“SECRETARY OF LABOR,Complainant,v.NOVAK & CO. INC.,Respondent.OSHRC Docket No. 80-7335_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY,[[*]] Commissioners.BY THE COMMISSION:Following a September 1980 inspection, the Secretary cited Novak andCompany for several alleged violations of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678. Administrative Law JudgeSeymour Fier affirmed four items of a serious citation and imposed a$100 penalty for each violation. The Commission granted Novak’spetition for review of the judge’s decision.The questions before the Commission are whether the facts support theseviolations and whether Novak took adequate alternative measures toprotect its employees. For the following reasons, we reverse JudgeFier and vacate the citation items.INovak was a plumbing subcontractor at a multi-employer construction sitewhere the New York City Board of Education was the supervisoryauthority. The Board acted as construction manager for the project andmonitored the site through a number of supervisors including a safetysupervisor. The standard practice at the worksite was that if a safetyproblem arose, the individual contractors would mention the problem tothe Board supervisors at weekly safety meetings and the Board wouldcontact 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 exceptfor directly above an entrance which employees used to enter thebuilding under construction. There, a twenty-foot long, seven toeight-foot wide canopy had been erected. This canopy consisted ofplywood laid on top of planking. According to the compliance officer,this canopy did not extend out far enough nor was it made of strongenough material to protect employees entering the building. Thecompliance officer referred to section 23-1.7 of the New York IndustrialCode[[1]] to demonstrate that Novak knew of the need for overheadprotection and that the overhead protection at the worksite wasinadequate since the planking was not at least two inches thick. Because the Secretary believed that Novak employees were exposed tomaterials falling from the structure, the Secretary cited Novak forviolating section 5(a)(1) of the Act.[[2]]Later in the inspection the compliance officer noted that oxygen andacetylene cylinders were left along the shanty line. None of thecylinders had protective caps. The cylinders were not in a propersecured, upright position, and the oxygen cylinders had not beenproperly separated from the acetylene cylinders. The cylinders werenot used by Novak, but belonged to another contractor and had justarrived at the worksite the previous day. Novak presented testimonythat the other contractor had temporarily placed the cylinders againstthe shanty and that they were going to be moved inside the building foruse. Because of the possibility of leakage from the cylinders and afire resulting from the leaks, the Secretary cited Novak for violating29 C.F.R. ?? 1926.350(a)(1), (a)(9) and (j).[[3]]The compliance officer noted that none of the several levels of thestructure had standard perimeter guards. The officer observed a Novakemployee installing brackets on the second floor within twenty feet ofthe floor’s edge. Other brackets had been installed as close as eightfeet from the edge. Because of the lack of proper perimeter guards, theSecretary 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 astandard railing or cover. The Secretary cited Novak for violating 29C.F.R. ? 1926.500(b)(1).[[5]]IIThe Secretary claimed that the overhead protection at the worksite wasinadequate because the canopy did not extend out far enough and becausethe canopy was not built of materials that were sufficiently thick. With respect to the first point, the compliance officer offered no basisfor his opinion that the eight-foot extension of the canopy wasinadequate, nor did he state how far out from the building the canopyshould have extended. We have previously noted, in an identicalsituation, that the Secretary cannot establish a violation of section5(a)(1) by asserting that an employer’s safety precautions areinadequate, but must specify the steps the employer should have takenand demonstrate the feasibility and likely utility of those steps. _Ronsco Construction Co_., 82 OSAHRC 23\/F1, 10 BNA OSHC 1576, 1982 CCHOSHD ? 26,023 (No. 79-3153, 1982). Accordingly, the unsupportedassertion that the canopy did not extend far enough out from thestructure cannot support the finding of a violation.The Secretary also failed to prove a violation on the basis that thecanopy was not sufficiently thick. The compliance officer relied upon asection of the New York Industrial Code as the basis for his assertionthat the overhead protection at the worksite was inadequate. Therelevant provision of the Code states, \”Such overhead protection shallconsist of tightly laid sound planks at least two inches thick fullsize, tightly laid three-quarter inch exterior grade plywood _or othermaterial of equivalent strength_.\” (emphasis added) This languageindicates that there is more than one way in which to satisfy theprovisions of the Code. The compliance officer merely assumed thatbecause the overhead protection did not consist exactly of two-inchthick planks as described in the Code it was inadequate. The Secretarynever demonstrated that the type of construction provided was not ofequivalent strength, nor did he show that it otherwise was insufficientto protect the employees using the entrance. Thus, the Secretary didnot establish that the overhead protection posed any hazard to the Novakemployees.With respect to the perimeter guarding and the open floor hole, Novak isan employer at a multi-employer worksite who is a plumbing subcontractorthat could not have erected the wooden guards necessary to makeconditions at the worksite conform with OSHA standards. The Commissionhas long held that if a hazard remains unabated, the employer who doesnot create or control the hazard will be relieved of any responsibilityfor violating the standard if it can establish that it used reasonablealternative means to protect its employees or had no actual orconstructive knowledge that the condition was hazardous. _GrossmanSteel and_ _Aluminum Corp._, 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76CCH OSHD ? 