“Docket No. 84-0009 SECRETARY OF LABOR, Complainant, v. LEE ROY WESTBROOK CONSTRUCTION COMPANY, Respondent.OSHRC DOCKET NO. 84-0009DECISIONBefore: 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 a multi-employerconstruction site, had a legal obligation or duty under 29 C.F.R. ? 1926.500(b)(1)[[1\/]]to protect its employees by guarding or covering a floor opening even though the generalcontractor at the site had contractual responsibility for covering the opening. We findand conclude that Westbrook could and should have covered the floor opening. Accordingly,we uphold the decision of Administrative Law Judge Stanley M. Schwartz, which affirmed thecitation issued by the Secretary of Labor.At the time of the alleged violation, Westbrook wasworking on the construction of a four-story office building in Dallas, Texas. Its job wasto erect wooden forms (usually consisting of 4-inch by 4-inch or 4-inch by 6-inch lumber)to hold up metal \”pan\” containers into which concrete would be poured by thegeneral contractor, Connell Construction Company. After the concrete had been poured,Westbrook would remove the forms and pans, leaving the concrete in place.On Nov. 15, 1983, one of the Secretary’s complianceofficers, Jeffrey C. Rucker, inspected the jobsite. While there, he observed a Westbrookemployee, Mosles Gamas, coming down a ladder from the building’s fourth floor to the thirdfloor. Gamas, a laborer, had also used the ladder to get to the fourth floor to observehow forms he had helped place there were holding up under concrete that was being pouredfor the building’s penthouse.The feet of the ladder were positioned along the edgeof one side of an elevator shaft opening on the third floor. The ladder extended upwardacross the opening, and the top of the ladder rested against the edge of the opposite sideof a similar opening directly above on the fourth floor. The third floor shaft opening was6 feet, 3 inches wide and 17 feet long; it was not protected by either a guardrail or acover. The ladder had been placed there that morning and had been in place for 2 to 3-1\/2hours before the compliance officer observed Gamas on the ladder. During that time period,the ladder was the only means of access to the fourth floor.Westbrook’s Gamas, and his foreman, Joseph L. Garcia,used the ladder several times on the day of the inspection while the third floor openingwas unguarded and uncovered. At a minimum, they used the ladder to get to their fourthfloor workplace that morning, to descend from the fourth floor so that they could go tolunch, to return to the fourth floor after lunch, and to descend to the third floor duringOSHA’s walkaround inspection. The ladder may have been in a different location when theemployees first ascended to their work area in the morning, but the record establishesthat it was positioned next to the unprotected shaft opening on each of the otheroccasions. If either employee had fallen through the floor opening while on or near theladder, he would have fallen 40 feet to the bottom of the elevator shaft.Prior to compliance officer Rucker’s inspection, theshaft opening on the building’s fourth floor, above the third floor opening, was also notprotected by either a cover or guardrail. However, at some time during the two-hourinterval between the compliance officer’s arrival at the worksite and the walkaroundinspection, the general contractor’s onsite foreman directed that the fourth floor openingbe covered. Westbrook employees Garcia and Gamas assisted the general contractor incovering it. Lumber readily available at the job site was used to cover the opening, andno special equipment or special skills were needed to do the job. During this two-hourinterval, the general contractor’s foreman also assured Westbrook foreman Garcia that thethird floor opening was next in line to be covered, and this second opening was in factcovered within 30 to 45 minutes of the compliance officer’s observation of this allegedviolation, after he had pointed it out to representatives both of Westbrook and of thegeneral contractor.After the inspection, Westbrook was issued a citationby the Secretary alleging that Westbrook had violated 29 C.F.R. ? 1926.500(b)(1) by notguarding or covering the third floor elevator shaft opening. [[2\/]] The Secretary allegedthat the violation was serious and proposed a $450 penalty.Commission Judge Schwartz affirmed the citation andassessed the proposed penalty. He found that there was \”no question that a violationof the [cited] standard existed\” and that there was \”no question that death orserious physical injury could occur\” if an employee slipped off the ladder.Judge Schwartz also held that Westbrook had failed toprove the limited affirmative defense available to some subcontractors on multi-employerconstruction sites. See Anning-Johnson Co., 76 OSAHRC 54\/A2, 4 BNA OSHC1193, 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). Althoughhe found that Westbrook did not create the cited hazard, and assumed that the company didnot control the hazard, the judge nevertheless rejected the employer’s defense on thebasis of his finding that Westbrook had not taken reasonable alternative measures toprotect its employees from the