Tri-City Electrical Contractors, Inc.

Plain-English summary

Tri-City Electrical Contractors was cited for unsecured portable ladders, improperly constructed job-made ladders, and unguarded open-sided floors at an apartment construction project. The Commission approved a settlement in which the Secretary withdrew the unsecured-ladder item and its $300 penalty and the repeated open-floor item and its $1,600 penalty. The Secretary reduced the penalty for the remaining job-made-ladder item from $300 to $100. Tri-City withdrew its contest to that amended item, agreed to maintain abatement, and agreed to pay $100. The settlement stated that it was not an admission of the citation allegations. The Commission incorporated the agreement into its final order.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.450(a)(10); 29 C.F.R. § 1926.450(b)(12); 29 C.F.R. § 1926.500(d)(1)
• Outcome: Two items withdrawn; remaining ladder item settled with a reduced $100 penalty.
• Key point: The approved settlement resolved the case by withdrawing the unsecured-ladder and open-floor charges while retaining only the amended job-made-ladder item.

Full text (OSHRC public release)

Docket No. 90-0248

SECRETARY OF LABOR,

Complainant,

v.

TRI-CITY ELECTRICAL

CONTRACTORS, INC.,

Respondent.

OSHRC Docket No. 90-0248

ORDER

This matter is before the Commission on a Direction for Review entered by Commissioner
Velma Montoya on October 5, 1990. The parties have filed a Stipulation and Settlement
Agreement.

Having reviewed the record, and based upon the
representations appearing in the Stipulation and Settlement Agreement, we conclude that
this case raises no matters warranting further review by the Commission.  The terms
of the Stipulation and Settlement Agreement do not appear to be contrary to the
Occupational Safety and Health Act and are in compliance with the Commission's Rules of
Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into
this order.  This is the final order of the Commission in this case.  See
29 U.S.C. �� 660(a) and (b).

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: February 14, 1991

ELIZABETH DOLE, SECRETARY OF LABOR,

Complainant,

v.

TRI-CITY ELECTRICAL CONTRACTORS,

INCORPORATED,

Respondent.

OSHRC Docket No. 90-0248

STIPULATION AND SETTLEMENT AGREEMENT

I

The parties have reached agreement on a full and
complete settlement and disposition of the issues in this proceeding which are currently
pending before the Commission.

II

It is hereby stipulated and agreed between the
Complainant, Secretary of Labor, and the Respondent, Tri-City Electrical Contractors,
Inc., that:

1.  Respondent represents that the alleged
violation for which it was cited has been abated and shall remain abated.

2.  The Secretary hereby agrees to withdraw Citation number one, item one, alleging a
violation of 29 C.F.R. � 450(a)(10), along with the proposed penalty of $300.

3.  The Secretary hereby agrees to withdraw Citation number two, item one alleging a
violation of 29 C.F.R. � 500 (d) (1), along with the proposed penalty of $1,600.00.

4.  The Secretary hereby amends the proposed penalty of citation number one, 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 number one, 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 and complete
payment of the penalty within 30 days of the date of this Agreement.

7.  Respondent certifies that a copy of this Stipulation and Settlement Agreement was
posted at the workplace on the 3rd day of October, 1990, in accordance with Rules 7 and
100 of the Commission's Rules of Procedures, 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, or actions taken by
respondent shall be deemed an admission by respondent of the allegations contained in the
citations or the complaint herein.  The agreements, statements, stipulations, and
actions herein are made solely for the purpose of settling this matter economically and
amicably and they shall not be used for any other purpose, except for subsequent
proceedings and matters brought by the Secretary of Labor directly under the provisions of
the Occupational Safety and Health Act of 1970.

10.  This Stipulation and Settlement Agreement is made to avoid further protracted
litigation.

Respectfully submitted,

ROBERT P. DAVIS

Solicitor of Labor

CYNTHIA L. ATTWOOD

Associate Solicitor for

Occupational Safety and Health

DONALD G. SHALHOUB

Deputy Associate Solicitor for

Occupational Safety and Health

DANIEL J. MICK

Counsel for Regional

Trial Litigation

JIM POWERS

Safety Director for

Tri-City Electrical

Contractors, Inc.

JACK POWASNIK

Attorney for the

Secretary of Labor

SECRETARY OF LABOR,

Complainant,

v.

TRI-CITY ELECTRICAL CONTRACTORS, INC.,
Respondent.

