“Docket No. 90-0248 SECRETARY OF LABOR, Complainant, v. TRI-CITY ELECTRICALCONTRACTORS, INC.,Respondent.OSHRC Docket No. 90-0248ORDERThis matter is before the Commission on a Direction for Review entered by CommissionerVelma Montoya on October 5, 1990. The parties have filed a Stipulation and SettlementAgreement. Having reviewed the record, and based upon therepresentations appearing in the Stipulation and Settlement Agreement, we conclude thatthis case raises no matters warranting further review by the Commission.\u00a0 The termsof the Stipulation and Settlement Agreement do not appear to be contrary to theOccupational Safety and Health Act and are in compliance with the Commission’s Rules ofProcedure.Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement intothis order.\u00a0 This is the final order of the Commission in this case.\u00a0 See29 U.S.C. ?? 660(a) and (b).Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: February 14, 1991ELIZABETH DOLE, SECRETARY OF LABOR, Complainant, v. TRI-CITY ELECTRICAL CONTRACTORS, INCORPORATED, Respondent.OSHRC Docket No. 90-0248STIPULATION AND SETTLEMENT AGREEMENT IThe parties have reached agreement on a full andcomplete settlement and disposition of the issues in this proceeding which are currentlypending before the Commission.IIIt is hereby stipulated and agreed between theComplainant, Secretary of Labor, and the Respondent, Tri-City Electrical Contractors,Inc., that:1.\u00a0 Respondent represents that the allegedviolation for which it was cited has been abated and shall remain abated.2.\u00a0 The Secretary hereby agrees to withdraw Citation number one, item one, alleging aviolation of 29 C.F.R. ? 450(a)(10), along with the proposed penalty of $300.3.\u00a0 The Secretary hereby agrees to withdraw Citation number two, item one alleging aviolation of 29 C.F.R. ? 500 (d) (1), along with the proposed penalty of $1,600.00.4.\u00a0 The Secretary hereby amends the proposed penalty of citation number one, itemtwo, alleging a violation of 29 C.F.R. ? 450 (b) (12), from $300 to $100.5.\u00a0 Respondent hereby withdraws its notice of contest to citation number one, itemtwo and to the notification of proposed penalty as amended above.6.\u00a0 Respondent agrees to submit to the OSHA Area Office $100 in full and completepayment of the penalty within 30 days of the date of this Agreement.7.\u00a0 Respondent certifies that a copy of this Stipulation and Settlement Agreement wasposted at the workplace on the 3rd day of October, 1990, in accordance with Rules 7 and100 of the Commission’s Rules of Procedures, and remained posted for a period of ten days.8.\u00a0 No authorized employee representative elected party status in this case.9.\u00a0 None of the foregoing agreements, statements, stipulations, or actions taken byrespondent shall be deemed an admission by respondent of the allegations contained in thecitations or the complaint herein.\u00a0 The agreements, statements, stipulations, andactions herein are made solely for the purpose of settling this matter economically andamicably and they shall not be used for any other purpose, except for subsequentproceedings and matters brought by the Secretary of Labor directly under the provisions ofthe Occupational Safety and Health Act of 1970.10.\u00a0 This Stipulation and Settlement Agreement is made to avoid further protractedlitigation.Respectfully submitted,ROBERT P. DAVISSolicitor of Labor CYNTHIA L. ATTWOOD Associate Solicitor for Occupational Safety and HealthDONALD G. SHALHOUBDeputy Associate Solicitor for Occupational Safety and Health DANIEL J. MICKCounsel for Regional Trial LitigationJIM POWERS Safety Director forTri-City Electrical Contractors, 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 of Labor, Atlanta, Georgia, on behalf of complainant.James Powers, Safety Director, Tri-CityElectrical Contractors, Inc., Altamonte Springs, Florida, on behalf of respondent. DECISION AND ORDERSALYERS, Judge:\u00a0 The Secretary of Laborbrings this action under the provisions of section 10(c) of the Occupational Safety andHealth Act of 1970 (29 U.S.C. 651, et seq.) and seeks affirmation of citationsissued to the respondent following an inspection of a construction project designated asthe Cypress Ridge and Cypress Run Apartments located on Apopka Vineland Road in Orlando,Florida.