7 O.s.h. Cas.(bna) 1004, 1979 O.s.h.d. (cch) P 23,262bratton Corporation, Petitioner, v. Occupational Safety and Health Review Commission, and Raymarshall, Secretary of Labor, Respondents, 590 F.2d 273 (8th Cir. 1979)

Bratton Corporation (Bratton) brings this petition for review of a final order of the Occupational Safety and Health Review Commission (Commission) assessing a penalty against Bratton for exposing its employees to the hazards of a stairway without handrails and of unfilled metal pan-type stairway landings in violation of safety regulations issued under section 5(a) (2) of the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 654(a) (2) (1976). Bratton, a subcontractor at a multiemployer construction site, asserts that it cannot be held liable for the violations because it neither created nor had authority to abate the hazardous conditions. The Commission rejected that defense in the absence of any showing by Bratton that it took any realistic measures, as an alternative to literal compliance with the safety standards, to protect its employees from the known hazards. On review of the record, we affirm the Commission's decision.

Bratton was a subcontractor supplying and installing light steel structural items for the general contractor, Thomas Construction Company, in the construction of a six-story office building in Kansas City, Missouri. At an inspection of the construction site on January 9, 1975, an OSHA inspector observed that three of Bratton's employees had gained access to the third floor by climbing a metal stairway that did not have handrails and in which the hollow, pan-type landings between each flight of steps had not been filled with concrete.

Bratton had installed the metal stairway several weeks previously, but because of some problem in fitting, Bratton returned the handrails for reworking. The contract obligated the general contractor to fill the pan-type treads and landings of the stairway with concrete. The general contractor had filled the treads but not the landings.

The area director of the Department of Labor cited Bratton for two "nonserious" violations of section 5(a) (2) of OSHA:¹  the stairway without handrails as violating 29 C.F.R. 1926.500(e) (1), and the unfilled metal pan-type landings as violating 29 C.F.R. 1926.501(f).²  The area director proposed a penalty of $45. Bratton contested the citations and penalty, and the issues were referred to Administrative Law Judge Alan M. Wienman for hearing.

The uncontradicted evidence produced at the hearing established that Bratton's employees were exposed to hazards caused by violations of the handrail and stair landing regulations and that Bratton knew of these hazards. Judge Wienman upheld the citation for the handrail violation, finding that the lack of handrails was caused by Bratton's delay in performing its contractual duty. However, he vacated the citation for the unfilled landings because

concrete work involved in filling the pan forms was not the contractual responsibility of (Bratton) and not within the jurisdiction of the ironworkers employed by respondent.

In so ruling, Judge Wienman relied on Anning-Johnson Co. v. OS&HRC, 516 F.2d 1081 (7th Cir. 1975), in which the Seventh Circuit absolved a subcontractor of liability for a nonserious violation of OSHA safety standards where that subcontractor neither created nor had contractual authority to remedy the violation. Judge Wienman reduced the penalty assessed against Bratton from $45 to $25.

On petitions by both Bratton and the Secretary of Labor, the Commission granted discretionary review and determined that the uncontradicted evidence established Bratton's liability for both of the violations cited. However, the Commission afforded Bratton the opportunity to introduce additional evidence as to the defenses announced in Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, CCH OSHD P 20,690 (Nos. 3694 & 4409, 1976), and Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, CCH OSHD P 20,691 (No. 12775, 1976), cases decided subsequent to the hearing before Judge Wienman.

In those decisions, the Commission held that a subcontractor on a multiemployer construction site, who neither created nor controlled a condition in violation of safety standards, may defend against liability under OSHA by showing either that (1) it took realistic steps, as an alternative to literal compliance with the standards, to protect its employees, or (2) it neither knew nor reasonably could have known of the violation. Anning-Johnson Co., supra, (1975-1976) CCH OSHD at 24,783-24,784; Grossman Steel & Aluminum Corp., supra, (1975-1976) CCH OSHD at 24,791. See Central of Georgia R. Co. v. OS&HRC, 576 F.2d 620, 624 (5th Cir. 1978).

Bratton did not avail itself of the opportunity to present additional evidence. Bratton now contends that Anning-Johnson Co. v. OS&HRC, 516 F.2d 1081 (7th Cir. 1975), precludes any finding of liability for either alleged violation under 29 U.S.C. § 654(a) (2), because Bratton did not create either hazard and "had no authority to abate (these) hazards caused by the acts or omissions of other contractors."³ 

The Commission in this case applied its interpretation of 29 U.S.C. § 654(a) (2) (1976), as enunciated in its decisions in Anning-Johnson Co., supra, and Grossman Steel & Aluminum Corp., supra. We are obligated to treat the Commission's interpretations of OSHA with deference and will not overturn those interpretations where they are reasonable and consistent with the purposes of OSHA.⁴  See Marshall v. Knutson Construction Co., 566 F.2d 596, 600 (8th Cir. 1977).