fall hazard created by the unprotected floor opening. Hestated that \”Westbrook should have refused to commence work\” until the generalcontractor had covered all uncovered elevator shaft openings.On review before us, Westbrook does not dispute thejudge’s finding that the unguarded elevator shaft opening violated the standard. Theopening in question, which meets the Secretary’s definition of a \”flooropening,\” was not guarded by either a guardrail or cover, as required by the citedstandard. Westbrook foreman Joseph Garcia and laborer Mosles Gamas were exposed to theunguarded floor opening when they used the ladder set up next to the opening to get to andfrom their job responsibilities on the fourth floor. Knowledge of the violative conditionsis imputed to Westbrook through foreman Garcia, who not only observed the unguarded flooropening, but repeatedly used the ladder positioned next to it. We therefore conclude thatthe Secretary has met her burden of proving a prima facie violation of the cited standard.See Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1952, 1986-87 CCH OSHD ?27,650 at p. 36,019 (No. 79-2553, 1986), rev’d on other grounds, 843 F.2d 1135 (8thCir. 1988) (elements of Secretary’s burden). The violation was serious, as alleged, sincea 40-foot fall through the unguarded opening would probably result in death or seriousphysical harm.Westbrook defends against the violation by arguingthat it has proven the multi-employer construction site affirmative defense. In order toestablish that defense, Westbrook must prove, by a preponderance of the evidence, that:1. It did not create the violative condition; and 2. It did not control the violative condition suchthat it could not realistically have abated the condition in the manner required by thestandard; and 3. (a) It made reasonable alternative efforts toprotect its employees from the violative condition; or (b) It did not have, and with the exercise of reasonable diligence could not 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; GrossmanSteel, 4 BNA OSHC at 1189-90, 1975-76 CCH OSHD at pp. 24,791-92.The first element of Westbrook’s defense is not indispute. Judge Schwartz found, and the Secretary apparently concedes, that Westbrook didnot create the violative condition. The Secretary does, however, challenge the judge’sresolution of the second element of the defense. Judge Schwartz assumed, without deciding,that Westbrook also did not control the violative condition. We agree with the Secretary,however, that Westbrook did in fact control the violative condition and that it hastherefore failed to establish its affirmative defense. [[3\/]]\”Control is established when it is shown that anemployer possessed the expertise and personnel to abate a hazard.\” Union BoilerCo., 11 BNA OSHC 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 hazard caused by theuncovered third floor shaft opening was accomplished by covering the opening with lumber.According to the foreman for the general contractor, this task required no specialequipment or special skills, and it took only 30 minutes to complete it. The material usedto cover the opening, 2-inch by 12-inch and 4-inch by 4-inch pieces of lumber, was readilyavailable at the Jobsite.[[4\/]] Two Westbrook employees, foreman Garcia and laborer Gamas,helped abate a similar hazard when they assisted the general contractor in covering theunprotected elevator shaft opening on the fourth floor. Since it possessed the expertise[[5\/]] and personnel to abate the hazard, Westbrook has failed to establish itsmulti-employer construction site affirmative defense, and the Secretary’s citation isaffirmed.Although this ruling resolves the issues before us,we have an additional observation. We emphatically agree with Westbrook’s argument thatJudge Schwartz erred in holding that Westbrook should have refused to commence work untilthe general contractor had covered all uncovered shafts. As Westbrook argues in its brief,Review commission precedent does not require such a stoppage of work. See GrossmanSteel, 4 BNA OSHC 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 find a means ofprotecting its employees against hazards that falls short of removing them from theworksite entirely.[[6\/]] Here, for example, as mentioned above, Garcia had been told bythe general contractor’s foreman that the third floor opening would soon be covered. Therecord therefore suggests that foreman Garcia might have been able to find work for Gamasand himself that would not have required them to be near the cited floor opening until itwas covered. We do not believe that the situation here was so exceptional as to justifythe judge’s holding that Westbrook should have walked off the job.We assess a penalty of $50. Only two employees wereexposed to the hazard, and this exposure was only briefly while they used the ladder to gobetween the third and fourth floors on the day of the inspection. Furthermore, coveringthe shaft openings was the contractual responsibility of the general contractor–notsubcontractor Westbrook–and the general contractor had assured Westbrook that the citedopening would be covered. Indeed, the general contractor had, with Westbrook’s assistance,covered the fourth floor opening even before the OSHA walkaround began, lendingcredibility to Westbrook’s argument that it relied in good faith upon the generalcontractor’s assurance that the third floor opening would soon be covered. Under thesecircumstances, we conclude that it would not be \”appropriate\” to assess asubstantial penalty against Westbrook. See ? 