504 F.2d 1255 (4th Cir. 1974), 73-2471, Brennan v. Gilles & Cotting, Inc.

Docket Nº:73-2471.
Citation:504 F.2d 1255
Party Name:1974-1975 O.S.H.D. ( 18,861 Peter J. BRENNAN, Secretary of Labor, Petitioner, v. GILLES & COTTING, INC., and Occupational Safety and Health Review Commission, Respondents.
Case Date:October 18, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 1255

504 F.2d 1255 (4th Cir. 1974)

1974-1975 O.S.H.D. ( 18,861

Peter J. BRENNAN, Secretary of Labor, Petitioner,

v.

GILLES & COTTING, INC., and Occupational Safety and Health

Review Commission, Respondents.

No. 73-2471.

United States Court of Appeals, Fourth Circuit

October 18, 1974

Argued May 8, 1974.

Page 1256

Barbara L. Herwig, Atty., U.S. Dept. of Justice (Irving Jaffe, Acting Asst. Atty. Gen., Carla A. Hills, Asst. Atty. Gen., Stephen F. Eilperin, Atty., U.S. Dept. of Justice, on brief), for petitioner.

Robert C. Adams, Fairfax, Va. (Kennon W. Bryan, Fairfax, Va., on brief), for respondent Gilles and Cotting, Inc.

Allen H. Sachsel, Washington, D.C., Appellate Counsel, for respondent Occupational Safety and Health Review Commission.

Before BRYAN, Senior Circuit Judge, and WINTER and FIELD, Circuit judges.

WINTER, Circuit Judge:

Following the collapse of a scaffolding which caused the death of two workers on the payroll of Southern Plate Glass

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Company (Southern), a subcontractor of Gilles & Cotting, Inc. (Gilles), the Secretary of Labor issued citations against Southern and Gilles for 'serious violations' 1 of the safety regulations governing scaffolds. Southern did not contest its liability, but Gilles challenged the citation against it and the accompanying proposed fine of $550. The administrative judge decided both that the fatal scaffolding assembly had been constructed in violation of safety regulations properly promulgated pursuant to the Occupational Safety and Health Act of 1970 (OSHA), and that under the statute Gilles was responsible for the violations. Though he found that Gilles was answerable because its payroll employees had access to the zones of danger created by the scaffold, the principal basis of his decision was a broader holding that Gilles, as general contractor, was liable under the Act for safety violations hazardous to employees of subcontractors.

On review, the Commission, in a split decision, reversed. Stating that no payroll employee of Gilles was 'affected' by the scaffold's hazardous condition and concluding that Gilles should not be jointly responsible for the hazard which Southern's scaffolding created for Southern's workers, the majority exonerated Gilles. The Secretary appealed.

We conclude that, under OSHA, the Commission was empowered to decide both of the questions of whether a general contractor should be concurrently responsible for the safety of subcontractor workers as a joint employer and of whether proof of employee access to the zones of danger created by a safety violation, short of proof of presence in the zones of danger, will suffice to support a citation either way. We therefore affirm the Commission's decision that a general contractor is not jointly responsible for the safety of subcontractor workers. However, we must remand the second issue of access versus presence, since the Commission's decision was an unexplained rejection of the administrative judge's decision and an unexplained departure from the rule of decision followed in other OSHA cases that access alone is sufficient to make out a violation. Finally, we sustain the right of the Commission, against the the challenge of the Secretary, to be an active party litigant in the instant proceedings to review.

I.

Gilles was the general contractor for the construction of a fourth-floor addition on a building at the National Aeronautics and Space Administration's (NASA's) Goddard Manned Space Flight Center in Greenbelt, Maryland. Gilles subcontracted the glass construction work on the project to Southern.

Under the construction contract between Gilles and NASA, Gilles was required to submit an accident prevention plan. The plan submitted placed primary safety responsibility on Gilles' job superintendent. His responsibilities included familiarizing himself and pertinent supervisory personnel with the applicable safety regulations, enforcing the accident prevention plan, checking supervisory personnel for compliance with their safety responsibilities, and coordinating Gilles' accident prevention activities with those of the subcontractors. Gilles' responsibilities as a general contractor included overall safety and accident prevention at the construction site.

Gilles' accident prevention plan provided that scaffolds were to be constructed and used in accord 'with good practice.' Gilles knew the construction standards pertaining to scaffolds, and

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was aware that they required frequent inspections.

