Anning-Johnson Co. v. U.S. Occupational Safety and Health Review Com'n, ANNING-JOHNSON

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore STEVENS, SPRECHER and TONE; SPRECHER; TONE
Parties3 O.S.H. Cas.(BNA) 1166, 1974-1975 O.S.H.D. ( 19,684 COMPANY and Workinger Electric, Incorporated, Petitioners, v. UNITED STATES OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Peter J. Brennan, Secretary of Labor, United States Department of Labor, Respondents.
Docket NumberNos. 74-1381,ANNING-JOHNSON,74-1382
Decision Date27 May 1975

Page 1081

516 F.2d 1081
3 O.S.H. Cas.(BNA) 1166, 1974-1975 O.S.H.D. ( 19,684
ANNING-JOHNSON COMPANY and Workinger Electric, Incorporated,
Petitioners,
v.
UNITED STATES OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION and Peter J. Brennan, Secretary of
Labor, United States Department of
Labor, Respondents.
Nos. 74-1381, 74-1382.
United States Court of Appeals,
Seventh Circuit.
Argued Feb. 19, 1975.
Decided May 27, 1975.

Page 1082

John A. Jeffries, Steven H. Adelman, Chicago, Ill., for petitioner.

McNeill Stokes, Atlanta, Ga., for amicus curiae.

Carla A. Hills, Asst. Atty. Gen., Judith H. Norris, Atty., App. Section, Civ. Div., Dept. of Justice, Washington, D. C., for respondents.

Before STEVENS, SPRECHER and TONE, Circuit Judges.

SPRECHER, Circuit Judge.

The single narrow issue in this appeal is whether subcontractors working at a multi-employer construction site can receive citations and be held liable for penalties under the Occupational Safety and Health Act of 1970,29 U.S.C. § 651 et seq. (OSHA), for non-serious violations of standards promulgated by the Secretary of Labor to which their employees were exposed, but which the subcontractors neither created nor were responsible for pursuant to their contractual duties.

I

Wright Construction Company, Inc. was the general contractor for the construction of a five-story steel and concrete bank building at Elkhart, Indiana. Petitioner Anning-Johnson Company was a subcontractor on the project with responsibility for furnishing and installing fireproofing for the building. Petitioner Workinger Electric, Inc. was a subcontractor on the same construction site with responsibility for furnishing and installing electrical, plumbing and sheet metal work. Neither subcontractors' contract contained a description of their duties which included general construction or carpentry work.

On May 31, 1973, an Occupational Safety and Health Administration compliance officer inspected the construction site. At the time of the inspection Anning-Johnson employed four employees on the jobsite who were members of Plasters Local 46, Cement Masons Local 532 and Laborers Local 645. Workinger employed fifteen employees at the construction site who were members of Electrical Workers Local 153, Plumbers Local 278 and Sheet Metal Workers Local 164.

It was stipulated that at the time of the inspection that the five floors and the roof of the building were already in place. The walls of the building were not in place and each floor was open at the side and was more than six feet above the adjacent floor and ground level.

The inspector found that on each floor a single steel cable was strung tautly along the edges of the open-sided floor at a height of approximately 40 inches above the surface of the floor. The cable was affixed to vertical columns of the building which were along the edge of the floor, about 50 feet apart. Red ribbons were tied to the cable at various intervals. The cables were the only barrier along the edges of these open-sided floors. There were no intermediate rails in place. At the time of the inspection employees of both subcontractors worked near and at the edge of these open-sided floors.

Located in about the center of the interior of the building was a steel stairway running from the basement to the fifth floor. The stairway was approximately 42 inches wide and was open on both sides except for the presence on one side of the next higher flight of the stairway. Each flight of stairs had more than four risers. The stairway from the first to the fifth floor had a railing running along only one side in some areas and had no intermediate rails. Other areas had, on both open sides, a single railing without intermediate rails. The stairway was the only means of reaching the upper floors in the building and at

Page 1083

the time of the inspection it was used by all employees to reach the various floors.

