Zemon Concrete Corp. v. Occupational Safety and Health Review Com'n

• Decision Date: 11 May 1982
• Docket Number: No. 79-1793,79-1793
• Citation: 683 F.2d 176
• Parties: 10 O.S.H. Cas.(BNA) 1737, 1982 O.S.H.D. (CCH) P 26,139 ZEMON CONCRETE CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent. Ray Marshall, Secretary of Labor, Co-Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 176

683 F.2d 176

10 O.S.H. Cas.(BNA) 1737, 1982 O.S.H.D. (CCH)

P 26,139

ZEMON CONCRETE CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent Ray Marshall, Secretary of Labor, Co-Respondent.

No. 79-1793.

United States Court of Appeals Seventh Circuit.

Submitted May 11, 1982. ^*

Decided June 2, 1982. ^**

Allen H. Meyer, Chicago, Ill., for petitioner.

Allen H. Feldman, Dept. of Labor, Washington, D. C., for respondent.

Before CUMMINGS, Chief Judge, and PELL and BAUER, Circuit Judges.

PER CURIAM.

Under 29 U.S.C. § 660(a), Zemon Concrete Corp. ("Zemon") petitions for review of an order of the Occupational Safety and Health Review Commission ("OSHRC"). The ALJ upheld citations for one serious violation and six non-serious violations of Occupational Safety and Health Act ("OSHA") standards. ¹ The ALJ's decision became a final OSHRC order when no Commissioner ordered discretionary review of it. See 29 U.S.C. § 661(i).

I.

A subcontractor, Zemon was contractually obligated to perform the concrete work for an eight-story office building being constructed in Schaumburg, Illinois. After an OSHA compliance officer's inspection, the general contractor and all subcontractors received two citations for violations of OSHA standards.

One citation, labeled "serious," included two violations; the other included eight "non-serious" violations. As set forth in note 1, supra, the ALJ upheld one "serious" violation for failing to comply with the "floor openings" standard, which requires standard railings on all sides of a floor opening. ² The ALJ also upheld six "non-serious" violations. The violations and the factual bases for them are: (1) "fire protection" standards-no fire alarm system and welding equipment near combustible material; (2) "ladderway floor opening" standard-removal from three sides of movable barricades provided for a three foot by three foot roof opening, exposing Zemon employees to a possible twelve foot fall; (3) failure to guard or cover floor holes-Zemon employees on two floors worked near uncovered holes as large as twelve inches in diameter; (4) failure to provide stair railings; ³ and (5) failure to fill hollow metal pantype treads with concrete or temporary wooden planks. ⁴

II.

A.

As both parties apparently agree, Anning-Johnson v. OSHRC, 516 F.2d 1081 (7th Cir. 1975), controls our disposition of the liability issues presented in the instant case. Zemon also apparently concedes, as it must, that nothing in Anning-Johnson explicitly precludes its liability for the "serious" violation at issue here. ⁵ Rather, Zemon contends that we should extend the Anning-Johnson rule to "serious" violations because the distinction between "serious" and "non-serious" violations is arbitrary, claiming that the "serious" violation found in the instant case was labeled "non-serious" in Anning-Johnson. We decline to extend Anning-Johnson to preclude Zemon's liability for the "serious" violation at issue here for the following reasons.

The compliance officer testified that in determining whether the fall hazard was serious-that is, whether the violative condition caused a substantial possibility of death or serious physical harm, 29 U.S.C. § 666(j)-he considered the possible fall distance, the surface below, and the type of injury that most likely would result from a fall. Substantial evidence supports the ALJ's finding that Zemon employees were exposed to a potential fall of ninety-six feet down an elevator shaft. See note 2, supra. Thus, the "serious" violation at issue here satisfied the statutory criteria.

Nor was the labeling decision arbitrary. Contrary to Zemon's contention, the "fall hazard" violation deemed "non-serious" in Anning-Johnson was materially different from the "fall hazard" deemed "serious" in the instant case. The subcontractor in Anning-Johnson was cited for technically improper perimeter guards around an elevator shaft, ⁶ while in the instant case there simply was no protection from falling through sections of the elevator shaft. ⁷

Zemon also argues that the "other" violations in this case could just as well have been labeled "serious," again contending that the distinction is arbitrary. ⁸ With respect to the stairways, Zemon claims there was testimony that a worker could fall more than one floor, in which case the injury could be serious. In fact, the testimony to which Zemon refers was that a worker could only fall one floor, or a maximum of ten feet. The ladderway fall distance was also too short to be fatal or serious. ⁹ The floor holes were too small to be fallen through. Although the combustible material which was present created a fire hazard, it did not pose the risk of a serious fire.

