OSHRC Docket No. 80-7335


Before:  ROWLAND, Chairman; CLEARY and BUCKLEY,[[*]] Commissioners.


Following a September 1980 inspection, the Secretary cited Novak and Company for several alleged violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678.  Administrative Law Judge Seymour Fier affirmed four items of a serious citation and imposed a $100 penalty for each violation.  The Commission granted Novak's petition for review of the judge's decision.

The questions before the Commission are whether the facts support these violations and whether Novak took adequate alternative measures to protect its employees.   For the following reasons, we reverse Judge Fier and vacate the citation items.

Novak was a plumbing subcontractor at a multi-employer construction site where the New York City Board of Education was the supervisory authority.  The Board acted as construction manager for the project and monitored the site through a number of supervisors including a safety supervisor.  The standard practice at the worksite was that if a safety problem arose, the individual contractors would mention the problem to the Board supervisors at weekly safety meetings and the Board would contact the responsible contractor.

A series of shanties ran along the north side of the construction site.   There was no overhead protection anywhere along the shanty line except for directly above an entrance which employees used to enter the building under construction.   There, a twenty-foot long, seven to eight-foot wide canopy had been erected.   This canopy consisted of plywood laid on top of planking.  According to the compliance officer, this canopy did not extend out far enough nor was it made of strong enough material to protect employees entering the building.  The compliance officer referred to section 23-1.7 of the New York Industrial Code[[1]] to demonstrate that Novak knew of the need for overhead protection and that the overhead protection at the worksite was inadequate since the planking was not at least two inches thick.  Because the Secretary believed that Novak employees were exposed to materials falling from the structure, the Secretary cited Novak for violating section 5(a)(1) of the Act.[[2]]

Later in the inspection the compliance officer noted that oxygen and acetylene cylinders were left along the shanty line.  None of the cylinders had protective caps.  The cylinders were not in a proper secured, upright position, and the oxygen cylinders had not been properly separated from the acetylene cylinders.   The cylinders were not used by Novak, but belonged to another contractor and had just arrived at the worksite the previous day.  Novak presented testimony that the other contractor had temporarily placed the cylinders against the shanty and that they were going to be moved inside the building for use.  Because of the possibility of leakage from the cylinders and a fire resulting from the leaks, the Secretary cited Novak for violating 29 C.F.R. 1926.350(a)(1), (a)(9) and (j).[[3]]

The compliance officer noted that none of the several levels of the structure had standard perimeter guards.  The officer observed a Novak employee installing brackets on the second floor within twenty feet of the floor's edge.  Other brackets had been installed as close as eight feet from the edge.  Because of the lack of proper perimeter guards, the Secretary cited Novak for violating 29 C.F.R. 1926.500(d)(1).[[4]]

Finally, a floor opening on the first floor was not protected by a standard railing or cover.  The Secretary cited Novak for violating 29 C.F.R. 1926.500(b)(1).[[5]]

The Secretary claimed that the overhead protection at the worksite was inadequate because the canopy did not extend out far enough and because the canopy was not built of materials that were sufficiently thick.  With respect to the first point, the compliance officer offered no basis for his opinion that the eight-foot extension of the canopy was inadequate, nor did he state how far out from the building the canopy should have extended.  We have previously noted, in an identical situation, that the Secretary cannot establish a violation of section 5(a)(1) by asserting that an employer's safety precautions are inadequate, but must specify the steps the employer should have taken and demonstrate the feasibility and likely utility of those steps.  Ronsco Construction Co., 82 OSAHRC 23/F1, 10 BNA OSHC 1576, 1982 CCH OSHD 26,023 (No. 79-3153, 1982).  Accordingly, the unsupported assertion that the canopy did not extend far enough out from the structure cannot support the finding of a violation.

The Secretary also failed to prove a violation on the basis that the canopy was not sufficiently thick.  The compliance officer relied upon a section of the New York Industrial Code as the basis for his assertion that the overhead protection at the worksite was inadequate.  The relevant provision of the Code states, "Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength."  (emphasis added)  This language indicates that there is more than one way in which to satisfy the provisions of the Code.  The compliance officer merely assumed that because the overhead protection did not consist exactly of two-inch thick planks as described in the Code it was inadequate.  The Secretary never demonstrated that the type of construction provided was not of equivalent strength, nor did he show that it otherwise was insufficient to protect the employees using the entrance.  Thus, the Secretary did not establish that the overhead protection posed any hazard to the Novak employees.

