious hazard and Respondent therefore has not sustained itsburden of proof on this defense.In addition, the record supports a finding that Garcia and Gamas bothused the ladder several times prior to the abatement of the hazard. BothGamas and Garcia told Rucker they used the ladder. Faries estimated thatWestbrook employees would use the ladder in the morning and at lunch.Finally Garcia confirmed his use of the ladder at times other than whenhe thought the OSHA inspector called him. He clearly stated that he usedthe ladder to reach the fourth floor the morning of the inspection. Healso used it approximately three other times. Garcia used it whensomebody called him at tie office or he had something to do at theoffice. He also testified Gamas used it at least twice. This evidence,considered as a whole, leads to one finding. I find as fact that bothGarcia and Gamas used the ladder several times prior to the openingbeing covered by the general contractor.The above facts detract from Garcia’s statement that he would not allowanyone to come down an unsafe ladder. Rather it is clear that Garciatook no alternative methods to protect himself or Gamas from thedangerous condition existing at the worksite. Westbrook should haverefused to commence work until Connell Construction had covered alluncovered shafts. This small delay was fully justified when weighedagainst the seriousness of the violative condition. At the very minimum,foreman Garcia should have instructed Gamas, in no uncertain terms, tostay off the ladder until the hazard was corrected. Garcia himselfshould have followed these same precautions. Consequently, in view ofthe above, serious citation number 1 is affirmed.I now turn to the assessment of an appropriate penalty in this case. Theoverriding consideration is the high gravity of the violation. Twoemployees were exposed to a forty foot fall to the bottom of theelevator pit. This pit contained a damper column as well as rebar. Therethis violation. On balance, I conclude that the Secretary’s proposedpenalty of $450 is more than reasonable in light of the record and thestatutory criteria set forth in Section 17(j) of the Act._Conclusions of Law_1. Respondent, Lee Roy Westbrook Construction Co., is engaged in abusiness affecting commerce and has employees within the meaning ofSection 3(5) of the Act. The Commission has jurisdiction of the partiesand of the subject matter of this proceeding.2. On November 7, 1983, Respondent was in serious violation of 29 CFR1926.500(b)(1)._ORDER_On the basis of the foregoing Findings of Fact and Conclusions of Law,it is ORDERED that:1 . Item 1 of serious citation number 1 is affirmed and a penalty of;450 is assessed.STANLEY M. SCHWARTZAdministrative Law JudgeDate: October 19, 1984FOOTNOTES:[[1\/]] Section 1926.500(b)(1) provides:? 1926.500 _Guardrails, handrails, and covers_.* * *(b) _Guarding of floor openings and floor holes._ (1) Floor openingsshall be guarded by a standard railing and toeboards or cover, asspecified in paragraph (f) of this section. In general, the railingshall be provided on all exposed sides, except at entrances to stairways.[[2\/]] General contractor Connell Construction was similarly cited.[[3\/]] Westbrook incorrectly argues in its brief that the issue ofcontrol is not before us. From the outset, the central issue in thiscase has been whether Westbrook met its burden of proving the.affirmative defense established in the _Anning-Johnson_ and _GrossmanSteel_ decisions. We could not sustain that defense, as Westbrook urges,without first finding that it has established _all_ of the elements ofthe affirmative defense. Moreover, the element of \”control\” wasencompassed in the second of the two issues specified in ChairmanBuckley’s direction for review–\”Whether the judge erred in finding thatRespondent was in violation when Respondent neither created norcontrolled the violative condition.\” Finally, we note that the formerReview Commission procedural rule pertinent to this issue, rule 92(c) ,on which Westbrook bases its argument that the control issue is notbefore us, was construed by the Commission in _Hamilton Die Cast, Inc._,12 BNA OSHC 1797, 1802-1803, 1986-87 CCH OSHD ? 27,576 at pp. 35,824-25(No. 83-308, 1986). In that case, the Commission held that former rule92(c) was consistent with its view that the entirety of a case is beforethe Commission on review once a direction for review is issued,regardless of the scope of the issues expressly stated in the directionfor review. Current Review Commission procedural rule 92(a), 29 C.F.R. ?2200.92(a), provides that, unless otherwise specified, \”a direction forreview establishes jurisdiction in the Commission to review the entirecase.\”[[4\/]] The record suggests that this material was Westbrook’s property.Thus, the general contractor’s foreman testified that he had approachedWestbrook’s foreman about using the materials because Garcia \”had thematerial readily available\” that was needed to cover the openings.[[5\/]] The principal work of the two employees was the erecting anddismantling of wooden formwork. It is therefore clear that they hadsufficient carpentry skills to cover the cited floor opening.[[6\/]] OSHA’s current official enforcement guidelines for issuingcitations on multi-employer worksites take this same position.OSHA Instruction CPL 2.45A CH-10 (March 27, 1986), para. F.3.d.[citation wiIl not be issued to noncreating, noncontrolling employerthat takes specified precautions, including \”where feasible . . .alternative means of protecting employees from the hazard short ofwalking off the job (except when special circumstances require suchextreme action).\”]”