On each floor level there was a floor opening for an elevator shaft. The opening in the floor was a rectangle approximately 5 feet 111/2 inches by 16 feet 2 inches. On the fifth floor at the time of inspection the opening was guarded by a single wood rail running along the edges of the opening at a height of approximately 40 inches above the floor surface. There was no intermediate rail or toeboard along any of the four sides of the opening. 1 The opening on the third floor was covered by 4 foot by 8 foot plywood sheets which lay unsecured on top of 4 inch by 4 inch pieces of lumber running along the two sides of the opening. These plywood sheets were not installed so as to prevent accidental displacement.

Because of these conditions the OSHA inspector cited Wright 2 as well as both petitioners for non-serious violations of 29 C.F.R. §§ 1926.500(d)(1), 1926.500(b)(1) and 1926.500(e)(1). 3 A total fine of $150 against each subcontractor was assessed. 4

It was further stipulated by the parties that neither subcontractor installed the cable, erected any of the railings, or placed the plywood sheets over the floor openings, but that these were installed by employees of Wright or other subcontractors who were members of Carpenters' Local 565 and Laborers' Local 645. Petitioners were not, however, specifically prohibited by the general contractor or by their contract with the carpenters' union from abating the alleged violations. Foremen of both subcontractors were aware of the conditions and nonetheless allowed their men to remain on the job.

The case was presented before the Administrative Law Judge on a theory that the Secretary of Labor's enforcement policy of citing subcontractors for non-serious violations of OSHA standards created by employees of other employers

Page 1084

and which could not be effectively abated by the cited subcontractors was not authorized by the Act. On February 11, 1974, the Administrative Law Judge denied petitioners' motion for summary judgment and affirmed the citations issued and the proposed penalties. It is that decision which petitioners seek to have reviewed. 29 U.S.C. § 660(a). 5
II

The Occupational Safety and Health Act of 1970 was enacted in order to reduce the substantial burdens placed on interstate commerce because of work-related personnel injuries and illnesses. 29 U.S.C. § 651. Pursuant to the Act, an employer's duty flows from two sources. First, the Act requires that employers "shall comply with . . . standards promulgated under this chapter." 29 U.S.C. § 654(a)(2). Second, where no standards are applicable, Sun Shipbuilding & Drydock Co., 4 OSAHRC 1020, 1043 (1973) (Review Commission), an employer is subject to a general duty to "furnish . . . his employees . . . a place of employment . . . free from recognized hazards . . . likely to cause death or serious physical harm to his employees." 29 U.S.C. § 654(a) (1). This appeal does not deal with the application of the general duty clause. 6

Pursuant to the Act, the Secretary of Labor is given general authority to promulgate occupational safety and health standards. 29 U.S.C. § 655. 7 The Secretary is authorized to send his agents to a worksite to inspect the area and equipment. 29 U.S.C. § 657(a). If upon such investigation the Secretary or his representative believes that an employer has violated any standard he shall issue a citation setting forth the nature of the violation and a reasonable time for abatement. 29 U.S.C. § 658(a). Thereafter, the Secretary shall notify the employer of any proposed penalty. 8 The employer may contest the citation or the proposed penalty or both. 9

Page 1085

The Commission, through its decisions, has consistently taken the position that exposure to conditions that violate one of the construction standards constitutes a sufficient basis upon which the Secretary may issue a citation and assess a fine against a subcontractor pursuant to 29 U.S.C. §§ 654(a)(2), 666, notwithstanding the fact that the violation is non-serious and was not created by the cited subcontractor. Thus, in Charles S. Powell d/b/a Powell Electric, 3 OSAHRC 1056 (1973) (Review Commission Judge), it was said:

(T)hese contentions by Respondent evade the real issue which is the exposure, if any, by Respondent of his employees to hazards. The underlying duty of each and every employer under Section 5 of the Act, regardless of whether an alleged violation was predicated upon paragraph (a)(1) or (a)(2) thereof, is to refrain from exposing employees to hazards. The Act grants no exceptions nor does it permit any delegation of this duty. The Act does not abridge the right to contract, it merely implies that an employer cannot by contract evade this duty to furnish a place of employment that is free of hazards. This duty is imposed upon each employer and makes no distinction as to whether the employer is a general contractor or a subcontractor; it may even include a lessor of employees relinquishing all control. Further the Act does not allow for any severance of responsibility predicated upon who produced or created the hazard or who may initially be responsible for its eradication.

Simply stated, whenever a subcontractor exposes his employees to hazards the employer subjects himself to the enforcement provisions of the Act and this is so regardless of who created the hazard or who may be responsible for its elimination.

