“SECRETARY OF LABOR,Complainant,v.TRI-CITY ELECTRICALCONTRACTORS, INC.,Respondent.OSHRC Docket No. 90-0248_ORDER_This matter is before the Commission on a Direction for Review enteredby Commissioner Velma Montoya on October 5, 1990. The parties have fileda Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Stipulation and Settlement Agreement, we conclude that this caseraises no matters warranting further review by the Commission. Theterms of the Stipulation and Settlement Agreement do not appear to becontrary to the Occupational Safety and Health Act and are in compliancewith the Commission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order. This is the final order of the Commission inthis case. _See_ 29 U.S.C. ?? 660(a) and (b).Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: February 14, 1991————————————————————————ELIZABETH DOLE, SECRETARY OF LABOR,Complainant,v.TRI-CITY ELECTRICAL CONTRACTORS,INCORPORATED,Respondent.OSHRC Docket No. 90-0248STIPULATION AND SETTLEMENT AGREEMENTIThe parties have reached agreement on a full and complete settlement anddisposition of the issues in this proceeding which are currently pendingbefore the Commission.IIIt is hereby stipulated and agreed between the Complainant, Secretary ofLabor, and the Respondent, Tri-City Electrical Contractors, Inc., that:1. Respondent represents that the alleged violation for which it wascited has been abated and shall remain abated.2. The Secretary hereby agrees to withdraw Citation number one, itemone, alleging a violation of 29 C.F.R. ? 450(a)(10), along with theproposed penalty of $300.3. The Secretary hereby agrees to withdraw Citation number two, itemone alleging a violation of 29 C.F.R. ? 500 (d) (1), along with theproposed penalty of $1,600.00.4. The Secretary hereby amends the proposed penalty of citation numberone, item two, alleging a violation of 29 C.F.R. ? 450 (b) (12), from$300 to $100.5. Respondent hereby withdraws its notice of contest to citation numberone, item two and to the notification of proposed penalty as amended above.6. Respondent agrees to submit to the OSHA Area Office $100 in full andcomplete payment of the penalty within 30 days of the date of thisAgreement.7. Respondent certifies that a copy of this Stipulation and SettlementAgreement was posted at the workplace on the 3rd day of October, 1990,in accordance with Rules 7 and 100 of the Commission’s Rules ofProcedures, and remained posted for a period of ten days.8. No authorized employee representative elected party status in this case.9. None of the foregoing agreements, statements, stipulations, oractions taken by respondent shall be deemed an admission by respondentof the allegations contained in the citations or the complaint herein. The agreements, statements, stipulations, and actions herein are madesolely for the purpose of settling this matter economically and amicablyand they shall not be used for any other purpose, except for subsequentproceedings and matters brought by the Secretary of Labor directly underthe provisions of the Occupational Safety and Health Act of 1970.10. This Stipulation and Settlement Agreement is made to avoid furtherprotracted litigation.Respectfully submitted,ROBERT P. DAVISSolicitor of LaborCYNTHIA L. ATTWOODAssociate Solicitor forOccupational Safety and HealthDONALD G. SHALHOUBDeputy Associate Solicitor forOccupational Safety and HealthDANIEL J. MICKCounsel for RegionalTrial LitigationJIM POWERSSafety Director forTri-City ElectricalContractors, Inc.JACK POWASNIKAttorney for theSecretary of LaborSECRETARY OF LABOR,Complainant,v.TRI-CITY ELECTRICAL CONTRACTORS, INC., Respondent.OSHRC Docket No. 90-248APPEARANCES:Rafael Batine, Esquire, Office of the Solicitor, U. S. Department ofLabor, Atlanta, Georgia, on behalf of complainant.James Powers, Safety Director, Tri-City Electrical Contractors, Inc.,Altamonte Springs, Florida, on behalf of respondent._DECISION AND ORDER_SALYERS, Judge: The Secretary of Labor brings this action under theprovisions of section 10(c) of the Occupational Safety and Health Act of1970 (29 U.S.C. 651, _et seq_.) and seeks affirmation of citationsissued to the respondent following an inspection of a constructionproject designated as the Cypress Ridge and Cypress Run Apartmentslocated on Apopka Vineland Road in Orlando, Florida. At the time of theinspection, respondent was engaged as the electrical subcontractor atthis multi-employer work site which was under the direction and controlof the general contractor, Trammell-Crow, Inc. (Tr. 18).The Secretary’s inspection was conducted by Compliance Officer KristasH. Nicou in October 1989. Nine apartment complexes were underconstruction at the site, some of which were framed and decked to thethird-story level (Tr. 20). Approximately 150 craft employees wereengaged at the site, including about 15 employees of the respondent (Tr.21). During the course of his inspection, Nicou met with respondent’sproject manager, David Gardner, who accompanied Nicou on his walkaround(_id_.). Nicou observed and photographed three conditions which hedeemed to be in violation of 29 C.F.R. ? 1926.450 (portable ladders) and29 C.F.R. ? 