Lewis & Lambert Metal Contractors, Inc.

Plain-English summary

Lewis & Lambert was a sheet-metal subcontractor at a building project in Fort Worth, Texas. The Commission affirmed a ground-fault-protection violation because the company could have installed a portable ground-fault circuit interrupter for its employees' electric tools. It vacated three guardrail items involving an elevator shaft and stairways. Craft-jurisdiction rules prevented the company's workers from repairing those conditions, and the company had made repeated oral and written requests for the responsible contractors to correct worksite hazards. Those efforts were reasonable alternative measures under the Commission's multi-employer worksite precedent. The electrical item was affirmed without penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.400(h)(1), 29 C.F.R. § 1926.500(d)(1), 29 C.F.R. § 1926.500(e)(1)(ii), and 29 C.F.R. § 1926.500(f)(1)(vi)(b)
• Outcome: Ground-fault item affirmed without penalty; three guardrail items vacated.
• Key point: A subcontractor that neither created nor controlled a hazard satisfied its duty by making reasonable efforts to have the responsible contractors correct it.

Full text (OSHRC public release)

SECRETARY OF LABOR,

Complaint,

v.

LEWIS & LAMBERT METAL

CONTRACTORS, INC.,

Respondent.

DECISION

Before:    BUCKLEY, Chairman;
CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and
Health Review Commission under 29 U.S.C. � 661(i), section 12(j) of the Occupational
Safety and Health Act of 1970,   29 U.S.C. �� 651-678 ("the Act"). 
The Commission is an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration ("OSHA").  It was established
to resolve disputes arising out of enforcement actions brought by the Secretary of Labor
under the Act an has no regulatory functions.  See section 10(c) of the Act,
29, U.S.C. � 659(c).

Lewis & Lambert Metal Contractors, Inc., a
subcontractor at a building construction site in Fort Worth, Texas, was issued citations
alleging four violations of OSHA's construction standards.  The administrative law
judge affirmed a citation item concerning an electrical violation because he found that
Lewis & Lambert controlled the violative condition and should therefore have abated
it.

We affirm this portion of the judge's
decision.  The judge affirmed three other citation items because he found that,
although Lewis & Lambert did not create or control the violative conditions, it failed
to take reasonable alternative measures to protect its employees.  We reverse the
judge's decision with respect to these citation items.

Citation 2, Item 1:  Ground-Fault
Protection.

Item 1 of citation 2 alleges that Lewis &
Lambert violated 29 C.F.R. � 1926.400(h)(1)[[1]] by failing to use either ground-fault
circuit interrupters or an assured equipment grounding conductor program to protect its
employees on the site from electrical hazards.  A compliance officer from OSHA
determined that ground-fault circuit interrupters had not been installed and that an
assured equipment grounding conductor program had not been instituted.  The employees
were using electric tools to perform their work. 

At the hearing, the employer did not contend
that it had complied with the standard.   It instead argued that it neither created
nor controlled the non-complying condition.  Lewis & Lambert relied on the
Seventh Circuit's decision in Anning-Johnson Co. v. OSHRC , 516 F.2d 1081 (7th Cir.
1975), which held that subcontractors working at a multi-employer construction site may
not be cited for non-serious violations where the subcontractor did not create, control,
or have responsibility for the hazardous conditions.  Id . at 1091. Lewis &
Lambert argued that Walker Construction Company--the project manager and prime
contractor--was responsible for safe conditions in general on the project and that Lewis
& Lambert lacked the expertise to comply.   However, both the compliance officer
and Lowry, Lewis & Lambert's foreman, testified that Lewis & Lambert could have
unilaterally installed a portable, commercially available ground-fault circuit
interrupter.  The employer did not show that such things as contractual obligations
or union jurisdictional concerns relieved it of responsibility for or prevented it from
literally complying with section 1926.400(h)(1).  On the basis of this evidence, the
judge properly concluded that Lewis & Lambert was responsible for the working
conditions and had the ability to comply with the standard.  Accordingly, item 1 of
citation 2 is affirmed.

Citation 1, Item 1, and Citation 2, Item 2
and 3:  Guardrails .