20,691 (No. 12,775, 1975); _Anning-Johnson_ _Co_., 76 OSAHRC54\/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD ? 20,690 (Nos. 3694 and 4409,1975). Whether the alternative methods of protection taken by thenoncontrolling employer are sufficient to establish an affirmativedefense is decided on a case-by-case basis and will depend on thecircumstances at the workplace. _J.H. McKay Elec. Co_., 78 OSAHRC77\/B10, 6 BNA OSHC 1947, 1978 CCH OSHD ? 23,026 (No. 16110, 1978).Novak specifically complained to the Board of Education at weekly safetymeetings about the lack of perimeter and floor hole guards at the siteand wrote a series of letters to the Board around the time of theinspection to formally complain about the hazards. Novak also complaineddirectly to the contractor that had the responsibility for erectingguardrails, and gave its employees instructions on how to avoid thevarious hazards.We believe that the steps taken by Novak were reasonable alternativemeans to protect its employees. _See_ _Electric Smith, Inc. v_._Secretary of Labor,_ 666 F.2d 1267 (9th Cir. 1982); _DutchessMechanical Corp_., 78 OSAHRC 59\/B14, 6 BNA OSHC 1795, 1978 CCH OSHD ?22,876 (No. 16256, 1978). Novak’s complaints were successful in gettingthe overhead canopy erected. But, for the most part, the Board ofEducation was not responsive. When the Board did not respond, Novakinstructed its employees to stay away from the hazards. It is difficultto imagine what more a conscientious subcontractor could have done,short of the unrealistic step of walking off the job. Therefore, underthe circumstances of this case, we find that Novak took reasonablealternative steps to protect its employees. Novak demonstrated that itwas concerned with the safety of its employees. The citations undersections 1926.500(b)(1) and (d)(1) are vacated.[[6]]The compressed gas cylinder violations were also neither created norcontrolled by Novak. There is no indication that Novak complained aboutthe cylinders, but in view of the fact that the cylinders had been onthe worksite for only one day, the violative conditions were of suchshort duration, and the hazards were not under Novak’s control norwithin its area of expertise, it would be unrealistic to expect Novak tohave lodged a complaint or taken other alternative measures to protectits employees. Under these circumstances, we conclude that Novak shouldnot be held responsible for the section 1926.350 violations.Accordingly, Judge Fier’s decision is set aside and the citations arevacated.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JAN 13 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected]), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[*]] Commissioner Buckley took no part in the decision of this case. Although a new Commissioner possesses the legal authority to participatein pending cases, participation is discretionary and is not required forthe agency to take official action. _Perini Corp_., 78 OSAHRC 43\/C5, 6BNA OSHC 1609, 1611, 1978 CCH OSHD ? 22,772 at p. 27,494 (No. 13029,1978) (Commissioner Cottine’s separate opinion). See ? 12(f) of theAct, 29 U.S.C. ? 661(e). Chairman Rowland and Commissioner Clearyreached agreement on the disposition of this case prior to theassumption of office of Commissioner Buckley. Participation byCommissioner Buckley would therefore have no effect on the outcome ofthe case and would delay the issuance of the decision. Accordingly, inthe interests of efficient decision-making, Commissioner Buckley electsnot 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 normallyexposed to falling material or objects shall be provided with suitableoverhead protection. Such overhead protection shall consist of tightlylaid sound planks at least two inches thick full size, tightly laidthree-quarter inch exterior grade plywood or other material ofequivalent strength. Such overhead protection shall be provided with asupporting structure capable of supporting a loading of 100 pounds persquare 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 ofemployment which are free from recognized hazards that are causing orare 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 atall times except, if necessary, for short periods of time whilecylinders are actually being hoisted or carried.* * *(j) _Additional rules_. For additional details not covered in thissubpart, applicable technical portions of American National StandardsInstitute, Z49.1-1967, Safety in Welding and Cutting, shall apply.Section 3.2.4.3 of this ANSI standard requires that \”Oxygen cylinders instorage shall be separated from fuel-gas cylinders or combustiblematerials (especially oil or grease), a minimum distance of 20 feet orby a noncombustible barrier at least 5 feet high having afire-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 adjacentfloor or ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(1)(i) of this section, on allopen sides, except where there is entrance to a ramp, stairway, or fixedladder. The railing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials couldcreate a hazard.[[5]] 29 C.F.R. ? 1926.500(b)(1) provides,Floor openings shall be guarded by a standard railing and toeboards orcover, as specified in paragraph (f) of this section. In general, therailing shall be provided on all exposed sides, except at entrances tostairways.[[6]] Chairman Rowland agrees that Novak has established that it tookreasonable alternative steps to protect its employees and the citationsconcerning perimeter and floor hole guards should be vacated. It istherefore unnecessary for him to decide in this case whether, in theabsence of such steps, a subcontractor on a multi-employer worksiteshould be held liable for violation it neither creates nor controls.”