1926.500 (unguarded floors). At buildings one and six,Nicou observed respondent’s employees using \”job-made ladders\” whichwere of substandard construction and were not tied, blocked or securedto prevent displacement (Exs. C-1, C-2, C-3, C-4; Tr. 23-24). Throughout the work site, Nicou observed respondent’s employees usingopen-sided floors around the perimeter of the buildings. These floorswere not protected by standard guardrails, exposing employees to fallsof 16 feet (Exs. C-5, C-6, C-7, C-8; Tr. 29-30).Based on Nicou’s inspection, respondent was issued the following citations:_Serious Citation 1_129 CFR 1926.450 (a) (10): Portable ladders in use were not tied,blocked, or otherwise secured to prevent their being displaced:(a) Job-made ladders used to give access to the various elevations inbuildings 1 and 6, on or about 10\/19\/89.229 CFR 1926.450 (b) (12): Cleats on job-made ladders were not insetinto the edges of the side rails one-half inch, or filler blocks werenot used on the rails between the cleats. The cleats were not securedto each rail with three 10d common wire nails or fasteners of equivalentstrength. Cleats on job-made ladders were not uniformly spaced, 12inches top-to-top:(a) Job-made ladders used to give access to the various elevations inbuilding 1 and 6, on or about 10\/19\/89._Repeat Citation 2_129 CFR 1926.500 (d)(1): Open-sided floors or platforms, 6 feet or moreabove adjacent floor or ground level, were not guarded by a standardrailing or the equivalent on all open sides:(a) South side of building 1, first and second floor, a breezeway 68inches wide giving access to the various units, did not have guardrailsat the open side, exposing employees to fall hazards, on or about 10\/19\/89.(b) At the perimeter of building 6, employees were exposed to fallhazards up to 16 feet high, on or about 10\/20\/89.(c) Building 5, second floor, a breezeway 68 inches wide that gaveaccess to the various units did not have guardrails installed, exposingemployees to fall hazards up to 16 feet, on or about 10\/19\/89.THE TRI CITY ELECTRICAL CONTRACTORS INC. WAS PREVIOUSLY CITED FOR AVIOLATION OF THIS OCCUPATIONAL SAFETY AND HEALTH STANDARD OR ITSEQUIVALENT STANDARD 1926.500 (d) (1) WHICH WAS CONTAINED IN OSHAINSPECTION NUMBER 101157824, CITATION NUMBER 01, ITEM NUMBER 1b, ISSUED9\/18\/87.In its answer and at the hearing, respondent admitted the factualallegations contained in paragraphs seven, eight and nine of theSecretary’s complaint. Respondent also admitted its employees wereexposed to the hazards alleged in the Secretary’s complaint and that ithad knowledge of the existence of these hazards (Exs. J-11, para. 7c, d,e; 8c, d, e; and 9c, d, e; Tr. 8, 9). Accordingly, the Secretary hasestablished a _prima facie_ case on the basis of respondent’sadmissions. Respondent argues, however, that the hazards occasioned bythese ladders and unguarded open-sided floors were created andcontrolled by the general contractor; that respondent took reasonablesteps to protect its employees from these hazards and that it isentitled to assert a defense under the so-called_Anning-Johnson\/Grossman_ rule.In _Anning-Johnson Co._, 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76 CCHOSHD ? 20,690 (Nos. 3694 & 4409, 1976), the Commission held that asubcontractor on a multi-employer construction site could defend againsta charge or exposure or its employees to hazards which it did not createor control by showing that such employees were protected by realisticmeasures undertaken by the subcontractor as an alternative to literalcompliance with the standard. In a companion case, _Grossman Steel &__Aluminum Corp_., 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ?20,691 (No. 12775, 1975), the Commission set the burden of proof forestablishing this affirmative defense on the shoulders of the contendingsubcontractor. The Commission also set forth an explanation of thesteps a subcontractor must take to demonstrate it has taken realisticalternative measures to protect employees:[A] subcontractor cannot be permitted to close its eyes to hazards towhich its employees are exposed, or to ignore hazards of which it hasactual knowledge. As noted above, each employer has primaryresponsibility for the safety of its own employees. Simply because asubcontractor cannot himself abate a violative condition does not meanit is powerless to protect its employees. It can, for example, attemptto have the general contractor correct the condition, attempt topersuade the employer responsible for the condition to correct it,instruct its employees to avoid the area where the hazard exists if thisalternative is practical, or in some instances provide an alternativemeans of protection against the hazard. We therefore expect everyemployer to make a reasonable effort to detect violations of standardsnot created by it but to which its employees have access and, when itdetects such violations, to exert reasonable efforts to have them abatedor take such other steps as the circumstances may dictate to protect itsemployees. In the absence of such actions, we will still hold eachemployer responsible for all violative