We have already approved the Commission's application of its rule in Anning-Johnson and Grossman Steel to a general contractor on a multiemployer construction site. See Marshall v. Knutson Construction Co., supra.⁵  Here, we deal with the complementary situation of a subcontractor whose employees were exposed to hazards created or controlled by the general contractor.

Bratton attacks the substance of the Anning-Johnson/Grossman rule as inconsistent with the holding of the Seventh Circuit in Anning-Johnson Co. v. OS&HRC, supra.⁶  Bratton also relies on the dissent of Commissioner Moran in Grossman Steel, which argues that to hold a subcontractor liable for safety violations caused by another employer will cause confusion as to who must abate a violation and will jeopardize the employer's right to know what is expected under OSHA. Grossman Steel & Aluminum Corp., supra, (1975-1976) CCH OSHD at 24,793. See Anning-Johnson Co. v. OS&HRC, supra, 516 F.2d at 1089. In addition, Bratton argues that the Commissioner's rule improperly allocates to the subcontractor the burden of proof as to whether it caused the violation and whether it took reasonable measures to protect its employees.

Regarding the allocation of burdens of proof, the Commission stated in Anning-Johnson :

We find that an employer has greater access to proof of facts with regard to * * * whether it created or controlled a particular hazard or whether it had or would reasonably be expected to have notice of a particular hazard. Under such circumstances, it is only reasonable to place the burden of proving such issues on the employer. (Anning-Johnson Co., (1975-1976) CCH OSHD at 24,783 n. 14.)

In Grossman Steel, the Commission further stated:

(T)he knowledge of what steps an employer has taken to have a violation corrected by another contractor or to protect its own employees is peculiarily within the knowledge of that employer * * * . Accordingly, it is appropriate to consider this issue to be an affirmative defense, and to place the burden of proof on the employer asserting the defense. (Grossman Steel & Aluminum Corp., (1975-1976) CCH OSHD at 24,792.)

We think the Commission's allocation of the burden of proof on these issues is reasonable and consistent with the purposes of OSHA. See Central of Georgia R. Co. v. OS&HRC, 576 F.2d 620, 624 (5th Cir. 1978).

The duty of an employer to protect its employees from hazards created by others did not originate with Anning-Johnson and Grossman Steel. Prior Commission decisions interpreting 29 U.S.C. § 654(a) (2) held an employer liable whenever its employees were exposed to any violation of safety regulations, regardless of who caused the violation. See, e. g., Robert E. Lee Plumbers, Inc., 17 OSAHRC 639, 3 BNA OSHC 1150, CCH ESHG P 19,594 (1975); R.H. Bishop Co., 8 OSAHRC 930 (1974).

In Anning-Johnson Co. v. OS&HRC, supra, the Seventh Circuit deemed this "strict liability" approach as inconsistent with the purposes of OSHA when applied to nonserious violations over which the cited employer had no control. The Commission in Anning-Johnson and Grossman Steel agreed with the Seventh Circuit's rejection of strict liability, but it went beyond that holding by requiring a noncontrolling employer to "take reasonable steps to protect its employees against known hazards which the employer can reasonably be expected to detect." Grossman Steel & Aluminum Corp., supra, (1975-1976) CCH OSHD at 24,791-24,792. See Anning-Johnson Co., supra, (1975-1976) CCH OSHD at 24,784. The Commission explained the reason for this rule as follows:

(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 the 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. (Grossman Steel & Aluminum Corp., (1975-1976) CCH OSHD P 20,691 at 24,791.)

Under the record in this case, we cannot say that the Commission's construction of 29 U.S.C. § 654(a) (2), as applied to a subcontractor on a multiemployer worksite, is unreasonable or inconsistent with the purposes of OSHA. We therefore apply that construction of the Act in this case.⁷  See Marshall v. Knutson Construction Co., 566 F.2d 596, 600 (8th Cir. 1977).

The evidence establishing Bratton's liability for the handrail and unfilled landing violations under the Anning-Johnson/Grossman rule is uncontradicted. The Commission correctly concluded that Bratton did not establish a defense as to either violation.

Accordingly, we affirm the Commission's order.