Item 1 of citation 1 alleges a violation of
section 29 C.F.R. � 1926.500(f)(1)(vi)( b )[[2]] in that a wire rope used as a
guardrail around an open elevator shaft was too slack to provide protection against
falling.  The standards requires that guardrails have [a] strength to withstand at
least the minimum requirement of 200 pounds top rail pressure with a minim of
deflection."  The compliance officer observed two Lewis & Lambert employees
fabricating and installing sheet metal ductwork near an open elevator shaft on the third
floor of the new building.[[3]]  One of the workers was working in a kneeling
position about three to six feet away from the edge of the open shaft.   The floor
opening for the shaft was 20 feet wide by 40 feet long, and was guarded by two wire ropes
strung between metal posts embedded in the concrete floor.  The posts were about six
to eight feet apart.  The top wire rope--which was equipped with a turnbuckle for
tightening--sagged about eight inches between posts.  When the compliance officer
leaned on the top wire rope, it sagged an additional 12 to 16 inches.

Items 2 and 3 of citation 2 alleges respectively
that Lewis & Lambert violated 29 C.F.R. �� 1926.500(d)(1) and (e)(1)(ii).[[4]] 
Section 1926.500(d)(1) requires that "[e]very open-sided floor or platform 6 feet or
more above adjacent floor or ground level shall be guarded by a standard railing . . . on
all open sides . . . ."   Section 1926.500(e)(1)(ii) requires that employers
equip "every flight of stairs having four or more risers . . . [with] at least one
railing on the open side . . . ."  The compliance officer observed that the
stairway landings at four levels of the building were open on one side.  the landings
were protected on two sides by I-beams and on a third side by the stairs themselves, but
were open on the fourth side.   Conditions were identical on all four levels. 
The potential fall distance was seven feet to the next lower level.  The compliance
officer also observed that the stair flights did not have railings on their open sides.

Lewis & Lambert contended that it did not
create, control or have responsibility for the violative conditions.  Lowry, Lewis
& Lambert's foreman at the worksite, testified that the wipe rope guardrail as
originally installed by ironworkers employed by another contractor.  Lowry stated
that sheet metal workers are not permitted to work on wire rope guardrails, and that if
they had done so it would likely have caused a jurisdictional dispute.  Snow, a
vice-president of Lewis & Lambert, testified that the company employed only sheet
metal workers on the project.  Snow stated that under prevailing craft union
jurisdictional agreements in the region, sheet metal workers cannot erect or maintain wire
rope guardrail, a jurisdictional dispute and possible a job shutdown would occur. 
According to the project manual for the job, Walker was responsible for worker safety,
including the responsibility for placing barriers and guardrails around floor
openings.  In any event, Snow stated, Lewis & Lambert's employees did not have
the tools or expertise to perform guardrail work around either the elevator shaft or
stairway openings.  Snow conceded that it would not have taken much physical effort
to tighten the turnbuckle attached to the wire rope guardrail around the elevator
shaft. 

Forrester, the compliance officer, testified
that it would only have taken five minutes to tighten the turnbuckle on the
guardrail.  Forrester agreed that a jurisdictional dispute would likely result if an
iron worker were to install or maintain a wooden guardrail.  The compliance officer
stated that during and following the inspection, workers employed by Walker corrected the
non-complying elevator shaft and stairway guardrail conditions by installing 2x4 wooden
guardrails.

Lewis & Lambert's foreman, Lowry, complained
two or three times to the worksite representatives of Baldwin Construction Company and
Walker about the lack of adequate elevator shaft and stairway guardrails.  Walker's
worksite representative replied that he lacked jurisdiction to correct the safety
problems.  Lowry earlier had Baldwin's representative write a letter to Walker
complaining about safety problems at the site.  The letter, dated June 5, 1980 (about
eight weeks before the OSHA inspection), mentioned a lack of stairways and referred to
"a number of other safety hazards that I haven't brought to your attention but I know
you are aware of . . . .