conditions to which its employeeshave access. (4 BNA OSHC at 1189).The record in this case is undisputed that respondent’s employees wereexposed to the hazards alleged in the Secretary’s citations and thatrespondent had knowledge of these conditions. It is also clear thatrespondent did not create or control these conditions. The issue forresolution is whether respondent has carried its burden of showing thatit took reasonable steps to protect its employees under thecircumstances disclosed in the record.Mr. James Powers, respondent’s current safety director who representedrespondent at the hearing, [[1]] outlined respondent’s position instatements made to the court during the course of the hearing. Respondent’s principal contention is that it made frequent butunsuccessful requests to the general contractor concerning the need forappropriate guardrails and ladders, but its requests were ignored. Inview of this circumstance, respondent urges that its only recourse wouldbe to refuse to work in these hazardous areas, thereby subjectingrespondent to termination of its contract and the economic perils whichwould flow from such an act (Tr. 10). In addition, respondent contendsit took realistic measures to protect employees through the utilizationof a \”strong safety program\” which included instructions to employees\”on how to work around these hazards\” at the work site (Tr. 9-10).In support of its contentions, respondent called five witnesses andoffered into the record eight documentary exhibits. This evidence willnow be considered to determine if respondent has carried its burden ofproof.Rance Borderick has been employed by respondent for 18 years and is themanager of its residential department (Tr. 60). On July 24, 1989, afterlearning from David Gardner that stairways at the work site were notguarded by standard railings, he sent a memorandum to Bill Houghie, aregional supervisor for Trammell-Crow, advising as follows (Ex. C-12):Subject: Cypress Ridge and Cypress Run Apts.Attached is a copy of an OSHA fine Tri-City recently received. Thisoccurred on the Sea Harbour Apartment job off of Kirkmon Road. Anystairway without proper railings is considered a serious violation. Both of the above projects need attention regarding this matter. Yourhelp will be appreciated.It is important to note that this memorandum refers only to a failure toguard stairways, an item not cited by the Secretary. It does notmention defective ladders or unguarded floors, the subjects of theSecretary’s citations. Borderick testified he wrote the memorandumafter being advised by respondent’s project manager, David Gardner, ofmissing stairway railings (Tr. 65). He testified he was not advised ofthe other hazardous conditions existing on the jobsite nor did hecommunicate with the general contractor concerning defective ladders orunguarded floors during the period from July to October 1989 (Tr. 65,66). His testimony, therefore, was largely irrelevant. He did,however, relate that respondent receives between \”eight hundred thousandto a million and a half dollars\” a year from its work for Trammell Crow(Tr. 60). After sending the memorandum to the general contractor, hereceived an angry telephone call from one of its regional managersberating him for this action and indicating he had \”jeopardized\”respondent’s relationship with Trammell-Crow (Tr. 61).Robert Moslar has been an employee of respondent for 28 years and iscurrently its superintendent (Tr. 67). His only contribution to therecord was to verify that respondent has a safety program and conductstwo safety meetings each month with its employees (Tr. 68). He wasunable to confirm that employees assigned to work around hazardousconditions (missing guardrails) at the work site in question were givenany direction concerning the avoidance of these hazards or thatalternative means to protect against injury were employed by respondent(Tr. 70). In fact, he had no responsibilities at this jobsite and hadnot visited the site before the Secretary’s inspection (Tr. 71).Greg Lorenzo is an electricians’ helper and, at the time of the hearing(May 17, 1990), had been employed by respondent for two and one-halfmonths (Tr. 72). His testimony, therefore, did not relate to the timeperiod at issue in this proceeding. Lorenzo offered little to therecord except to confirm that he was given some orientation on safetymatters on his first day of employment and was furnished withrespondent’s safety handbook (Ex. R-1; Tr. 74, 75). The entireorientation procedure took about an hour and a half (Tr. 76).Edward G. Bruhns was respondent’s job superintendent at the work siteduring the pertinent period. He worked directly under David Gardner andRance Borderick and was responsible for jobsite safety (Tr. 79-80). Bruhns was aware of the defective ladders and unguarded floors andreported these conditions to his supervisors and also to Bill Houghieand Doug Mackie, the general contractor’s representatives at the site(Tr. 82, 83). It was his testimony that he personally made requests\”many times\” to the general contractor to abate the conditions (Tr.93-94) and that Dave Gardner also made