OSHRC Docket No. 90-248

APPEARANCES:

Rafael Batine, Esquire, Office of the Solicitor,
U. S. Department of Labor, 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 the provisions of section 10(c) of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 651, et seq .) and seeks affirmation of citations
issued to the respondent following an inspection of a construction project designated as
the Cypress Ridge and Cypress Run Apartments located on Apopka Vineland Road in Orlando,
Florida.  At the time of the inspection, respondent was engaged as the electrical
subcontractor at this multi-employer work site which was under the direction and control
of the general contractor, Trammell-Crow, Inc. (Tr. 18).

The Secretary's inspection was conducted by
Compliance Officer Kristas H. Nicou in October 1989.  Nine apartment complexes were
under construction at the site, some of which were framed and decked to the third-story
level (Tr. 20).  Approximately 150 craft employees were engaged at the site,
including about 15 employees of the respondent (Tr. 21).  During the course of his
inspection, Nicou met with respondent's project manager, David Gardner, who accompanied
Nicou on his walkaround ( id .).  Nicou observed and photographed three
conditions 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).  At buildings one and six, Nicou
observed respondent's employees using "job-made ladders" which were of
substandard construction and were not tied, blocked or secured to prevent displacement
(Exs. C-1, C-2, C-3, C-4; Tr. 23-24).  Throughout the work site, Nicou observed
respondent's employees using open-sided floors around the perimeter of the buildings.
  These floors were not protected by standard guardrails, exposing employees to falls
of 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

1

29 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 in buildings 1 and 6, on or about 10/19/89.

2

29 CFR 1926.450 (b) (12):  Cleats on job-made ladders were not inset into the edges
of the side rails one-half inch, or filler blocks were not used on the rails between the
cleats.  The cleats were not secured to each rail with three 10d common wire nails or
fasteners of equivalent strength.  Cleats on job-made ladders were not uniformly
spaced, 12 inches top-to-top:

(a) Job-made ladders used to give access to the
various elevations in building 1 and 6, on or about 10/19/89.

Repeat Citation 2

1

29 CFR 1926.500 (d)(1):  Open-sided floors or platforms, 6 feet or more above
adjacent floor or ground level, were not guarded by a standard railing or the equivalent
on all open sides:

(a) South side of building 1, first and second
floor, a breezeway 68 inches wide giving access to the various units, did not have
guardrails at 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 fall hazards up to 16 feet high, on or about 10/20/89.

(c) Building 5, second floor, a breezeway 68
inches 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. WAS
PREVIOUSLY CITED FOR A VIOLATION OF THIS OCCUPATIONAL SAFETY AND HEALTH STANDARD OR ITS
EQUIVALENT STANDARD 1926.500 (d) (1) WHICH WAS CONTAINED IN OSHA INSPECTION NUMBER
101157824, CITATION NUMBER 01, ITEM NUMBER 1b, ISSUED 9/18/87.

In its answer and at the hearing, respondent
admitted the factual allegations contained in paragraphs seven, eight and nine of the
Secretary's complaint.  Respondent also admitted its employees were exposed to the
hazards alleged in the Secretary's complaint and that it had 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 has established a prima facie case on the basis of
respondent's admissions.  Respondent argues, however, that the hazards occasioned by
these ladders and unguarded open-sided floors were created and controlled by the general
contractor; that respondent took reasonable steps to protect its employees from these
hazards and that it is entitled 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 CCH OSHD � 20,690 (Nos. 3694 & 4409, 1976), the Commission
held that a subcontractor on a multi-employer construction site could defend against a
charge or exposure or its employees to hazards which it did not create or control by
showing that such employees were protected by realistic measures undertaken by the
subcontractor as an alternative to literal compliance 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 for establishing this affirmative defense on the shoulders of the contending
subcontractor.  The Commission also set forth an explanation of the steps a
subcontractor must take to demonstrate it has taken realistic alternative measures to
protect employees:

[A] subcontractor cannot be permitted to close
its eyes to hazards to which its employees are exposed, or to ignore hazards of which it
has actual knowledge.  As noted above, each employer has primary responsibility for
the safety of its own employees.  Simply because a subcontractor cannot himself abate
a violative condition does not mean it is powerless to protect its employees.  It
can, for example, 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 the absence of such
actions, we will still hold each employer responsible for all violative conditions to
which its employees have access.  (4 BNA OSHC at 1189).

The record in this case is undisputed that
respondent's employees were exposed to the hazards alleged in the Secretary's citations
and that respondent had knowledge of these conditions.  It is also clear that
respondent did not create or control these conditions. The issue for resolution is whether
respondent has carried its burden of showing that it took reasonable steps to protect its
employees under the circumstances disclosed in the record.