The judge found that the inadequate railing
surrounding the elevator shaft and the lack of railings on the stairway violated the cited
standards and that the two Lewis & Lambert workers were exposed to fall hazards. 
The judge found that Lewis & Lambert had established that it neither created nor
controlled these non-complying conditions.  The judge concluded that Walker was
contractually responsible for general job safety--including installing and maintaining
guardrails around the elevator shaft and stairway--and that craft union jurisdictional
agreements prevented Lewis & Lambert's sheet metal workers from erecting or
maintaining wire rope or wooden guardrails without risking a jurisdictional dispute or job
shutdown.  The judge also found that Lewis & Lambert was bound by the project
manual for the job and by its contract with Baldwin, neither of which imposed the
responsibility for erecting guardrails.

However, the judge held that Lewis & Lambert
failed to take reasonable alternative measures to protect its employees, citing the
Commission's decision in Anning-Johnson Co ., 76 OSAHRC 54/A2, 4BNA OSHC 1198,
1975-76 CCH OSHD � 20,690 (No. 3694 & 4409, 1976).  The judge found that the
oral complaints to Walker and Baldwin by Lewis & Lambert's foreman--coupled with the
June 6, 1980, letter--were not a reasonable alternative measure.  In the judge's
view, it should have been evident to Lowry that his complaints to Walker's on-site
representative were not going to be acted upon.   The judge therefore concluded that
Lowry's complaints lacked sufficient forcefulness, and that Lowry should have contacted a
higher authority within Walker or had an appropriate officer of Lewis & Lambert do
so.  In the alternative, the judge held that Lewis & Lambert could have
physically protected its workers by instructing them to wear safety belts tied off to the
wire rope guardrail or by providing   ladders for them  to gain access to their
work stations.

Lewis & Lambert disputes the judge's finding
that it failed to take reasonable measures to protect its employees.  The employer
argues that its efforts were realistic and reasonable, and that "[to] require more
specific measures . . . would be beyond the policy of the Act . . . ."

The Secretary takes issue with the judge's
finding that Lewis & Lambert did not control the elevator shaft guardrail
violation.  The Secretary argues that it would have required no particular effort or
expertise to tighten the guardrail turnbuckle.   The Secretary also contends that the
employer was bound under the guidelines of the Sheet Metal Air Conditioning National
Association to replace any guardrails it might have to remove in order to perform its
contract.

The Secretary also urges affirmance of the
judge's conclusion that the employer failed to take reasonable alternative measures. 
The Secretary argues that the letter to Walker was written 55 days before the inspection,
"an unreasonably long time period during which . . . employees were exposed to
hazards."  The Secretary also notes that the letter fails to mention any of the
cited hazards and does not indicate that Lewis & Lambert is the complainant.  The
Secretary contends that any conversations with Walker that took place before the letter
was written should not be considered because some of the cited conditions did not then
exist.

We agree with the judge that Lewis & Lambert
did not create or control the elevator shaft or stairway guardrail violations, largely for
the reasons he assigned.  The Commission has recognized that an employer may be
prevented from abating a hazardous working condition due to union jurisdictional
rules.  See  McLean-Behm Steel Erectors, Inc .,  78 OSAHRC
54/A2, 6 BNA OSHC 1712, 1715, 1978 CCH OSHD � 22,812, p. 27571 (No. 76-2390, 1978). 
The record establishes here that Lewis & Lambert employed only sheet metal workers at
the worksite, and that craft jurisdictional agreements prevented those workers from
working on or building guardrails.  Despite the apparent ease with which the elevator
shaft guardrail could have been tightened, Lewis & Lambert's workers could not have
abated the hazard without risking a jurisdictional dispute and a job shutdown. 
Furthermore, such workers did not have the expertise or materials  to fabricate
guardrails for the stairs.  Under our case law these facts establish that Lewis &
Lambert did not create or control the cited guardrail hazards.

However, we disagree with the judge's conclusion
that Lewis & Lambert failed to take reasonable alternative measures.  The
alternative efforts a subcontractor is required to make were first discussed in Grossman
Steel & Aluminum, Corp ., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1189, 1975-76 CCH OSHD
� 20,691, p. 24,791 (No. 12775, 1976)(footnote omitted):

[An employer] can . . . attempt to have the
general contractor correct the condition, attempt to persuade the employer responsible for
the condition to correct it, instruct its employees to avoid the area where the hazard
exists if this alternative is practical, or in some instances provide an alternative means
of protection against the hazard.  We therefore expect every employer to make a
reasonable effort to detect violations of standards not created by it but to which its
employees have access and, when it detects such violations, to exert reasonable efforts to
have them abated or take such other steps as the circumstances may dictate to protect its
employees.

