J. H. MacKay Electric Company and U.S. Engineering Company (Commission decision, September 12, 1978)

Plain-English summary

Two subcontractors were building a hospital in Kansas City, Missouri. MacKay did the electrical work, U.S. Engineering the plumbing, heating and air conditioning. On the fifth floor their employees were installing conduit and setting plumbing sleeves on temporary plywood decking, getting ready for the permanent concrete floor to be poured. The work took them within three feet of the edge. On the east and south wings that edge was as much as 42 feet above the ground, and there was no railing of any kind.

There was, however, a scaffold. It hung off the outside of the building, attached to those two wings, and it had been put up for the carpenters who were forming the box beam that supported the floor. The subcontractors argued that this scaffold caught anyone who went over the edge, so it either satisfied the guardrail standard outright or was a realistic substitute for compliance under the Commission's multi-employer decisions in Anning-Johnson and Grossman Steel. Judge Vernon Riehl disagreed, found both companies in violation, and assessed $500 against each. The Commission affirms the violations and cuts each penalty to $200.

The scaffold fails for two independent reasons, and the way the Commission got to the first one is worth attention. The scaffold deck was a single row of planks laid on 4x4 shores sticking about 30 inches out from the building, so whether the deck had holes in it depended entirely on how far apart those shores sat. Two witnesses estimated that spacing and neither had measured anything. The compliance officer said 28 to 34 inches, wide enough to fall through. The journeyman plumber said about 12 inches, which would be safe. Judge Riehl never made a credibility finding, so the Commission had no finding to defer to and resolved the conflict itself. It did so on the plumber's own cross-examination: asked whether there were places in the scaffold surface a person could fall through, he answered, "That's probably true." That answer cannot be squared with shores a foot apart, and the Commission treated it as corroborating the compliance officer.

The second reason needs no fact-finding at all. The scaffold had a single top rail about 40 inches up and no midrail. Someone going over the floor edge arrives with momentum, and the Commission's point is that momentum carries a body under a single rail and off the far side unless the person happens to land directly in front of one of the uprights. Those uprights stood 8 to 12 feet apart. The subcontractors answered that the vertical members of the beam form served as a midrail, and footnote 5 disposes of that: those members were on the building side of the scaffold, so they did nothing to stop anyone rolling off the outboard side.

That leaves the defense these companies actually pressed, which is the one this case is useful for. Anning-Johnson and Grossman Steel hold that a subcontractor is responsible for its own employees' safety even on a site it does not run, while allowing a subcontractor that neither created a hazard nor controls it to defend by showing it took the measures that were realistic in the circumstances. The Commission grants both predicates here without argument: these two neither created the missing guardrail nor could have abated it the way the standard contemplates. The general contractor was contractually responsible for perimeter guarding and neither respondent employed carpenters.

The defense still fails, because the predicate is not the defense. Not being able to fix the hazard yourself is what makes the defense available; it is not what establishes it. A subcontractor in that position still has to do whatever it can, and the record shows neither company did anything at all or that anything was unavailable. The floor is described concretely. At a minimum, ask the general contractor to put up the protection. Footnote 6 records that U.S. Engineering's vice-president admitted his company never asked, and that there is no evidence either way about MacKay. If the request fails, look for another way, and the opinion names safety belts as an example, or come to the hearing and show why no other way existed.

Footnote 6 adds a sharper point that is easy to read past. Asking alone would have been presumptively inadequate here anyway, given how serious this fall hazard was. So the request is a floor, not a discharge of the duty.

The subcontractors also argued that a real guardrail would have been in the way of ironworkers tying rebar and of cement finishers, so the general contractor would have refused. Footnote 7 answers this on the record's own sequence: those crafts appear to have worked after these respondents, not alongside them, so a guardrail could have stood during the electrical and plumbing work and come down later. And if the scaffold was the plan, they could have asked the scaffold's owner to plank the full surface and add a midrail, which is precisely what was missing.

On knowledge, both companies said they told experienced employees to report hazards and stay away from them, and that nobody reported this one. The Commission rejects the premise. An employer has its own duty to find the hazards its people will face, and cannot discharge it by telling them to work safely or avoid hazards. A missing perimeter rail on a floor 42 feet up would have been obvious to anyone who walked the area before sending employees onto it. Footnote 8 confines this testimony to U.S. Engineering, since it came from that company's vice-president and said nothing about MacKay. Footnote 9 then closes the gap for MacKay separately: its foreman Jack Petrie had worked on the fifth floor before the inspection, and a foreman's knowledge is imputed to his employer.