Mr. James Powers, respondent's current safety
director who represented respondent at the hearing, [[1]] outlined respondent's position
in statements made to the court during the course of the hearing.  Respondent's
principal contention is that it made frequent but unsuccessful requests to the general
contractor concerning the need for appropriate guardrails and ladders, but its requests
were ignored.  In view of this circumstance, respondent urges that its only recourse
would be to refuse to work in these hazardous areas, thereby subjecting respondent to
termination of its contract and the economic perils which would flow from such an act (Tr.
10).  In addition, respondent contends it took realistic measures to protect
employees through the utilization of 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 and offered into the record eight documentary exhibits.  This evidence
will now be considered to determine if respondent has carried its burden of proof.

Rance Borderick has been employed by respondent
for 18 years and is the manager of its residential department (Tr. 60).  On July 24,
1989, after learning from David Gardner that stairways at the work site were not guarded
by standard railings, he sent a memorandum to Bill Houghie, a regional 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.  This occurred on the Sea Harbour Apartment job off of Kirkmon
Road.  Any stairway without proper railings is considered a serious violation.
  Both of the above projects need attention regarding this matter.  Your help
will be appreciated.

It is important to note that this memorandum
refers only to a failure to guard stairways, an item not cited by the Secretary.  It
does not mention defective ladders or unguarded floors, the subjects of the Secretary's
citations.  Borderick testified he wrote the memorandum after being advised by
respondent's project manager, David Gardner, of missing stairway railings (Tr. 65).
  He testified he was not advised of the other hazardous conditions existing on the
jobsite nor did he communicate with the general contractor concerning defective ladders or
unguarded 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 thousand to a million and a half
dollars" a year from its work for Trammell Crow (Tr. 60).  After sending the
memorandum to the general contractor, he received an angry telephone call from one of its
regional 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 respondent
for 28 years and is currently its superintendent (Tr. 67).  His only contribution to
the record was to verify that respondent has a safety program and conducts two safety
meetings each month with its employees (Tr. 68).  He was unable to confirm that
employees assigned to work around hazardous conditions (missing guardrails) at the work
site in question were given any direction concerning the avoidance of these hazards or
that alternative means to protect against injury were employed by respondent (Tr. 70).
  In fact, he had no responsibilities at this jobsite and had not 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-half months (Tr. 72).  His testimony, therefore, did not relate to the time
period at issue in this proceeding.  Lorenzo offered little to the record except to
confirm that he was given some orientation on safety matters on his first day of
employment and was furnished with respondent's safety handbook (Ex. R-1; Tr. 74, 75).
  The entire orientation procedure took about an hour and a half (Tr. 76).

Edward G. Bruhns was respondent's job
superintendent at the work site during the pertinent period.  He worked directly
under David Gardner and Rance Borderick and was responsible for jobsite safety (Tr.
79-80).  Bruhns was aware of the defective ladders and unguarded floors and reported
these conditions to his supervisors and also to Bill Houghie and 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 Bill
Houghie (Tr. 84, 89).  He advised the general contractor that he did not want his man
to go up in the area where these hazards existed, but "unfortunately, the general
contractor's attitude was, you will be up there tomorrow, or I'll get somebody up there to
do it" (Tr. 83). He further testified that he voiced his concerns "throughout
the 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 had
set up safetywise and, we tried to fulfill those safety requirements and still fulfill our
obligation as a subcontractor to Trammell-Crow" (Tr. 95).  To counteract the
failure of the general contractor to abate the hazardous conditions, Bruhns instructed
employees working under his supervision how to avoid the hazardous conditions or how to
safely work around them (Tr. 83, 84, 85).  These instructions were given at
respondent's safety meetings and also on the job whenever employees were required to work
in 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).  Lasalle testified he attended safety meetings twice a month at which safety
concerns were a regular topic of discussion (Tr. 115).  He further testified he
regularly received instructions on the job concerning how to avoid or work safely around
the defective ladders and unguarded floors (Tr. 115-118).

Respondent's documentary exhibits provide little
assistance to the court in resolving the ultimate issue.  Exhibit R-1 is a copy of
respondent's safety handbook which is issued to each employee at the time of employment.
  It contains the usual safety subjects covered in pamphlets of this type including
an admonition to secure portable ladders.  Exhibit R-2 is a copy of the contract
executed between respondent and the general contractor.  It has limited relevance to
the issues in the case except for the provision contained in paragraph seven which
provides for harsh remedies against respondent in the event respondent failed to perform
its work.  Exhibit R-3 is a list obtained by respondent from the Occupational Safety
and Health Administration purporting to show previous inspections of respondent conducted
under the 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 documents including safety
meeting minutes, letters from respondent to general contractors alerting them to hazardous
conditions at various work sites, communications from respondent's safety director to
field personnel concerning safety on the work sites, etc.  All of these documents,
however, were generated after powers took over as safety director and subsequent to the
Secretary's inspection.  Accordingly, they bear no relevance to the situation which
existed at the jobsite in question during the pertinent period.