\u00a0 At the time of the inspection, respondent was engaged as the electricalsubcontractor at this 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 byCompliance Officer Kristas H. Nicou in October 1989.\u00a0 Nine apartment complexes wereunder construction at the site, some of which were framed and decked to the third-storylevel (Tr. 20).\u00a0 Approximately 150 craft employees were engaged at the site,including about 15 employees of the respondent (Tr. 21).\u00a0 During the course of hisinspection, Nicou met with respondent’s project manager, David Gardner, who accompaniedNicou on his walkaround (id.).\u00a0 Nicou observed and photographed threeconditions which he deemed to be in violation of 29 C.F.R. ? 1926.450 (portable ladders)and 29 C.F.R. ? 1926.500 (unguarded floors).\u00a0 At buildings one and six, Nicouobserved respondent’s employees using \”job-made ladders\” which were ofsubstandard construction and were not tied, blocked or secured to prevent displacement(Exs. C-1, C-2, C-3, C-4; Tr. 23-24).\u00a0 Throughout the work site, Nicou observedrespondent’s employees using open-sided floors around the perimeter of the buildings.\u00a0 These floors were 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 wasissued the following citations:Serious Citation 1129 CFR 1926.450 (a) (10):\u00a0 Portable ladders in use were not tied, blocked, orotherwise secured to prevent their being displaced:(a) Job-made ladders used to give access to thevarious elevations in buildings 1 and 6, on or about 10\/19\/89.2 29 CFR 1926.450 (b) (12):\u00a0 Cleats on job-made ladders were not inset into the edgesof the side rails one-half inch, or filler blocks were not used on the rails between thecleats.\u00a0 The cleats were not secured to each rail with three 10d common wire nails orfasteners of equivalent strength.\u00a0 Cleats on job-made ladders were not uniformlyspaced, 12 inches top-to-top:(a) Job-made ladders used to give access to thevarious elevations in building 1 and 6, on or about 10\/19\/89.Repeat Citation 2129 CFR 1926.500 (d)(1):\u00a0 Open-sided floors or platforms, 6 feet or more aboveadjacent floor or ground level, were not guarded by a standard railing or the equivalenton all open sides:(a) South side of building 1, first and secondfloor, a breezeway 68 inches wide giving access to the various units, did not haveguardrails at the open side, exposing employees to fall hazards, on or about 10\/19\/89.(b) At the perimeter of building 6, employeeswere exposed to fall hazards up to 16 feet high, on or about 10\/20\/89.(c) Building 5, second floor, a breezeway 68inches wide that gave access to the various units did not have guardrails installed,exposing employees to fall hazards up to 16 feet, on or about 10\/19\/89.THE TRI CITY ELECTRICAL CONTRACTORS INC. WASPREVIOUSLY CITED FOR A VIOLATION OF THIS OCCUPATIONAL SAFETY AND HEALTH STANDARD OR ITSEQUIVALENT STANDARD 1926.500 (d) (1) WHICH WAS CONTAINED IN OSHA INSPECTION NUMBER101157824, CITATION NUMBER 01, ITEM NUMBER 1b, ISSUED 9\/18\/87.In its answer and at the hearing, respondentadmitted the factual allegations contained in paragraphs seven, eight and nine of theSecretary’s complaint.\u00a0 Respondent also admitted its employees were exposed to thehazards alleged in the Secretary’s complaint and that it had knowledge of the existence ofthese hazards (Exs. J-11, para. 7c, d, e; 8c, d, e; and 9c, d, e; Tr. 8, 9). \u00a0Accordingly, the Secretary has established a prima facie case on the basis ofrespondent’s admissions.\u00a0 Respondent argues, however, that the hazards occasioned bythese ladders and unguarded open-sided floors were created and controlled by the generalcontractor; that respondent took reasonable steps to protect its employees from thesehazards and that it is entitled to assert a defense under the so-called Anning-Johnson\/Grossmanrule.In Anning-Johnson Co., 76 OSAHRC 54\/A2, 4BNA OSHC 1193, 1975-76 CCH OSHD ? 20,690 (Nos. 3694 & 4409, 1976), the Commissionheld that a subcontractor on a multi-employer construction site could defend against acharge or exposure or its employees to hazards which it did not create or control byshowing that such employees were protected by realistic measures undertaken by thesubcontractor as an alternative to literal compliance with the standard.