The penalty reduction rests on genuine mitigation rather than doubt about the violation. Neither company created or controlled the hazard. The scaffold, inadequate as it was, did provide some protection. The compliance officer himself testified that both had ongoing safety programs, and neither had any history of violations.

Footnote 10 is the part a later reader is most likely to need. The Commission's practice was to let employers request a remand when their case had been tried and decided before Anning-Johnson and Grossman Steel came down, since they could not have known to build that defense. These cases were tried before those decisions, but Judge Riehl issued his decision afterward and relied on them, and both respondents framed their defense under them before the judge and again on review. The issues were fully tried, no additional evidence was identified, and no remand was requested. So no opportunity is offered. Compare Otis Elevator Co., Docket 16057, decided six weeks later on October 31, 1978, where the Commission affirmed but gave the employer ten days to ask for the chance to present multi-employer defenses announced after its hearing. The distinction is not the defense but the timing of the judge's decision and whether the defense was actually litigated.

Three notes on the released text. The scaffold planks are "2 X 10 inch planks" where the deck is described and "the 2 X 12 planking" a few paragraphs later, describing the same boards. The citation to Hayden Electric Services, Inc. is incomplete, reading "Hayden Electric Services, Inc. OSAHRC 4 BNA OSHC 1494" with the OSAHRC volume and page missing, so that one cannot be verified from this document alone. And the release carries the ordinary typographical noise of its era, including "commited" and "interferred". Nothing is repaired above; the conflicts are named and the text below is transcribed as released.

Two further orientation points. Footnote 4 records that the citations covered only the east and south wings and that the record says nothing about perimeter protection anywhere else on the job, so this decision should not be read as a finding about the site as a whole. And the index row for this case reads "J.H. Mackay Electric Company & U.S. Engineering Company"; the caption reads "J. H. MACKAY ELECTRIC COMPANY and U.S. ENGINEERING COMPANY", and the body of the opinion spells the name MacKay throughout. The frontmatter follows the caption and the body's capitalization.

How this document is put together: it is a single opinion by Commissioner Barnako for a full panel of Cleary, Barnako and Cottine, with no separate or dissenting opinions. Its ten footnotes are not collected at the end. Each sits inline, set off by dashed rules, immediately after the paragraph it belongs to, and several of them carry real holdings rather than citations.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(d)(1), requiring a standard railing or the equivalent on every open-sided floor or platform six feet or more above the adjacent level
• Outcome: Modified. Both citations affirmed against both respondents; the $500 penalty assessed against each by the judge is reduced to $200 each
• Key point: A scaffold suspended outside the floor edge is not the equivalent of a guardrail, and not a realistic alternative to compliance, where its deck contains openings a person can fall through and it has no midrail to stop a falling employee's momentum from carrying them under the top rail
• Also decided: Being unable to abate a hazard is what makes the Anning-Johnson and Grossman Steel defense available, not what proves it; the subcontractor must still take the alternative measures open to it, at minimum requesting the responsible contractor to act and then seeking other protection such as safety belts when that fails, and requesting alone may be presumptively inadequate where the hazard is serious. Where a judge makes no credibility finding, the Commission may resolve conflicting estimates itself on the witnesses' own testimony. Instructing experienced employees to report and avoid hazards does not satisfy the employer's duty to discover them, and a foreman's knowledge is imputed to his employer. No remand opportunity is offered under Anning-Johnson where the judge decided after those cases issued and the parties actually litigated the defense

Full text (OSHRC public release)

Docket Nos. 16110; 16111

J. H. MACKAY ELECTRIC COMPANY and U.S. ENGINEERING COMPANY

OSHRC Docket Nos. 16110; 16111

Occupational Safety and Health Review Commission

September 12, 1978

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

Leonard Singer, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

The Secretary of Labor cited the Respondents for allegedly violating the OSHA construction safety standard requiring perimeter guardrail protection on open-sided floors. n1 The Respondents, subcontractors on a multi-employer construction site, contend that they should not be found in violation primarily because a scaffold structure, located outside and adjacent to the floor at issue, provided adequate fall protection to their employees and was therefore a realistic alternative to literal compliance within our decisions in Anning-Johnson Company n2 and Grossman Steel and Aluminum Corporation. n3 Judge Vernon Riehl found the Respondents in violation of the standard and assessed a penalty of $500 against each.
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We reduce the penalties to $200 but otherwise affirm his decision.

