RONSCO CONSTRUCTION CO., INC.

OSHRC Docket No. 79-3153

Occupational Safety and Health Review Commission

April 21, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Francis V. LaRuffa, R.S., U.S. Department of Labor

Harvey Barrison, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The Secretary of Labor alleges that Ronsco Construction Co. ("Ronsco") violated section 5(a)(1) of the Occupational Safety and Health Act of 1970 n1 by not providing adequate overhead protection for its employees at two entrances to a building under construction. Administrative Law Judge Jerome C. Ditore affirmed the Secretary's citation and assessed a penalty of $50. We reverse the judge's decision and vacate the citation.

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n1 29 U.S.C. 651-678. 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 of serious physical harm to his employees;

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Ronsco was a subcontractor for the construction of a reinforced concrete [*2] hotel building in New York City. Its responsibilities included the installation of temporary safety protection, hollow metal doors and frames, and finished hardware. Pursuant to its contract, Ronsco constructed structures at each of the two entrances to the building. The purpose of the structures was to protect employees entering and leaving the building from being struck by falling objects. The structures were eight feet high, five feet wide, and extended out from the building approximately seven feet. They were covered with tow-inch thick planks.

The structures did not cover the entire width of the entrances, and the areas to the sides of the structures were not barricaded to prevent employees from entering and leaving the building without passing through the structures. The Secretary's compliance officer, who inspected the worksite, believed that the structures were adequate to protect workers inside them from the hazard of falling objects. He observed, however, that some employees on the site entered and left the building without passing through one of the structures. He did not observe Ronsco's employees enter or leave the building. n2 Ronsco's vice-president testified [*3] that Ronsco employees were instructed to use protective devices that were provided.

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n2 At the time of the inspection, Ronsco had two employees on the site: a foreman and a helper.

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Judge Ditore concluded that the structures were inadequate because they did not cover the entire width of the entrances and the unprotected parts of the entrances were not barricaded to prevent employees from entering and leaving through those areas. The judge concluded: "Since Respondent's two employees had access to the hazard areas, they were exposed to the hazard of falling objects."

We conclude that the judge erred. Protective devices provided by an employer are not necessarily rendered inadequate simply because employees can circumvent them. The structures Ronsco erected were available for its employees' use, their purpose as protective devices was obvious, and there was no impediment to their use. There is no evidence that Ronsco's employees failed to enter and leave the building through the structures or that Ronsco had any [*4] reason to expect they would fail to do so given the evidence that Ronsco instructed its employees to use protective devices. Under the circumstances of this case, the Secretary has not proven that Ronsco failed to render its workplace free from a recognized hazard that is causing or is likely to cause death or serious harm. n3 See Grossman Steel & Aluminum Corp., 78 OSAHRC 85/A2, 6 BNA OSHC 2020, 1978 CCH OSHD P23,097 (No. 76-2834, 1978).

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n3 It is not relevant that the compliance officer observed employees of other employers enter and leave the building without passing through the structures, Under 5(a)(1), an employer is responsible only for providing its own employees with a workplace free of recognized hazards that are causing or are likely to cause death or serious harm. See Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032 (2d Cir. 1975).

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The Secretary also argued before the judge that the structures were inadequate because they did not extend sufficiently far out from the face [*5] of the building to protect employees from objects that might fall beyond the ends of the structures. However, the Secretary cannot predicate a section 5(a)(1) violation on a general assertion that an employer's safety precautions are "inadequate"; he must specify the steps the employer should have taken to avoid citation and demonstrate the feasibility and likely utility of those steps. See National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1286 (D.C. Cir. 1973); Whirlpool Corp. v. OSHRC, 645 F.2d 1096 (D.C. Cir. 1981). Because the Secretary has never specified, either in a pleading, argument, or evidence, how far from the building he believed the structures should have extended, this allegation cannot form the basis of a section 5(a)(1) violation.

Accordingly, the section 5(a)(1) citation is vacated. n4 SO ORDERED.

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n4 In other cases involving facts similar to this case, a divided Commission vacated 5(a)(1) citations on the basis that specific standards applied to the cited hazard and that 5(a)(1) was therefore inappropriately cited. John T. Brady & Co., 82 OSAHRC    , 10 BNA OSHC 1385, 1982, CCH OSHD P25,941 (No. 76-2894, 1982); A. Prokosch & Sons Sheet Metal, Inc., 81 OSAHRC 96/A2, 8 BNA OSHC 2077, 1980 CCH OSHD P24,840 (No. 76-406, 1980). That issue has not been raised in this case and, because we are vacating the citation on the merits, it is unnecessary for us to decide whether 5(a)(1) was appropriately cited.

[*6]

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