\u00a0 In acompanion case, Grossman Steel & Aluminum Corp., 76 OSAHRC 54\/D9, 4 BNAOSHC 1185, 1975-76 CCH OSHD ? 20,691 (No. 12775, 1975), the Commission set the burden ofproof for establishing this affirmative defense on the shoulders of the contendingsubcontractor.\u00a0 The Commission also set forth an explanation of the steps asubcontractor must take to demonstrate it has taken realistic alternative measures toprotect employees:[A] subcontractor cannot be permitted to closeits eyes to hazards to which its employees are exposed, or to ignore hazards of which ithas actual knowledge.\u00a0 As noted above, each employer has primary responsibility forthe safety of its own employees.\u00a0 Simply because a subcontractor cannot himself abatea violative condition does not mean it is powerless to protect its employees.\u00a0 Itcan, for example, attempt to have the general contractor correct the condition, attempt topersuade the employer responsible for the condition to correct it, instruct its employeesto avoid the area where the hazard exists if this alternative is practical, or in someinstances provide an alternative means of protection against the hazard.\u00a0 Wetherefore expect every employer to make a reasonable effort to detect violations ofstandards not created by it but to which its employees have access and, when it detectssuch violations, to exert reasonable efforts to have them abated or take such other stepsas the circumstances may dictate to protect its employees.\u00a0 In the absence of suchactions, we will still hold each employer responsible for all violative conditions towhich its employees have access.\u00a0 (4 BNA OSHC at 1189).The record in this case is undisputed thatrespondent’s employees were exposed to the hazards alleged in the Secretary’s citationsand that respondent had knowledge of these conditions.\u00a0 It is also clear thatrespondent did not create or control these conditions. The issue for resolution is whetherrespondent has carried its burden of showing that it took reasonable steps to protect itsemployees under the circumstances disclosed in the record.Mr. James Powers, respondent’s current safetydirector who represented respondent at the hearing, [[1]] outlined respondent’s positionin statements made to the court during the course of the hearing.\u00a0 Respondent’sprincipal contention is that it made frequent but unsuccessful requests to the generalcontractor concerning the need for appropriate guardrails and ladders, but its requestswere ignored.\u00a0 In view of this circumstance, respondent urges that its only recoursewould be to refuse to work in these hazardous areas, thereby subjecting respondent totermination of its contract and the economic perils which would flow from such an act (Tr.10).\u00a0 In addition, respondent contends it took realistic measures to protectemployees through the utilization of a \”strong safety program\” which includedinstructions to employees \”on how to work around these hazards\” at the work site(Tr. 9-10).In support of its contentions, respondent calledfive witnesses and offered into the record eight documentary exhibits.\u00a0 This evidencewill now be considered to determine if respondent has carried its burden of proof.Rance Borderick has been employed by respondentfor 18 years and is the manager of its residential department (Tr. 60).\u00a0 On July 24,1989, after learning from David Gardner that stairways at the work site were not guardedby standard railings, he sent a memorandum to Bill Houghie, a regional supervisor forTrammell-Crow, advising as follows (Ex. C-12): Subject:\u00a0 Cypress Ridge and Cypress Run Apts.Attached is a copy of an OSHA fine Tri-Cityrecently received.\u00a0 This occurred on the Sea Harbour Apartment job off of KirkmonRoad.\u00a0 Any stairway without proper railings is considered a serious violation.\u00a0 Both of the above projects need attention regarding this matter.\u00a0 Your helpwill be appreciated.It is important to note that this memorandumrefers only to a failure to guard stairways, an item not cited by the Secretary.\u00a0 Itdoes not mention defective ladders or unguarded floors, the subjects of the Secretary’scitations.