B.

We also uphold the citations for the "non-serious" violations. Under Anning-Johnson, a subcontractor at a multi-employer construction site may be held liable for "non-serious" violations for which the subcontractor is jointly responsible, which the subcontractor is created, or for which the subcontractor is otherwise responsible. However, a subcontractor may not be held liable merely because its employees were exposed to conditions constituting "non-serious" violations which the subcontractor "neither created, caused, nor (was) otherwise responsible for ...." 516 F.2d at 1091. Liability for the "non-serious" violations at issue in the instant case was not imposed merely because Zemon's employees were exposed to them. ¹⁰

With respect to the "guardrail" violation, the record reveals that, after Zemon complained, the general contractor furnished movable barricades which Zemon employees removed to perform their work. However, the barricades were not always replaced immediately after the work requiring their removal was completed. Yet, even the contract required such replacement "as soon as possible, but in any event, not later than the end of each working day." ¹¹ Thus, contrary to its assertion, Zemon did not make reasonable efforts to protect its employees from the hazards resulting from the lack of proper barricades. ¹²

The record also supports the ALJ's determinations with respect to the other "non-serious" violations. For example, the ALJ found that Zemon could have caused the installation of fire protection equipment and that correction of the "fire hazard" violation was not "an esoteric matter requiring special skill or knowledge, nor (did) it fall within the purview of a particular craft jurisdiction." ¹³ Zemon also could have covered the floor holes and corrected the stairway violations. Zemon employees constructed wood framework with tools and materials which could have been used for temporary stair railings and pan fillings, and to cover the floor holes. ¹⁴

Zemon also argues that if it had undertaken to perform the required corrective work, it would have violated union agreements. However, at least with respect to covering the floor holes, Zemon feared no craft-jurisdiction disputes, and correction of this violation was not outside Zemon's area of expertise. Indeed, Zemon employees had covered some of the holes. ¹⁵ Alternatively, if Zemon was justifiably worried about breaking union agreements because it lacked craft jurisdiction, it should have requested the general contractor to direct the carpenters to install the required items.

Finally, Zemon argues that it registered complaints with the construction superintendent and warned its employees during safety meetings to take care when working near hazards. However, the ALJ found that these complaints were no more than perfunctory, and fell "short of the corrective steps required of an employer under the Act." Because Zemon's complaints caused the general contractor to install movable barricades around the elevator shaftway, a similar effort on Zemon's part presumably would have caused the general contractor to abate the remaining violations.

In conclusion, the ALJ found that Zemon was aware of the obvious hazards and had the ability, both practically and legally, either to correct the violations itself or to demand that they be corrected. The ALJ considered Zemon's exculpatory arguments for each "non-serious" violation and found in each instance that correction was achievable. Thus, the ALJ properly held Zemon liable for the "non-serious" violations which it either created or controlled.

III.

The Act gives the Commission authority to assess penalties "giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations." 29 U.S.C. § 666(i). The Secretary has set forth in his Compliance Operations Manual standard percentages of reduction for each of the statutory factors. The compliance officer gave Zemon the standard reduction of 20% each for size and good faith, and 0% reduction for history. Zemon argues that its good faith was not given due consideration, claiming that its good faith compliance efforts should have merited a 100% reduction and resulted in no assessed penalty in spite of the proposed penalty for gravity. Because a penalty cannot be reduced to zero, Zemon contends the Secretary's standard reductions are arbitrary and unreasonable.

The reduction of 20% for good faith is neither arbitrary nor unreasonable. The Secretary has broad discretion to fix penalties for OSHA violations. His determination that standard reductions shall be less than 100% reflects an adherence to the intent of the Act, which is to encourage employers to provide a safe workplace. If, as Zemon suggests, a 100% reduction was permitted for any one statutory factor, the purpose of the Act would be frustrated. For example, if an employer is cited for a violation whose gravity merits some penalty, or if the employer has a history of violations, then the protective purpose of the Act demands that the penalty not be reducible by 100%, even if the...