The fatal scaffolding units were supplied, constructed, and used by workers on Southern's payroll. The roof top assembly they built consisted of two tubular or patent scaffolding units each holding an I-beam that projected over the roof to support a suspended staging or swinging platform. The I-beams were bound to the wheeled scaffolding units by 3/4 inch rope. The counterbalance on each unit consisted of approximately 350 to 400 pounds of elevator weights and roofer cement blocks set unsecured on a plywood platform against a two-by-four at the back of the scaffolding. At first, the units were tied back with rope to eye bolts or window washing rings in the roof. After a few 'drops,' however, the scaffolding units were no longer tied to the eye bolts in the roof and no other means of securing them were used.

The scaffolding assembly was used by Southern's workers to install windows in the building. Two men and a quantity of glass panes would be lowered to the correct height along the face of the building where the work was to be performed. At the completion of a stage of the work, the entire scaffolding assembly would be moved laterally to a new position where another 'drop' would be made. The scaffolding design was of a type very infrequently used in this type of work and was adopted to make the work go faster.

The fatal accident occurred while two of the workers on Southern's payroll were in the process of putting in a set of windows following a routine 'drop' down the face of the building. The two men fell to their death, 374 pounds of glass crashed to the ground, and one of the tubular scaffolding units tipped over the parapet dropping 350 to 400 pounds of counterweights on the roof or ground as it tumbled earthward. The Department of Labor's Occupational Safety and Health Administration's Compliance Officer estimated that the debris was spread out over an area 50 feet in diameter.

II.

The administrative law judge held that the patent or tubular scaffolding assembly violated the Secretary of Labor's safety regulation governing scaffolds promulgated pursuant to the Occupational Safety and Health Act, 29 C.F.R. 1926.451, in three respects: (1) that the failure to secure the counter-weights violated 29 C.F.R. 1926.451(a)(2), which provides in part that 'unstable objects such as barrels, boxes, loose brick, or concrete blocks, shall not be used to support scaffolds or planks,' (2) that the scaffolding assembly violated P(2) of 29 C.F.R. 1926.451(g) covering outrigger scaffolds which requires that 'the inboard ends of outrigger beams shall be secured against tipping and the entire supporting structure shall be securely braced in both directions to prevent any horizontal movement,' and (3) that the scaffold assembly violated 29 C.F.R. 1926.451(a)(7) which provides that 'scaffolds and their components shall be capable of supporting without failure at least 4 times the maximum intended load.' Since the parties had stipulated that the amount of the proposed $550 penalty was reasonable and that the scaffolding assembly's noncompliance with the safety standards constituted a 'serious violation' under the Act, the only question remaining was whether Gilles was responsible for the violation. On the factual predicates that Gilles was responsible for safety at the job site and was aware of the construction standards pertaining to scaffolds, the administrative judge ruled that Gilles was legally responsible under the Act for the violations on two grounds: (1) Gilles' workers, as well as those of other subcontractors, had 'access' to the hazard and 'could have been in a position to suffer injury from the collapse of the scaffolding,' and (2) alternatively, Gilles was responsible for safety violations hazardous to subcontractors' workers such as Southern's because 'in the construction of a building where subcontractors are also used it is logical and necessary that

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overall safety and accident prevention be the responsibility of the general contractor.'

Discretionary review by the Occupational Safety and Health Review Commission was invoked, and in a 2-1 decision, the Commission reversed. The majority rejected the administrative judge's first ground of decision that workers on Gilles' payroll had access to the scaffold's danger zones with the simple, unelaborated statement that 'no employee of the Respondent herein used the scaffold and no employee of this Respondent was affected by any alleged unsafe condition of the scaffold.' Addressing the remainder of its opinion to the second ground of decision, the majority held that Gilles, as a general contractor, was not responsible for safety violations hazardous to Southern's workmen because it was not 'in fact' an 'employer' of the subcontractor's workers-- and thus, under the majority's interpretation of the Act, did not owe them any duty-- and because it was 'unfair' and did not 'further the purposes of the Act' to make Gilles jointly responsible with Southern when Southern had the means to abate the violation-- the right to direct and to control the workers on its payroll. The dissenting Commissioner would have upheld the citation and penalty on the narrow basis of the administrative judge's first ground of decision, that the scaffold created a hazard for workers on Gilles' payroll.

III.

A. Because OSHA is still a relatively new and unfamiliar piece of federal...

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