\u00a0 Borderick testified he wrote the memorandum after being advised byrespondent’s project manager, David Gardner, of missing stairway railings (Tr. 65).\u00a0 He testified he was not advised of the other hazardous conditions existing on thejobsite nor did he communicate with the general contractor concerning defective ladders orunguarded floors during the period from July to October 1989 (Tr. 65, 66).\u00a0 Histestimony, therefore, was largely irrelevant.\u00a0 He did, however, relate thatrespondent receives between \”eight hundred thousand to a million and a halfdollars\” a year from its work for Trammell Crow (Tr. 60).\u00a0 After sending thememorandum to the general contractor, he received an angry telephone call from one of itsregional managers berating him for this action and indicating he had\”jeopardized\” respondent’s relationship with Trammell-Crow (Tr. 61).Robert Moslar has been an employee of respondentfor 28 years and is currently its superintendent (Tr. 67).\u00a0 His only contribution tothe record was to verify that respondent has a safety program and conducts two safetymeetings each month with its employees (Tr. 68).\u00a0 He was unable to confirm thatemployees assigned to work around hazardous conditions (missing guardrails) at the worksite in question were given any direction concerning the avoidance of these hazards orthat alternative means to protect against injury were employed by respondent (Tr. 70).\u00a0 In fact, he had no responsibilities at this jobsite and had not visited the sitebefore the Secretary’s inspection (Tr. 71).Greg Lorenzo is an electricians’ helper and, atthe time of the hearing (May 17, 1990), had been employed by respondent for two andone-half months (Tr. 72).\u00a0 His testimony, therefore, did not relate to the timeperiod at issue in this proceeding.\u00a0 Lorenzo offered little to the record except toconfirm that he was given some orientation on safety matters on his first day ofemployment and was furnished with respondent’s safety handbook (Ex. R-1; Tr. 74, 75).\u00a0 The entire orientation procedure took about an hour and a half (Tr. 76).Edward G. Bruhns was respondent’s jobsuperintendent at the work site during the pertinent period.\u00a0 He worked directlyunder David Gardner and Rance Borderick and was responsible for jobsite safety (Tr.79-80).\u00a0 Bruhns was aware of the defective ladders and unguarded floors and reportedthese conditions to his supervisors and also to Bill Houghie and Doug Mackie, the generalcontractor’s representatives at the site (Tr. 82, 83).\u00a0 It was his testimony that hepersonally made requests \”many times\” to the general contractor to abate theconditions (Tr. 93-94) and that Dave Gardner also made requests in this regard to BillHoughie (Tr. 84, 89).\u00a0 He advised the general contractor that he did not want his manto go up in the area where these hazards existed, but \”unfortunately, the generalcontractor’s attitude was, you will be up there tomorrow, or I’ll get somebody up there todo it\” (Tr. 83). He further testified that he voiced his concerns \”throughoutthe whole period of the job\” but, because the job was behind schedule, his men\”sometimes\” had to do work that \”went against everything that Tri-City hadset up safetywise and, we tried to fulfill those safety requirements and still fulfill ourobligation as a subcontractor to Trammell-Crow\” (Tr. 95).\u00a0 To counteract thefailure of the general contractor to abate the hazardous conditions, Bruhns instructedemployees working under his supervision how to avoid the hazardous conditions or how tosafely work around them (Tr. 83, 84, 85).\u00a0 These instructions were given atrespondent’s safety meetings and also on the job whenever employees were required to workin the hazardous areas (Tr. 93).Respondent’s final witness was Jody G. Lasalle,an electricians’ helper who worked at the jobsite during the pertinent period (Tr. 113,114).\u00a0 Lasalle testified he attended safety meetings twice a month at which safetyconcerns were a regular topic of discussion (Tr. 115).\u00a0 He further testified heregularly received instructions on the job concerning how to avoid or work safely aroundthe defective ladders and unguarded floors (Tr. 115-118).Respondent’s documentary exhibits provide littleassistance to the court in resolving the ultimate issue.