17(j) of the Act, 29 U.S.C. ? 666(j).Accordingly, the Secretary’s citation alleging thatWestbrook committed a serious violation of section 1926.500(b)(1) is affirmed, and a $50penalty is assessed.FOR THE COMMISSION RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: March 22, 1989SECRETARY 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 RespondentDECISION AND ORDER SCHWARTZ, Judge:This is a proceeding brought before the Occupational Safety and Health Review Commission(\”the Commission\”) pursuant to Section 10 of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ? 651 et. seq. (\”the Act\”). Respondentcontests an alleged serious violation of 29 CFR 1926.500(b)(1). A penalty of $450 wasproposed for the alleged serious violation.An inspection was conducted at Respondent’s workplaceon November 7 and 8, 1983. Respondent timely contested the subject citation. A hearing washeld on June 14, 1984, at Dallas, Texas. No additional persons desired to intervene inthis matter. Both parties have filed helpful post-hearing briefs.The EvidenceOn November 7 and 8, 1983, Jeffery C. Ruckerconducted an OSHA inspection of a four story building under construction. The Respondentwas a framing subcontractor at the subject worksite. The general contractor was ConnellConstruction Company (T. 8-9; 18; Exh. C-2; Exh. R-1).Rucker arrived at the worksite at approximately 11:00a.m. on November 7, 1983. He held an opening conference, broke for lunch, and started hisactual inspection after the employee lunch hour. Rucker inspected the building from thetop to the bottom. A steel stairwell provided access to the third floor. The fourth floorwas only accessible by a wooden ladder. The ladder itself was placed over an openunguarded elevator shaft. Rucker considered the ladder unsafe and did not use it toinspect the fourth floor (Tr. 20-24).Rucker was accompanied throughout the inspection byGlenn Faries, Connell’s foreman at the job. Rucker issued an alleged serious citation for1926.500(b)(1). He found the wooden ladder at the edge of the elevator shaft opening. Theopening was 17 feet long and 6 feet 3 inches wide. The drop was 40 feet to the elevatorpit below. The pit contained a damper column and was filled with rebar and broken piecesof wood. The ladder was 36 inches wide and was midway in the opening. It completelyspanned the shaft opening. There were six to seven feet of uncovered shaft space on eachside of the ladder. The subject ladder was 15 feet high (Tr. 24-27; Exh. C-3-5).Rucker perceived the hazard as an employee losing hisbalance with a potential fall of 40 feet to the pit below. The employee could be carryingtools or a broom while using the ladder. If he slipped, the lack of a cover over the shaftopening could cause a fatal fall. The most typical way to prevent the hazard would be woodplanking over the hole (Tr. 28-30).Rucker observed an employee of the general contractoruse the ladder to reach the third floor. After observing this employee, Rucker and Farieswalked over to check the perimeter guarding. He looked back and saw another employee comedown the same ladder. The employee, through an interpreter, was identified as MoslesGamas, a Westbrook employee. The interpreter was Joe Garcia who served as Respondent’sforeman at the site.Gamas told Rucker he had used the ladder two or three times daily. Garcia, in response toRucker’s question, indicated he too used the ladder (T. 33-37; Exh. C-3). Rucker alsotestified the general contractor has overall responsibility for jobsite safety (T. 49).The Secretary also called Glenn Faries to testify.Faries was the general contractor’s foreman at the subject jobsite. Westbrook had acontract to pan the floors. At the time of the inspection they were pouring concrete atthe fourth floor level. The subject ladder was the only way to move from the third floorto the fourth floor. Respondent’s workday started at 7:00 a.m. Garcia was in charge ofWestbrook’s employees. Faries accompanied Rucker throughout the inspection (T. 54-58).Faries believed that an employee would use the ladderthree times a day. This would occur in the morning, at lunch, and possibly once or twicein the afternoon. He indicated any employee working at the fourth level-penthouse wouldstay there until lunch. The employee would return after lunch and not leave until quittingtime. The ladder was moved the morning of the inspection to the subject location. Connellcorrected the condition the day of the inspection. Faries used wood planks which wereavailable and no special skill was required. It took approximately 30 minutes. Fariesconsidered decking as the general contractor’s responsibility (T. 59-61; 63-64; 66).Faries knew about the uncovered shafts. He testifiedthe ladder had been in place over the shaft for two-three hours. Prior to Rucker’s arrivalon the third floor, Faries was securing the fourth floor