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Ch. 7 MULTI-EMPLOYER RESPONSIBILITY/DUTIES UNDER THE ACT 168

not with the exercise of reasonable diligence know of the presence of the violation. As discussed earlier, this part of the rule protects specialty subcontrators whose employees might be exposed to hazards that are only detectable by members of a special craft. For example, the Commission has held that a plumbing subcontractor was not required to test electrical receptacles for proper grounding.17 There are, however, other possible applications of this "no knowledge" part of the defense.

In New England Telephone & Telegraph Co. b. Secretary of Labor,18 the First Circuit reversed the Commission and held that the employer had established an Anning-Johnson/Grossman defense because the employer's supervisor had inspected the job site the day before the inspection and had not found a hazard. According to the court, the employer had now way of knowing that the general contractor would remove existing safety devices.

A similar result was reached by the Commission in Weisblatt Electric Co.19 In sustaining the employer's defense, the Commission held that there could be no violation where the only employees exposed were inspecting the multi-employer sites to see if unsafe conditions created by other employer's had been corrected so that the rest of the cited employer's employees could return to the worksite.

On the other hand, in Capform, Inc,20 the Anning-Johnson/Grossman defense was rejected because the employer had made no effort to find out whether the general contractor had checked the soil after a rainstorm to determine if it was safe for employees to work in a trench.

Realistic Measures

The first, and most extreme, realistic measure is the removal of all exposed employees until the hazards are corrected, Although it is possible that such measures may be necessary in limited situations, the Anning-Johnson/Grossman rule does not contemplate that withdrawal of employees will often be required.

The second realistic measure is for the employer to attempt "alternative abatement" of the hazard. A starting point would be for the employer to inform exposed employees of the presence of the hazard. Nevertheless, it is not enough for the employer simply to tell its employees to "work safely" or "avoid accidents."21 Employers must determine the hazards to which employees are exposed and take steps to eliminate them.

In Electric Smith, Inc. v. Secretary of Labor,22 the Ninth Circuit held that the question of whether a subcontractor has undertaken realistic and reasonable alternatives to compliance is a mixed question of fact and law and therefore a reviewing court is not limited to applying the substantial evidence standard.23 In reversing the ALJ's rejection of the Anning-Johnson/Grossman defense where the employer's main actions were to limit the access of its employees to the hazard, the court held that the ALJ "inappropriately deemphassize[d] the importance of good faith in assessing the reasonableness of a subcontractor's efforts."24 Moreover, the focus should be on what is reasonable, not what is possible. "[T]he proper analysis is to determine whether a reasonable employer would have done more than it did to protect its own employees, not whether more could have been done by Smith to make the site safer for all employees working there."25

The third realistic measure is for the employer to notify the employer that created the hazard, the employer that controls the hazard, or the general contractor. The Commission has held that where no means are available for the subcontractor to protect its employees from a hazard, the subcontractor must, at least, complain to the responsible contractor, regardless of whether the violation was serious or nonserious.26 Except for minor violaitons,27 however, merely complaining to the general contractor is not adequate where alternative means of protection are available.28

A general contractor's record of correcting hazards upon notification may be important in determining whether notification is a realistic measure. For example, the Commission has held that it was reasonable for the employer to rely upon the general contractor's assurances of corrective measures where three other violations had been abated immediately and the employer also instructed employees to avoid the hazard.29 The Commission has also held that a general contractor's prompt abatement of hazards after the inspection refuted the employer's argument that asking the general contractor to eliminate the hazard would have been futile.30

Construction and Beyond

Although Underhill has been extended beyond construction,31 the Commission has refused to extend Anning-Johnson/Grossman beyond construction.32 Therefore in all other industries the thoroughly discredited exposure rule still applies.33

This situation is unfortunate. Upon reading the Anning - Johnson/Grossman decisions, it would have seemed that the Commission came to the conclusion that the "exposure equals violation" rule was manifestly unjust. The problems of the construction industry are not so inherently unique that its employers should have the benefit of what now has become an exception to the general rule.

Employers covered by the Act, in all industries, can only be expected to do what is reasonable. Literal compliance in some no control-exposure situations may be impossible. Thus, it is unlikely that this decision will contribute to greater employee safety and, in fact, may have negative consequences in the long run.

Ch. 7 Prime and Subcontractors--No Control-No Exposure 169

It is clear that noncontrolling sub contractors without exposed employees cannot be found in violation. It is less clear whether noncontrolling general contractors without exposed employees may be found in violation for hazards created by subcontractors and to which only the employees of other subcontractors are exposed.

There is dictum in the Commission's decision in Anning - Johnson and in Grossman suggesting that a general contactor should be held liable for violations created by subcontractors to which only employee of subcontractors are exposed. Starting with

17. 4 G Plumbign & Heating, Inc. OSHC 1628, 1975 OSHD 22,658 (1978).

18. 589 F.2d 81 (1st. Cir. 1978).

19. 1C OSHC 1657, 1982 OSHD 25,058 (1962).

20. 13 OSHC 2218, 1989 OSHD 25,503 (1989), affirmed Ne. 39-4474 (5th Cir. 1990).

21. J.H. McKay Electric Co., 6 OSHC 1947, 1978 OSHD 23,026 (1978). See also Capform Inc., 16 OSHC 2040, 1994 OSHD 30,589 (1994) (verbal warning to stay away from hazard not sufficient because responsible employer would have done more to protect employees).

22. 558 F.2d 1287 (9ch Cir.1982).

23. Id. at 1270-71. See I 466.

24. 656 F.2d at 1278.

25. Id m.1274.

26. Mclean-Behm Steel Erectors, Inc. 5 OSHC 1712, 1975 OSHD 27,812 (1978). Accord, D. Harris Masonry Contracting, Inc. v. Dale, 876 F2d 343 (3d Cir. 1989); Havene Steal Co. v. OSHRC, 738 F.2d 397 (10th Cir.1984). See also Capform, Inc., 13 OSHC 2219, 1989 ISGD 28,505 (1989), affirmed No. 89-4474 (5th Cir. 1990).

27. See, e.g. Derr Construction Co., & OSHC 1823, 1977-78 OSHD 21,782 (1977) (a single leader include sidereails extruding more than 36 inches above the landing).

28. Mclean-Behm Steel Erectors. Ise., 6OSHC 1712, 1979 OSHD 22,912 (1976).

29. Dutchess Mechanical Corp, ISGC 1795, 1975 OSHD 200,876 (1978).

30. Masonry Contractors, Inc, OSHC 1165, 1960 OSHD 24,338 (1850).

31. Harvey Workover, Inc., 7 OSHC 1687, 1979 OSHD 23,830 (1979). Accord. Rockwell Int'l Corp., 17 OSHC 1801, 1986 OSHD 81,150 (1995).

32. Pennsylvania Truck Lines, Inc., 7OSHC 1723, 1979 OSHD 32,573 (1979).

33. 5a, e.g., California Stovedore & Ballut Co., 1 OSHC 1757, 1973-74 OSHD 17,931 (1974).