requests in this regard to BillHoughie (Tr. 84, 89). He advised the general contractor that he did notwant his man to go up in the area where these hazards existed, but\”unfortunately, the general contractor’s attitude was, you will be upthere tomorrow, or I’ll get somebody up there to do it\” (Tr. 83). Hefurther testified that he voiced his concerns \”throughout the wholeperiod of the job\” but, because the job was behind schedule, his men\”sometimes\” had to do work that \”went against everything that Tri-Cityhad set up safetywise and, we tried to fulfill those safety requirementsand still fulfill our obligation as a subcontractor to Trammell-Crow\”(Tr. 95). To counteract the failure of the general contractor to abatethe hazardous conditions, Bruhns instructed employees working under hissupervision how to avoid the hazardous conditions or how to safely workaround them (Tr. 83, 84, 85). These instructions were given atrespondent’s safety meetings and also on the job whenever employees wererequired to work in the hazardous areas (Tr. 93).Respondent’s final witness was Jody G. Lasalle, an electricians’ helperwho worked at the jobsite during the pertinent period (Tr. 113, 114). Lasalle testified he attended safety meetings twice a month at whichsafety concerns were a regular topic of discussion (Tr. 115). Hefurther testified he regularly received instructions on the jobconcerning how to avoid or work safely around the defective ladders andunguarded floors (Tr. 115-118).Respondent’s documentary exhibits provide little assistance to the courtin resolving the ultimate issue. Exhibit R-1 is a copy of respondent’ssafety handbook which is issued to each employee at the time ofemployment. It contains the usual safety subjects covered in pamphletsof this type including an admonition to secure portable ladders. Exhibit R-2 is a copy of the contract executed between respondent andthe general contractor. It has limited relevance to the issues in thecase except for the provision contained in paragraph seven whichprovides for harsh remedies against respondent in the event respondentfailed to perform its work. Exhibit R-3 is a list obtained byrespondent from the Occupational Safety and Health Administrationpurporting to show previous inspections of respondent conducted underthe Act. This document has no relevance to the issues in this case. Exhibits R-4, R-5, R-6, R-7 and R-8 consist of various documentsincluding safety meeting minutes, letters from respondent to generalcontractors alerting them to hazardous conditions at various work sites,communications from respondent’s safety director to field personnelconcerning safety on the work sites, etc. All of these documents,however, were generated after powers took over as safety director andsubsequent to the Secretary’s inspection. Accordingly, they bear norelevance to the situation which existed at the jobsite in questionduring the pertinent period._DISCUSSION_The success or failure of respondent’s affirmative defense depends uponresolution of the following questions:1. Did respondent make a good faith effort to induce the generalcontractor to abate the hazardous conditions?2. In the alternative, did respondent take reasonable steps to protectits employees by instructing them to avoid these hazards or exercisecare while working in these areas?It is clear in the record that Borderick’s July memorandum to respondent(Ex. C-12) did not address the conditions cited by the Secretary. There is no other relevant evidence[[2]] in the record that respondentmade written complaints to the general contractor during the pertinentperiod. However, the record reflects that Bruhns, respondent’s jobsuperintendent, discussed the conditions concerning the ladders andrailings on several occasions with the general contractor’s jobsuperintendent and his assistant in an effort to get these conditionsrectified (Tr. 83). Bruhns frankly admitted he did not aggressivelypursue the matter because of his reluctance to jeopardize his company’srelationship with the general contractor. He testified that hediscussed this matter with his immediate supervisor, Dave Gardner, whoalso brought the matter to the attention of the general contractor’ssupervisory personnel (Tr. 83-84). This court observed the demeanor ofthis witness during his testimony and finds no reason to discount hiscredibility. While this court believes respondent could have been moreforceful in its demands upon the general contractor, respondent’stimidity is understandable in view of the economic realities whichexisted under the terms of respondent’s contract. This court concludesthat respondent did not ignore its safety responsibilities at this worksite and made reasonable efforts to induce the general contractor toabate the unsafe conditions. These efforts, although minimal, reflect arecognition by respondent of its safety responsibilities \”that isconsonant with the goals of the Act.\” _Dutchess Mechanical Corp_., 78OSAHRC 59\/B14, 6 BNA OSHC 1795 at 1796, 1978 CCH OSHD ? 22,876 at 27,679(No. 16256, 1978). _See also_ _Lewis & Lambert Metal Contractors,Inc._, 84 OSAHRC 45\/A3, 12 BNA OSHC 1026, 1984-85 CCH OSHD ? 