Id. at 1060-61. 10

The Commission's position and the one which the Secretary urges on this appeal has not gone uncriticized. In Robert E. Lee Plumbers, Inc., OSHRC Docket No. 2431 (Jan. 30, 1974) (Commission Review Ordered), it was said:

Admittedly, the respondent is responsible for the "place of employment," yet no one should conclude that such responsibility imposed by the Act embraces the entire work project as shown in this case. This responsibility is the responsibility of the prime contractor. What then is the responsibility of the respondent, as a subcontractor employer? His responsibility is his worksite or that portion of the work...

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35 practice notes
  • Solis v. Summit Contractors, Inc., No. 07-2191.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 26, 2009
    ...contractor, who has no employees of his own exposed to a cited violation is necessarily excused from liability under the [OSH] Act." 516 F.2d 1081, 1091 n. 21 (7th In light of these decisions, OSHRC retreated from its position in City Wide and Gilles. See Anning-Johnson Co., 4 BNA OSHC 1193......
  • Melerine v. Avondale Shipyards, Inc., No. 80-3379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 23, 1981
    ...(2d Cir. 1975); Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d at 334-37, 582 P.2d at 507-08; see Anning-Johnson Co. v. OSHRC, 516 F.2d 1081, 1091 & n.21 (7th Cir. 1975) (dictum); cf. Rabar v. E.I. duPont de Nemours & Co., 415 A.2d at 503-05 (state statute modeled on 15 The difference b......
  • C & M Builders v. Strub, No. 77
    • United States
    • Court of Appeals of Maryland
    • June 23, 2011
    ...were responsible for pursuant to their contractual duties.” Beatty, 577 F.2d at 537 (quoting Anning–Johnson Co. v. United States OSHRC, 516 F.2d 1081, 1082 (7th Cir.1975)) (holding that “one who is to be charged with absolute liability [must] be realistically in a position to comply with th......
  • Strub v. C & M Builders, No. 53
    • United States
    • Court of Special Appeals of Maryland
    • May 28, 2010
    ...contractor liable under OSHA. Id. at 820 (citing Brennan v. OSHRC, 513 F.2d 1032, 1308 (2d Cir.1975); Anning-Johnson Co. v. OSHRC, 516 F.2d 1081, 1091 n. 21 (7th Cir.1975)). Thus, “OSHRC announced its revised position that a contractor who has either created a hazard or controls a hazardous......
  • Request a trial to view additional results
35 cases
  • Solis v. Summit Contractors, Inc., No. 07-2191.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 26, 2009
    ...contractor, who has no employees of his own exposed to a cited violation is necessarily excused from liability under the [OSH] Act." 516 F.2d 1081, 1091 n. 21 (7th In light of these decisions, OSHRC retreated from its position in City Wide and Gilles. See Anning-Johnson Co., 4 BNA OSHC 1193......
  • Melerine v. Avondale Shipyards, Inc., No. 80-3379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 23, 1981
    ...(2d Cir. 1975); Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d at 334-37, 582 P.2d at 507-08; see Anning-Johnson Co. v. OSHRC, 516 F.2d 1081, 1091 & n.21 (7th Cir. 1975) (dictum); cf. Rabar v. E.I. duPont de Nemours & Co., 415 A.2d at 503-05 (state statute modeled on 15 The difference b......
  • C & M Builders v. Strub, No. 77
    • United States
    • Court of Appeals of Maryland
    • June 23, 2011
    ...were responsible for pursuant to their contractual duties.” Beatty, 577 F.2d at 537 (quoting Anning–Johnson Co. v. United States OSHRC, 516 F.2d 1081, 1082 (7th Cir.1975)) (holding that “one who is to be charged with absolute liability [must] be realistically in a position to comply with th......
  • Strub v. C & M Builders, No. 53
    • United States
    • Court of Special Appeals of Maryland
    • May 28, 2010
    ...contractor liable under OSHA. Id. at 820 (citing Brennan v. OSHRC, 513 F.2d 1032, 1308 (2d Cir.1975); Anning-Johnson Co. v. OSHRC, 516 F.2d 1081, 1091 n. 21 (7th Cir.1975)). Thus, “OSHRC announced its revised position that a contractor who has either created a hazard or controls a hazardous......
  • Request a trial to view additional results

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