opening. He was working his waydown and estimated the third floor would have been completed in another thirty toforty-five minutes. Garcia’s crew helped deck the fourth floor. Faries told Garcia hiscrew would finish the decking. Faries chose to deck the fourth floor first because thatwas where the majority of the men were working (T. 65; 67; 70).Respondent called Westbrook’s foreman, Joe Garcia. Beindicated his crew consisted 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 beenworking on that floor the morning of the inspection. He had helped the general contractorcover the fourth floor opening (T. 77; 81-82).Garcia indicated that he came down from the fourthlevel to the third level at the time of the inspection because he thought the OSHAinspector wanted to talk to him. Garcia indicated that he would not have come down theladder if the OSHA man had not called him. He also would not allow anyone in his crew touse an unsafe ladder. Garcia would normally not leave a concrete pour (T. 83-84).He testified that he used the subject ladder to reachthe fourth floor that morning. He used the ladder once in the morning and also about threetimes a day. They used it to come down. He explained why he used the ladder three or fourtimes a day. He used it when somebody called him at the office or he had something to doon the job. He also indicated 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 to follow him down. Thehelper came down and asked \”what happened.\” The helper did not know the OSHAinspector was there (T. 85-86).Opinion The Secretary has alleged a serious violation of 29CFR 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 toeboards or cover, asspecified in paragraph (f) of this section. In general, the railing shall be provided onall exposed sides, except at entrances to stairways.There is no question that a violation of the standardexisted at the subject worksite. The elevator shaft opening was not covered. Respondent’semployees were exposed to a potential fall of approximately forty feet to the elevator pitbelow. The pit contained a damper column as well as rebar. If an employee slipped off theladder, there is no question that death or serious physical injury could occur.Consequently the violative condition must be considered serious within the meaning of theAct.Respondent contends that it fulfilled itsresponsibilities as a subcontractor in this case. The Commission has long held that if ahazard remains unabated, the employer who does not create or control the hazard will berelieved of any responsibility for violating the standard if it can establish that it usedreasonable alternative means to protect its employees or had no actual or constructiveknowledge that the condition was hazardous. Grossman Steel and Aluminum Corp., 76OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ? 20,691 (No. 12,775, 1975); Anning-JohnsonCo., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76 ? 20,690 (Nos. 3694 and 4409, 1975).Whether the alternative methods of protection taken by the noncontrolling employer aresufficient to establish an affirmative defense is decided on a case by case basis and willdepend on the circumstances at the workplace. J.H. McKay Elec. Co., 78 OSAHRC77\/B10, 6 BNA OSHC 1947, 1978 CCH OSHC ? 23,026 (No. 16110, 1978).With respect to the planking of unguarded elevatorshafts, Respondent is a framing subcontractor at a multi-employer worksite. Respondent didnot create the fall hazard. For purposes of the decision, I have assumed that Respondentalso did not control the hazard and that the general contractor had complete control ofthe hazard. The real question is whether, under the circumstances of this case, Westbrooktook reasonable alternative means to protect its employees.The first priority is to determine the exact natureof the hazard involved. In this case a ladder spanned a large elevator opening. The shaftopening was uncovered exposing employees to a potential fall of forty feet. One slip couldresult in a serious injury or death. The hazard could be abated by installing planks overthe opening. The material was readily available at the job. It would take thirty toforty-five minutes to abate this hazard.Respondent’s foreman, Garcia, was aware of thehazard. He was helping the general contractor abate the condition on the fourth floor.However, placed in its true context, Westbrook did not fulfull its responsibility underthe Act to assure the safety of its employees, Garcia and Gamas. My reasons follow.Garcia was well aware of the danger. He used theladder to leave the fourth floor because he thought the OSHA inspector called him. Thissingle transgression might be forgiven. However, the test is whether Westbrook tookreasonable alternative means to protect its employees from the highly dangerous opening.Gamas was seen using the ladder by Rucker. Garcia explained that Gamas followed him downto see what happened. Gamas, according to Garcia, did not know the OSHA inspector wasthere. This transgression is the flaw in Westbrook’s reasoning. The employee Gamas, at thevery least should have been warned not to use that ladder until the third floor wasplanked. Gamas showed no concern for the obvious hazard and Respondent therefore