In a later decision, the Commission stated that
the steps that must be taken depend upon what is realistic under the circumstances.  Mayfair
Construction Co ., 77 OSAHRC 178/A14, 5 BNA OSHC 1877, 1977-78 CCH OSHD � 22,214 (No.
2171, 1977).  In determining whether an employer has made reasonable efforts to abate
a condition, the Commission will examine the employer's overall conduct rather than any
single act.  See Weisblatt Electric Co ., 82 OSAHRC 28/B3, 10 BNA OSHC 1667,
1982 CCH OSHD � 26,058 (No.79-2537, 1982).  At a minimum the subcontractor should
request the general contractor to provide the necessary protection.

We conclude that Lewis & Lambert's efforts
to have the guardrail conditions corrected were reasonable and satisfy our Anning-Johnson
test.  Lewis & Lambert several times attempted to have the general contractors
correct the non-complying guardrail conditions.  Its foreman had Baldwin's site
representative write a letter to the Walker representative complaining about worksite
hazards.  The foreman personally raised these issues with Walker's representative
several times before ad after the letter as written.[[5]]  As we stated in Dutchess
Mechanical Corp ., 78 OSAHRC 59/B14, 6 BNA OSHC 1795, 1796, 1978 CCH OSHD � 22,876, p.
27,679 (No. 16256, 1978), "[the employer's attempts to have the general contractors
remedy hazardous conditions on the worksite through both oral and written communications
indicate a concern for employee safety and health that is consonant with the goals of the
Act."  In judging the reasonableness of Lewis & Lambert's conduct, it bears
emphasis that complaints to a general contractor about conditions such as these can nearly
always be expected to be effective.  General contractors have, under Commission
precedent, been held responsible for such conditions by reason of their general
supervisory authority and central position on a multiple-employer construction site. 
See , e.g ., Olson Construction Co ., 77 OSAHRC 176/A2, 5 BNA OSHC 1857,
1859-60, 1977-78 CCH OSHD � 22,197, p. 26,710 (No. 14683, 1977).  We therefore
reverse the judge's ruling that Lewis & Lambert failed to take reasonable alternative
measures to protect its employees. See Novak & Co ., 84 OSAHRC _____, 11
BNA OSHC 1763, 1766, 1984 CCH OSHD � 26,766, p. 34,235 (No. 80-7335, 1984).[[6]]

We also reject the judge's alternative finding
that the Lewis & Lambert employees could have ascended ladders to their work stations
and tied off with safety belts once they reached their work stations.  First, because
the stairways here were unguarded only on the one side adjacent to the interior of the
building and a fall would be to the next lower level, it is reasonable to conclude that
climbing the unguarded stairway was safer than ascending a ladder, especially when tools
and materials were to be transported to work stations.  For this reason, the use of
ladders would not constitute a reasonable alternative measure.  Second, the use of
safety belts and lanyards was not mentioned a the hearing by either party or the judge as
an alternative means of protection.  We therefore could not adopt the judge's finding
that such measures were "reasonable."  In any event, the Anning-Johnson
defense does not require an employer to establish that it explored every conceivable
measure in order to protect its workers from non-complying conditions that it did not
create or control.   It requires only that the employer "make a reasonable
effort to detect violations . . . [and] exert reasonable efforts to have abated . . .
."  Grossman Steel & Aluminum , 4 BNA OSHC at 1189, 1975-76 CCH OSHD
at p. 24,791.  The record reflects that Lewis & Lambert has done so here.

Accordingly, the judge's decision is affirmed in
part and reversed in part.  Item 1 of citation 1 and items 2 and 3 of citation 2 are
vacated.  Item 1 of citation 2 is affirmed, without penalty.

FOR THE COMMISSION

RAY H. DARLING, JR..