With respect to the perimeter guarding and the open floor hole, Novak is an employer at a multi-employer worksite who is a plumbing subcontractor that could not have erected the wooden guards necessary to make conditions at the worksite conform with OSHA standards.  The Commission has long held that if a hazard remains unabated, the employer who does not create or control the hazard will be relieved of any responsibility for violating the standard if it can establish that it used reasonable alternative means to protect its employees or had no actual or constructive knowledge that the condition was hazardous.  Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD 20,691 (No. 12,775, 1975); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD 20,690 (Nos. 3694 and 4409, 1975).   Whether the alternative methods of protection taken by the noncontrolling employer are sufficient to establish an affirmative defense is decided on a case-by-case basis and will depend on the circumstances at the workplace.  J.H. McKay Elec. Co., 78 OSAHRC 77/B10, 6 BNA OSHC 1947, 1978 CCH OSHD 23,026 (No. 16110, 1978).

Novak specifically complained to the Board of Education at weekly safety meetings about the lack of perimeter and floor hole guards at the site and wrote a series of letters to the Board around the time of the inspection to formally complain about the hazards. Novak also complained directly to the contractor that had the responsibility for erecting guardrails, and gave its employees instructions on how to avoid the various hazards.

We believe that the steps taken by Novak were reasonable alternative means to protect its employees.  See Electric Smith, Inc. v. Secretary of Labor, 666 F.2d 1267 (9th Cir. 1982); Dutchess Mechanical Corp., 78 OSAHRC 59/B14, 6 BNA OSHC 1795, 1978 CCH OSHD 22,876 (No. 16256, 1978).  Novak's complaints were successful in getting the overhead canopy erected.  But, for the most part, the Board of Education was not responsive.  When the Board did not respond, Novak instructed its employees to stay away from the hazards.  It is difficult to imagine what more a conscientious subcontractor could have done, short of the unrealistic step of walking off the job.  Therefore, under the circumstances of this case, we find that Novak took reasonable alternative steps to protect its employees.  Novak demonstrated that it was concerned with the safety of its employees.  The citations under sections 1926.500(b)(1) and (d)(1) are vacated.[[6]]

The compressed gas cylinder violations were also neither created nor controlled by Novak.  There is no indication that Novak complained about the cylinders, but in view of the fact that the cylinders had been on the worksite for only one day, the violative conditions were of such short duration, and the hazards were not under Novak's control nor within its area of expertise, it would be unrealistic to expect Novak to have lodged a complaint or taken other alternative measures to protect its employees.  Under these circumstances, we conclude that Novak should not be held responsible for the section 1926.350 violations.

Accordingly, Judge Fier's decision is set aside and the citations are vacated.



DATED:  JAN 13 1984

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[[*]] Commissioner Buckley took no part in the decision of this case.   Although a new Commissioner possesses the legal authority to participate in pending cases, participation is discretionary and is not required for the agency to take official action.  Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1611, 1978 CCH OSHD 22,772 at p. 27,494 (No. 13029, 1978) (Commissioner Cottine's separate opinion).   See 12(f) of the Act, 29 U.S.C. 661(e).  Chairman Rowland and Commissioner Cleary reached agreement on the disposition of this case prior to the assumption of office of Commissioner Buckley.  Participation by Commissioner Buckley would therefore have no effect on the outcome of the case and would delay the issuance of the decision. Accordingly, in the interests of efficient decision-making, Commissioner Buckley elects not to participate in this case.

[[1]] Section 23-1.7 of the New York Industrial Code provides,

23-1.7  Protection from general hazards.  (a) Overhead hazards.   (1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection.   Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength.  Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.

[[2]] Section 5(a)(1), 29 U.S.C. 654(a)(1), provides:

Sec. 5(a) Each employer--
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

[[3]] The pertinent portions of Title 29 provide:

1926.350 Gas welding and cutting.
(a) Transporting, moving, and storing compressed gas cylinders.  (1) Valve protection caps shall be in place and secured.
* * *
(9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.
* * *
(j) Additional rules.  For additional details not covered in this subpart, applicable technical portions of American National Standards Institute, Z49.1-1967, Safety in Welding and Cutting, shall apply.

Section of this ANSI standard requires that "Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least 1/2 hour.

[[4]] 29 C.F.R. 1926.500(d)(1) provides,

(d) Guarding of open-sided floors, platforms, and runways.
* * *
(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.  The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

[[5]] 29 C.F.R. 1926.500(b)(1) provides,

Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section.  In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

[[6]] Chairman Rowland agrees that Novak has established that it took reasonable alternative steps to protect its employees and the citations concerning perimeter and floor hole guards should be vacated.  It is therefore unnecessary for him to decide in this case whether, in the absence of such steps, a subcontractor on a multi-employer worksite should be held liable for violation it neither creates nor controls.