27,073 (No.80-5295S, 1984).This court further finds that respondent took alternative measures toprotect its employees from the cited hazards. Bruhns testified heinstructed employees concerning how to avoid the hazards or work aroundthem safely (Tr. 83). This was done at respondent’s safety meetings aswell as on the job (Tr. 84). Bruhns’ testimony in this respect wascorroborated by that of Jody Lasalle[[3]] who confirmed that employeeswere regularly instructed regarding safety both on the job and at safetymeetings (Tr. 115, 116). The only evidence offered by the Secretary tocounteract the testimony of Bruhns and Lasalle was the testimony ofCompliance Officer Nicou, who interviewed \”six or seven\” of respondent’semployees during his inspection who purportedly informed him that theyhad received no instructions from respondent to avoid or work safelyaround the defective ladders and the open-sided floors (Tr. 39, 40). Even though Nicou’s testimony falls within the hearsay exceptionprovided in Rule 801 (d) (2) (D) of the Federal Rules of Evidence and isadmissible, this court assigns little weight to its probative value. Nicou did not identify these employees by name nor did the Secretary’scounsel develop the facts and circumstances relative to theseinterviews. Nicou’s testimony, based upon admissible hearsay, isinsufficient to overcome the testimony of Bruhns and Lasalle. It isconcluded that respondent took reasonable alternative measures toprotect its employees by instructing them to avoid the hazards or toexercise caution whenever exposure to the hazards was unavoidable. _Electric Smith, Inc. v. Secretary of Labor_, 666 F.2d 1267 (9th Cir. 1982)._FINDINGS OF FACT_1. During the period pertinent to this case, respondent was engaged asthe electrical subcontractor at a multi-employer work site located inOrlando, Florida. Nine apartment complexes were under construction atthis work site, some of which were framed and decked to the third-storylevel. Approximately 15 employees of respondent were engaged in workactivities at this site.2. On October 19, 1989, the work site was inspected by a complianceofficer of the Occupational Safety and Health Administration. At thetime of the inspection, the following hazardous conditions existed:(a) Portable ladders in use at buildings one and six were not tied,blocked or otherwise supported to prevent their displacement;(b) Job-made ladders in use at buildings one and six were improperlyconstructed in that the cleats on these ladders were not inset into theedges of the side rails one-half inch; filler blocks were not used onthe rails between the cleats; the cleats were not secured to the railswith three 10d common wire nails or fasteners; and the cleats were notuniformly spaced;(c) Open-sided floors six feet or more above adjacent floors were notguarded by standard railings on all open sides at the following locations:(1) South side of building one, first and second floors;(2) At the perimeter of building six;(3) On the second floor of building five.3. Respondent’s employees were exposed to the conditions described inthe foregoing finding of fact. Respondent had knowledge of theseconditions and was aware that its employees were exposed to these hazards.4. The conditions described in finding of fact two were theresponsibility of the general contractor and were neither created norcontrolled by respondent.5. Respondent’s supervisors at this work site called these hazardousconditions to the attention of representatives of the general contractoron several occasions in an effort to induce the general contractor toabate the conditions. Respondent’s efforts, however, were unsuccessfuland the hazardous conditions remained unabated.6. Faced with the general contractor’s refusal to abate the conditions,respondent’s supervisors instituted a practice of instructing employeesin ways to avoid or minimize exposure to these conditions. Theseinstructions were disseminated at respondent’s bi-weekly safety meetingsand on the job whenever it was necessary to send employees into these areas._CONCLUSIONS OF LAW_1. This court has jurisdiction of the parties and subject matter inthis proceeding.2. Respondent has established an affirmative defense under the_Anning-Johnson\/Grossman_ rule by demonstrating that it took reasonablealternative measures to protect its employees from the hazards createdand controlled by the general contractor._ORDER _It in therefore ORDERED:1. Serious citation one is vacated.2. Repeat citation two is vacated.EDWIN G. SALYERSJudgeDated: August 23, 1990FOOTNOTES:[[1]] Powers became respondent’s safety director in November 1989,immediately following the Secretary’s inspection in this case (Tr.125). It is unclear in the record whether he had any knowledge ofrespondent’s safety practices at the time of or prior to the Secretary’sinspection.[[2]] As noted above, exhibits R-4 through R-8 do not relate to thepertinent period.[[3]] Although this witness was subpoenaed by the Secretary, he was notcalled to support the Secretary’s case (Tr. 114). He was, however,called by respondent and is considered by this court to be a crediblewitness.”