EXECUTIVE SECRETARY

DATED:  OCTOBER 2, 1984

FOOTNOTES:

[[1]] The standard provides in part: � 1926.400
General requirements . (h) Ground-fault protection--(1) General. . . . [T]he
employer shall use either ground-fault circuit interrupters as specified in paragraph
(h)(2) of this section or an assured equipment grounding conductor program as specified in
paragraph (h)(3) of this section, to protect employees on construction sites. . . .

[[2]] The standard provides:  � 1926.500 Guardrails,
handrails and covers . (f) Standard specifications . (1) A standard railing shall
consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical
height of approximately 42 inches from upper surface of top rail to floor, platform,
runway, or ramp level.   The top rail shall be smooth-surfaced throughout the length
of the railing.   The intermediate rail shall be halfway between the top rail and the
floor, platform, runway, or ramp.  The ends of the rails shall not overhang the
terminal posts except where such overhang does not constitute a projection hazard. 
Minimum requirements for standard railings under various types of construction are
specified in the following paragraphs:

(vi) Other types, sizes, and arrangements of
railing construction are acceptable, provided they meet the following conditions:

( b ) A strength to withstand at least the
minimum requirement of 200 pounds top rail pressure with a minimum of deflection[.]

[[3]] Lewis & Lambert had contracted with
Baldwin Construction Company to fabricate and install portions of the new building's air
handling system.  Lewis & Lambert's vice-president "presumed" that
Baldwin was itself a subcontractor of the prime contractor and project manager Walker
Construction Company.

[[4]] The standards provide:  � 1926.500 Guardrails,
handrails, and covers . (d) Guarding of open-sided floors, platforms, and runways . 
(1) 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, as specified in paragraph
(f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp,
stairway, or fixed ladder.  The railing shall be provided with a standard toeboard
wherever, beneath the open sides, persons can pass, or there is moving machinery, or there
is equipment with which falling materials could create a hazard.

(e) Stairway railings and guards . (1)
Every flight of stairs having four or more risers shall e equipped with standard stair
railings or standard handrails as specified below, the width of the stair to be measured
clear of all obstructions except handrails:

(ii) On stairways less than 44 inches wide
having one side open, at least one stair railing on the open side. . . .

[[5]]We disagree with the judge's conclusion
that Lowry should have complained to a more senior representative of Walker.  Nothing
in Gotham Electric Co., 78 OSAHRC 1/A14, 6 BNA OSHC 1265, 1266, 1977-78 CCH OSHD �
22,479, P. 27,095 (No. 16155, 1977)--on which the judge relied for the proposition that
requests made to the general contractor must be definite and forceful--mandates a
different result.  In that case, the record was not clear as to the nature and extent
of requests made to the general contractor to correct certain hazards.  6 BNA OSHC at
1266, 1977-78 CCH OSHD at p. 27,095.  Here , by contrast, the record demonstrates a
continued effort by Lewis & Lambert to have the safety conditions at the worksite
improved.

[[6]]Because Chairman Buckley concludes that
Lewis & Lambert established that it took reasonable alternative measures as required
under existing Commission precedent, the Chairman does not decide in this case whether
Commission precedent correctly holds that an employer that did not create, control, or
otherwise have responsibility for a hazardous condition must further show that it took
reasonable alternative measures.  Following the Seventh Circuit decision in Anning-Johnson
Co. v. OSHRC , the Commission reconsidered its own case law on the subject.  In Anning-Johnson ,
supra , and Grossman Steel and Aluminum, supra, the Commission accepted the Seventh
Circuit rationale that a non-creating and non-controlling subcontractor is nor liable for
noncomplying working conditions.  However, the Commission decided that the employer
who did not have actual or constructive notice of the hazardousness of the conditions.
  See Anning-Johnson Co. , 4 BNA OSHC at 1198, 1975-76 CCH OSHD at pp.
24,783-84.  The Commission apparently concluded that the duty to take realistic
alternative measures followed from the duty stated in section 5(a)(2) of the Act, 29
U.S.C. � 654(a)(2), to comply with standards.  However, because section 5(a)(2) of
the Act mandates employer compliance with specific standards, it is not clear that this
provision can be the source of an employer's obligation to take "alternative
measures" beyond or different from what is required by specific standards.