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n1 The standard, 29 C.F.R. 1926.500(d)(1), provides in pertinent part:

Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent. . .

n2 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 4409, 1976).

n3 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976).

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J. H. MacKay was the electrical subcontractor and U.S. Engineering the plumbing, heating, and air conditioning subcontractor, for the construction of a hospital building in Kansas City, Missouri.
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At the time an OSHA compliance officer inspected the worksite, work was in progress on the fifth floor. The floor consisted of temporary plywood decking, and preparations were being made to pour the permanent concrete floor. Employees of MacKay were installing electric conduit, and employees of U.S. Engineering were setting plumbing sleeves, prior to the concrete being poured.
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This work took them within three feet of the edge of the floor.

The edges of the east and south wings of the floor, sections of which were as high as 42 feet above the adjacent ground level, were not equipped with any type of railing to prevent employees from falling off those edges. n4 Attached to these wings, however, and protruding from the edges of the building, was scaffolding which had been erected for the use of the carpenters constructing the form for the box beam supporting the floor. The scaffold was also to be used by
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ironworkers to tie reinforcing rods on the deck, and by concrete finishers after the deck was poured.
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The scaffold platform was a single row of 2 X 10 inch planks, set close to the building and running parallel to the edges. These were laid on 4 X 4 shores which extended approximately 30 inches out from the building.
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At the outside perimeter of the scaffold was a single 2 X 4 inch railing approximately 40 inches above the scaffold working surface.

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n4 The citations pertained only to the east and south wings.
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There is no evidence in the record concerning whether there was adequate perimeter protection at other locations of the jobsite.

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Two witnesses testified to the configuration of this scaffolding: the compliance officer and a journeyman plumber employed by U.S. Engineering.
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Neither made actual measurements of the scaffold, but both gave estimates of the various dimensions.
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As to the dimensions described above, their estimates essentially coincided.
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In other respects, however, their testimony differed.
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The
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compliance officer estimated that the scaffold platform was 30 inches below the floor surface; the plumber said this distance was 18 inches.
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The compliance officer testified that the distance between the shores was 28 to 34 inches, while the plumber thought this spacing was about 12 inches.
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The compliance officer also testified that the uprights supporting the railing were spaced at 8 to 12 foot intervals.
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The plumber did not testify on this point.

Neither Respondent employed carpenters on the project.
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The general contractor was contractually responsible for the erection of perimeter guardrails.

The Respondents argued before the Judge that, as subcontractors who did not create or control the erection of perimeter guarding, they should not be found responsible for any deficiencies that existed in such guarding. After the case was tried, but before the Judge issued his decision, the Commission decided Anning-Johnson Co. and Grossman Steel and Aluminum Corp., supra. In those cases we held that a subcontractor on a multi-employer construction site is responsible for the safety of its employees.
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In order to avoid the imposition of inappropriate or unrealistic abatement [*5]
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requirements, however, we recognized that there are affirmative defenses available to a subcontractor who neither created the violative condition nor controlled the hazard such that it could rectify the condition in the manner contemplated by the cited standard.
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Thus, we held that a noncreating, noncontrolling subcontractor may defend by showing that it took such measures as were realistic under the circumstances to protect its employees.
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See McLean-Behm Steel Erectors, Inc., 78 OSAHRC 54/A2, 6 BNA OSHC 1712, 1978 CCH OSHD para. 22,812 (No. 76-2390, 1978): Cornell & Co., Inc., 77 OSAHRC 164/F5, 5 BNA OSHC 1736, 1977-78 CCH OSHD para. 22,095 (No. 8721, 1977).

Judge Riehl concluded that the Respondents had not established this defense, noting that there was no evidence indicating either employer had taken any steps to have the responsible contractor erect adequate perimeter guarding or to otherwise protect their employees.

On review, the Respondents argue in effect that the scaffolding was the equivalent of a standard railing and therefore did comply with 29 C.F.R. 1926.500(d)(1), but that even if it did not, the deviation was slight and the scaffold served as a realistic [*6]
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alternative to literal compliance. They also assert that a standard railing at the edge of the floor would have interfered with the work of other subcontractors. Thus, they view the scaffold as the best means of providing perimeter fall protection to employees while allowing the work to proceed efficiently.