\u00a0 Exhibit R-1 is a copy ofrespondent’s safety handbook which is issued to each employee at the time of employment.\u00a0 It contains the usual safety subjects covered in pamphlets of this type includingan admonition to secure portable ladders.\u00a0 Exhibit R-2 is a copy of the contractexecuted between respondent and the general contractor.\u00a0 It has limited relevance tothe issues in the case except for the provision contained in paragraph seven whichprovides for harsh remedies against respondent in the event respondent failed to performits work.\u00a0 Exhibit R-3 is a list obtained by respondent from the Occupational Safetyand Health Administration purporting to show previous inspections of respondent conductedunder the Act.\u00a0 This document has no relevance to the issues in this case.\u00a0 Exhibits R-4, R-5, R-6, R-7 and R-8 consist of various documents including safetymeeting minutes, letters from respondent to general contractors alerting them to hazardousconditions at various work sites, communications from respondent’s safety director tofield personnel concerning safety on the work sites, etc.\u00a0 All of these documents,however, were generated after powers took over as safety director and subsequent to theSecretary’s inspection.\u00a0 Accordingly, they bear no relevance to the situation whichexisted at the jobsite in question during the pertinent period.DISCUSSION The success or failure of respondent’saffirmative defense depends upon resolution of the following questions:1.\u00a0 Did respondent make a good faith effortto induce the general contractor to abate the hazardous conditions?2.\u00a0 In the alternative, did respondent take reasonable steps to protect its employeesby instructing them to avoid these hazards or exercise care while working in these areas?It is clear in the record that Borderick’s Julymemorandum to respondent (Ex. C-12) did not address the conditions cited by the Secretary.\u00a0 There is no other relevant evidence[[2]] in the record that respondent made writtencomplaints to the general contractor during the pertinent period.\u00a0 However, therecord reflects that Bruhns, respondent’s job superintendent, discussed the conditionsconcerning the ladders and railings on several occasions with the general contractor’s jobsuperintendent and his assistant in an effort to get these conditions rectified (Tr. 83).\u00a0 Bruhns frankly admitted he did not aggressively pursue the matter because of hisreluctance to jeopardize his company’s relationship with the general contractor.\u00a0 Hetestified that he discussed this matter with his immediate supervisor, Dave Gardner, whoalso brought the matter to the attention of the general contractor’s supervisory personnel(Tr. 83-84).\u00a0 This court observed the demeanor of this witness during his testimonyand finds no reason to discount his credibility. While this court believes respondentcould have been more forceful in its demands upon the general contractor, respondent’stimidity is understandable in view of the economic realities which existed under the termsof respondent’s contract.\u00a0 This court concludes that respondent did not ignore itssafety responsibilities at this work site and made reasonable efforts to induce thegeneral contractor to abate the unsafe conditions.\u00a0 These efforts, although minimal,reflect a recognition by respondent of its safety responsibilities \”that is consonantwith the goals of the Act.\”\u00a0 Dutchess Mechanical Corp., 78 OSAHRC 59\/B14,6 BNA OSHC 1795 at 1796, 1978 CCH OSHD ? 22,876 at 27,679 (No. 16256, 1978).\u00a0 Seealso Lewis & Lambert Metal Contractors, Inc., 84 OSAHRC 45\/A3, 12 BNA OSHC1026, 1984-85 CCH OSHD ? 27,073 (No. 80-5295S, 1984).This court further finds that respondent tookalternative measures to protect its employees from the cited hazards.\u00a0 Bruhnstestified he instructed employees concerning how to avoid the hazards or work around themsafely (Tr. 83).\u00a0 This was done at respondent’s safety meetings as well as on the job(Tr. 84).\u00a0 Bruhns’ testimony in this respect was corroborated by that of JodyLasalle[[3]] who confirmed that employees were regularly instructed regarding safety bothon the job and at safety meetings (Tr. 115, 116).