DISCUSSION

The success or failure of respondent's
affirmative defense depends upon resolution of the following questions:

1.  Did respondent make a good faith effort
to induce the general contractor to abate the hazardous conditions?

2.  In the alternative, did respondent take reasonable steps to protect its employees
by instructing them to avoid these hazards or exercise care 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 respondent made written
complaints to the general contractor during the pertinent period.  However, the
record reflects that Bruhns, respondent's job superintendent, discussed the conditions
concerning the ladders and railings on several occasions with the general contractor's job
superintendent and his assistant in an effort to get these conditions rectified (Tr. 83).
  Bruhns frankly admitted he did not aggressively pursue the matter because of his
reluctance to jeopardize his company's relationship with the general contractor.  He
testified that he discussed this matter with his immediate supervisor, Dave Gardner, who
also brought the matter to the attention of the general contractor's supervisory personnel
(Tr. 83-84).  This court observed the demeanor of this witness during his testimony
and finds no reason to discount his credibility. While this court believes respondent
could have been more forceful in its demands upon the general contractor, respondent's
timidity is understandable in view of the economic realities which existed under the terms
of respondent's contract.  This court concludes that respondent did not ignore its
safety responsibilities at this work site and made reasonable efforts to induce the
general contractor to abate the unsafe conditions.  These efforts, although minimal,
reflect a recognition by respondent of its safety responsibilities "that is consonant
with the goals of the Act."  Dutchess Mechanical Corp ., 78 OSAHRC 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 to protect its employees from the cited hazards.  Bruhns
testified he instructed employees concerning how to avoid the hazards or work around them
safely (Tr. 83).  This was done at respondent's safety meetings as well as on the job
(Tr. 84).  Bruhns' testimony in this respect was corroborated by that of Jody
Lasalle[[3]] who confirmed that employees were regularly instructed regarding safety both
on the job and at safety meetings (Tr. 115, 116).  The only evidence offered by the
Secretary to counteract the testimony of Bruhns and Lasalle was the testimony of
Compliance Officer Nicou, who interviewed "six or seven" of respondent's
employees during his inspection who purportedly informed him that they had received no
instructions from respondent to avoid or work safely around the defective ladders and the
open-sided floors (Tr. 39, 40).  Even though Nicou's testimony falls within the
hearsay exception provided in Rule 801 (d) (2) (D) of the Federal Rules of Evidence and is
admissible, this court assigns little weight to its probative value.  Nicou did not
identify these employees by name nor did the Secretary's counsel develop the facts and
circumstances relative to these interviews.  Nicou's testimony, based upon admissible
hearsay, is insufficient to overcome the testimony of Bruhns and Lasalle.  It is
concluded that respondent took reasonable alternative measures to protect its employees by
instructing them to avoid the hazards or to exercise 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 as the electrical subcontractor at a multi-employer work site
located in Orlando, Florida.  Nine apartment complexes were under construction at
this work site, some of which were framed and decked to the third-story level.
  Approximately 15 employees of respondent were engaged in work activities at this
site.

2.  On October 19, 1989, the work site was inspected by a compliance officer of the
Occupational Safety and Health Administration.  At the time 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 improperly constructed in that
the 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 secured
to the rails with three 10d common wire nails or fasteners; and the cleats were not
uniformly spaced;

(c) Open-sided floors six feet or more above adjacent floors were not guarded 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 in the foregoing finding of fact.  Respondent had knowledge
of these conditions and was aware that its employees were exposed to these hazards.

4.  The conditions described in finding of fact two were the responsibility of the
general contractor and were neither created nor controlled by respondent.

5.  Respondent's supervisors at this work site called these hazardous conditions to
the attention of representatives of the general contractor on several occasions in an
effort to induce the general contractor to abate the conditions.  Respondent's
efforts, however, were unsuccessful and 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 employees in ways to avoid or minimize
exposure to these conditions.  These instructions were disseminated at respondent's
bi-weekly safety meetings and 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 in this proceeding.

2.  Respondent has established an affirmative defense under the Anning-Johnson/Grossman
rule by demonstrating that it took reasonable alternative measures to protect its
employees 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. SALYERS

Judge

Dated: August 23, 1990

FOOTNOTES:

[[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 of respondent's safety practices at the time of or prior to
the Secretary's inspection.

[[2]] As noted above, exhibits R-4 through R-8
do not relate to the pertinent period.

[[3]] Although this witness was subpoenaed by
the Secretary, he was not called to support the Secretary's case (Tr. 114).  He was,
however, called by respondent and is considered by this court to be a credible witness.