We reject respondent's arguments that the scaffolding was the equivalent of a standard railing and that the scaffolding served as a realistic alternative to literal compliance. We cannot conclude that the scaffold provides effective protection to stop a fall.
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We note first that the working surface of the scaffold was not solid, but contained numerous openings between the shores at the locations not covered by the 2 X 12 planking.
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The width of these openings depended on the spacing of the shores, and the evidence on this point was conflicting; the compliance officer said the spacing was 28 to 34 inches but the journeyman plumber testified the spacing was about 12 inches.
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If the compliance officer's evidence is correct, then the scaffold surface would contain openings large enough for a person to fall through.
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This would not be true if the plumber's testimony is credited.
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The Judge did not make a credibility finding which would assist us in resolving this conflict.
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We note, however, that when the plumber was asked on cross-examination whether there were places in the scaffold surface through which a person could fall, he replied, "That's probably true." This response is inconsistent with the witness' testimony that the shores were spaced one foot apart, and it lends credence to the compliance officer's estimate. We therefore find that at least some locations of the scaffold surface along the perimeter of the fifth floor contained openings through which a person could fall, and did not provide adequate fall protection.

The scaffold also provided inadequate fall protection due to the absence of a midrail. If an employee fell from the edge of the floor, his momentum could easily carry him under the top rail and off the scaffold, n5 unless he fortuitously fell directly in front of one of the uprights supporting the toprail.
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These uprights, however, were spaced 8 to 12 feet apart, and obviously could not provide adequate protection against this eventuality along the entire length of the floor perimeter. Because the scaffold would not have provided [*8]
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reasonably effective fall protection, we conclude it was neither the equivalent of a standard railing nor a realistic alternative to literal compliance with 29 C.F.R. 1926.500(d)(1).

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n5 Respondents contend that the vertical members of the beam bottom form served as a midrail. These members, however, were on the opposite side of the scaffold from the railing, on the side toward the building.
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They would therefore have provided no protection against an employee rolling off the side of the scaffold away from the building.
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Accordingly, the presence of these members does not alter our conclusion that the scaffold provided inadequate fall protection to employees working on the fifth floor.

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We also reject Respondent's argument that they have established the defense made available to construction subcontractors by our decisions in Anning-Johnson and Grossman Steel. We recognize that the Respondents neither created the violative condition nor were capable of abating the fall hazard in the manner contemplated by the [*9]
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cited standard, 29 C.F.R. 1926.500(d)(1).
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Nevertheless, it was incumbent upon Respondents to take those alternative measures that were available to protect their employees.
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Data Electric Co., 77 OSAHRC 28/C14, 5 BNA OSHC 1077, 1977-78 CCH OSHD para. 21,593 (No. 13122, 1977).
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In this case, the record fails to show that Respondents made any attempt to implement alternative methods of employee protection or that such alternative methods were unavailable.

What is a realistic measure must be determined in light of the circumstances at the worksite. See Hayden Electric Services, Inc. OSAHRC 4 BNA OSHC 1494, 1976-77 CCH OSHD para. 20,939 (Nos. 4034 & 4147, 1976).
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At a minimum Respondents should have requested the general contractor to provide the necessary protection. n6 Had their request failed, n7 Respondents should have sought other means of protection, as for example, utilization of safety belts or demonstrated at hearing why other means of employee protection were unavailable. Therefore, Respondents asserted defense must fail.
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See, e.g., Ray Boyd Plaster and Tile, Inc., 78 OSAHRC 47/D8, 6 BNA OSHC 1648, 1978 CCH OSHD para. 22,794 (No. 76-814, 1978).

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n6 U.S. Engineering's vice-president testified that his company did not ask the general contractor to erect adequate perimeter protection around the fifth floor. There is no evidence concerning whether or not J. H. MacKay made such a request.
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In any event, merely requesting the general contractor to abate, would have been presumptively inadequate because of the seriousness of the hazard confronting Respondents' employees, Anning-Johnson, supra, n. 23, and because of Respondent's failure to demonstrate that other means of employee protection were unavailable. McLean-Behm, supra.

n7 Respondents argue that a standard railing on the floor's perimeter would have interferred with the work of certain crafts and that the general contractor therefore would not have erected one even if Respondent had so requested.
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The evidence indicates that a guardrail would have interfered with iron-workers tying in rebar at the edge of the floor and with the work of cement finishers after the floor was poured.
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However, it is not clear that this work was being performed at the same time Respondents were engaged in their work activities.
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Indeed, the record appears to indicate that the work of these employees followed the work of Respondents.
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If this is so, it would appear that the general contractor could have erected guardrails which would have been present during the time Respondents' employees were performing their work on the floor. Moreover Respondents could have attempted to assure adequate fall protection by requesting that the contractor responsible for the scaffold provide planking over the entire surface and erect a midrail.