has notsustained its burden of proof on this defense.In addition, the record supports a finding thatGarcia and Gamas both used the ladder several times prior to the abatement of the hazard.Both Gamas and Garcia told Rucker they used the ladder. Faries estimated that Westbrookemployees would use the ladder in the morning and at lunch. Finally Garcia confirmed hisuse of the ladder at times other than when he thought the OSHA inspector called him. Heclearly stated that he used the ladder to reach the fourth floor the morning of theinspection. He also used it approximately three other times. Garcia used it when somebodycalled him at tie office or he had something to do at the office. He also testified Gamasused it at least twice. This evidence, considered as a whole, leads to one finding. I findas fact that both Garcia and Gamas used the ladder several times prior to the openingbeing covered by the general contractor.The above facts detract from Garcia’s statement thathe would not allow anyone to come down an unsafe ladder. Rather it is clear that Garciatook no alternative methods to protect himself or Gamas from the dangerous conditionexisting at the worksite. Westbrook should have refused to commence work until ConnellConstruction had covered all uncovered shafts. This small delay was fully justified whenweighed against the seriousness of the violative condition. At the very minimum, foremanGarcia should have instructed Gamas, in no uncertain terms, to stay off the ladder untilthe hazard was corrected. Garcia himself should have followed these same precautions.Consequently, in view of the above, serious citation number 1 is affirmed.I now turn to the assessment of an appropriatepenalty in this case. The overriding consideration is the high gravity of the violation.Two employees were exposed to a forty foot fall to the bottom of the elevator pit. Thispit contained a damper column as well as rebar. There this violation. On balance, Iconclude that the Secretary’s proposed penalty of $450 is more than reasonable in light ofthe record and the statutory criteria set forth in Section 17(j) of the Act.Conclusions of Law1. Respondent, Lee Roy Westbrook Construction Co., isengaged in a business affecting commerce and has employees within the meaning of Section3(5) of the Act. The Commission has jurisdiction of the parties and of the subject matterof this proceeding.2. On November 7, 1983, Respondent was in seriousviolation of 29 CFR 1926.500(b)(1).ORDER On the basis of the foregoing Findings of Fact andConclusions 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. SCHWARTZ Administrative Law JudgeDate: October 19, 1984FOOTNOTES: [[1\/]] Section 1926.500(b)(1) provides:? 1926.500 Guardrails, handrails, and covers. *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guardedby a standard railing and toeboards or cover, as specified in paragraph (f) of thissection. In general, the railing shall be provided on all exposed sides, except atentrances to stairways.[[2\/]] General contractor Connell Construction wassimilarly cited.[[3\/]] Westbrook incorrectly argues in its brief thatthe issue of control is not before us. From the outset, the central issue in this case hasbeen whether Westbrook met its burden of proving the. affirmative defense established inthe Anning-Johnson and Grossman Steel decisions. We could not sustain thatdefense, as Westbrook urges, without first finding that it has established all ofthe elements of the affirmative defense. Moreover, the element of \”control\” wasencompassed in the second of the two issues specified in Chairman Buckley’s direction forreview–\”Whether the judge erred in finding that Respondent was in violation whenRespondent neither created nor controlled the violative condition.\” Finally, we notethat the former Review Commission procedural rule pertinent to this issue, rule 92(c) , onwhich Westbrook bases its argument that the control issue is not before us, was construedby the Commission in Hamilton Die Cast, Inc., 12 BNA OSHC 1797, 1802-1803, 1986-87CCH OSHD ? 27,576 at pp. 35,824-25 (No. 83-308, 1986). In that case, the Commission heldthat former rule 92(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 ofthe issues expressly stated in the direction for review. Current Review Commissionprocedural rule 92(a), 29 C.F.R. ? 2200.92(a), provides that, unless otherwise specified,\”a direction for review establishes jurisdiction in the Commission to review theentire case.\”[[4\/]] The record suggests that this material wasWestbrook’s property. Thus, the general contractor’s foreman testified that he hadapproached Westbrook’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 wasthe erecting and dismantling of wooden formwork. It is therefore clear that they hadsufficient carpentry skills to cover the cited floor opening. [[6\/]] OSHA’s current official enforcement guidelinesfor issuing citations 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 beissued to noncreating, noncontrolling employer that takes specified precautions, including\”where feasible . . . alternative means of protecting employees from the hazard shortof walking off the job (except when special circumstances require such extremeaction).\”]”