Electric Smith, Inc. v. Secretary of Labor

Petitioner Electric Smith, Inc., was cited for four violations of Occupational Safety and Health Act regulations on a multi-employer construction site. Its sole claim for petition is that the Occupational Safety and Health Review Commission (hereinafter the Commission or OSHRC) erred in refusing to relieve it of responsibility for the violations under the Commission decisions governing the duties of a “noncreating and noncontrolling” subcontractor which did not create or have control over hazardous conditions at a multi-employer construction site. According to what has become known as the Anning-Johnson/Grossman rule, the Commission requires a subcontractor in Petitioner’s position to show that it has protected its own employees by “realistic measures taken as an alternative to literal compliance with the applicable standard,” i.e. “those measures that would be taken by a reasonable employer seeking to protect his employees and faced with the same conditions.” Anning-Johnson Co., BNA 4 OSHC 1193, 1975-76 CCH OSHD ¶ 20690 , at 24,784 n.16 (No. 4409, 1976); Grossman Steel & Aluminum Corp., BNA 4 OSHC 1185, 1975-76 CCH OSHD ¶ 20691 , at 24,791 (No. 12775, 1976). We reverse,…