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The Respondents also contend that the citations should be vacated because they did not know or could not have known of the violative condition with the exercise of reasonable diligence.
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They argue that they exercised reasonable diligence to detect violative conditions in that experienced employees were instructed to inform management of hazards they encountered in their work and were told to avoid areas where such hazards existed.
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They assert that they were not told of any hazard and that therefore they could not have known of the cited condition. n8

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n8 Respondents cite the testimony of U.S. Engineering's vice-president in support of this contention.
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We note that the cited testimony concerned only the employees of U.S. Engineering, and not J. H. MacKay, and therefore Respondents arguments are relevant only insofar as they relate to U.S. Engineering.

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We do not agree that Respondents could not have known of the cited condition.
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where only experienced employees are involved, employers have the duty to determine the hazards to which they may be exposed and to eliminate such hazards. Fry's Tank Service, Inc., 76 OSAHRC 105/A2, 4 BNA OSHC 1515, 1976-77 CCH OSHD para. 20,999 (No. 4447, 1976).
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An employer cannot simply rely on instructions to employees to "work safely" or "avoid hazards." Packerland Packing Co. of Texas, 77 OSAHRC 203/A2, 6 BNA OSHC 1126, 1977-78 CCH OSHD para. 22,366 (No. 13315, 1977).
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In this case, the lack of adequate perimeter protection on the fifth floor would have been readily apparent had the Respondents simply inspected that area before permitting their employees to work there.
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Thus, had the Respondents exercised reasonable diligence, they would have known of the violation. n9 See Camden Drilling Co., 78 OSAHRC 33/A2, 6 BNA OSHC 1560, 1978 CCH OSHD para. 22,687 (No. 14306, 1978).

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n9 We also note that a J. H. MacKay foreman, Jack Petrie, had been working on the fifth floor before the compliance officer inspected the worksite. Petrie either knew or should have known that the perimeter protection around the floor was inadequate and, because he was a foreman, his knowledge is imputable to J. H. MacKay.
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Minnotte Contracting & Erection Corp., 78 OSAHRC 15/D4, 6 BNA OSHC 1370, 1978 CCH OSHD para. 22,551 (No. 15919, 1978).
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For this reason also, we conclude that J. H. MacKay either knew or should have, with the exercise of reasonable diligence, known of the violation.

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Finally, Respondents contend the citations should be vacated because of the cumulative effect of the errors they allege the Judge commited.
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However, we have ruled on their exceptions to the Judge's decision, and we have found no errors in his decision, whether single or in combination, which would warrant vacation of the citation.

We do, however, find the penalties assessed by the Judge are too high.
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These Respondents did not create or control the hazard, and the scaffold did provide some protection against a fall.
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The compliance officer testified that both Respondents had ongoing safety programs, and they have no prior history of violations.
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We conclude that penalties of $200 should be assessed against each Respondent.

Accordingly, the citations for violation of 29 C.F.R. 1926.500(d)(1) issued to each Respondent are affirmed, and a penalty of $200 against each Respondent is assessed. n10

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n10 It has been our policy in cases which were tried and where the Judge's decision was issued prior to our decisions in Anning-Johnson and Grossman Steel to afford the employers an opportunity to request a remand to present additional evidence to establish the defenses announced in those cases.
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Although these cases were tried before our decisions in Anning-Johnson and Grossman Steel were issued, the Judge issued his decision after their issuance and he relied on those cases.
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Indeed, the Respondents framed their defense in terms of Anning-Johnson and Grossman Steel both before the Judge and us.
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Accordingly, the Respondents have had a complete opportunity to present to the Commission any exceptions to the Judge's decision based on Anning-Johnson and Grossman Steel. The Respondents have not indicated any other evidence they could present to establish those defenses, nor have they requested a remand for that purpose.
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Compare Ray Boyd Plaster and Tile, Inc., 78 OSAHRC 47/D8, 6 BNA OSHC 1648, 1978 CCH OSHD para. 22,794, (No. 76-814, 1978).
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Furthermore, the record indicates that all possible issues under Anning-Johnson and Grossman Steel were fully tried.
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Under the circumstances, we will not offer these Respondents an opportunity to request a remand for additional evidence.

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