\u00a0 The only evidence offered by theSecretary to counteract 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 they had received noinstructions from respondent to avoid or work safely around the defective ladders and theopen-sided floors (Tr. 39, 40).\u00a0 Even though Nicou’s testimony falls within thehearsay exception provided in Rule 801 (d) (2) (D) of the Federal Rules of Evidence and isadmissible, this court assigns little weight to its probative value.\u00a0 Nicou did notidentify these employees by name nor did the Secretary’s counsel develop the facts andcircumstances relative to these interviews.\u00a0 Nicou’s testimony, based upon admissiblehearsay, is insufficient to overcome the testimony of Bruhns and Lasalle.\u00a0 It isconcluded that respondent took reasonable alternative measures to protect its employees byinstructing them to avoid the hazards or to exercise caution whenever exposure to thehazards was unavoidable.\u00a0 Electric Smith, Inc. v. Secretary of Labor, 666 F.2d1267 (9th Cir. 1982).FINDINGS OF FACT1.\u00a0 During the period pertinent to thiscase, respondent was engaged as the electrical subcontractor at a multi-employer work sitelocated in Orlando, Florida.\u00a0 Nine apartment complexes were under construction atthis work site, some of which were framed and decked to the third-story level.\u00a0 Approximately 15 employees of respondent were engaged in work activities at thissite.2.\u00a0 On October 19, 1989, the work site was inspected by a compliance officer of theOccupational Safety and Health Administration.\u00a0 At the time of the inspection, thefollowing hazardous conditions existed:(a) Portable ladders in use at buildings one andsix were not tied, blocked or otherwise supported to prevent their displacement;(b) Job-made ladders in use at buildings one and six were improperly constructed in thatthe cleats on these ladders were not inset into the edges of the side rails one-half inch;filler blocks were not used on the rails between the cleats; the cleats were not securedto the rails with 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 not guarded by standardrailings on all open sides at the following locations:(1) South side of building one, first and secondfloors;(2) At the perimeter of building six;(3) On the second floor of building five.3.\u00a0 Respondent’s employees were exposed tothe conditions described in the foregoing finding of fact.\u00a0 Respondent had knowledgeof these conditions and was aware that its employees were exposed to these hazards.4.\u00a0 The conditions described in finding of fact two were the responsibility of thegeneral contractor and were neither created nor controlled by respondent.5.\u00a0 Respondent’s supervisors at this work site called these hazardous conditions tothe attention of representatives of the general contractor on several occasions in aneffort to induce the general contractor to abate the conditions.\u00a0 Respondent’sefforts, however, were unsuccessful and the hazardous conditions remained unabated.6.\u00a0 Faced with the general contractor’s refusal to abate the conditions, respondent’ssupervisors instituted a practice of instructing employees in ways to avoid or minimizeexposure to these conditions.\u00a0 These instructions were disseminated at respondent’sbi-weekly safety meetings and on the job whenever it was necessary to send employees intothese areas.CONCLUSIONS OF LAW1.\u00a0 This court has jurisdiction of theparties and subject matter in this proceeding.2.\u00a0 Respondent has established an affirmative defense under the Anning-Johnson\/Grossmanrule by demonstrating that it took reasonable alternative measures to protect itsemployees from the hazards created and 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 followingthe Secretary’s inspection in this case (Tr. 125).\u00a0 It is unclear in the recordwhether he had any knowledge of respondent’s safety practices at the time of or prior tothe Secretary’s inspection.[[2]] As noted above, exhibits R-4 through R-8do not relate to the pertinent period.[[3]] Although this witness was subpoenaed bythe Secretary, he was not called to support the Secretary’s case (Tr. 114).\u00a0 He was,however, called by respondent and is considered by this court to be a credible witness.”