SECRETARY OF LABOR,
Complainant,

v.

HEATON ERECTING, INC.
Respondent.

OSHRC Docket No. 84-0452

DECISION

Before:  BUCKLEY, Chairman; RADER and WALL, Commissioners.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. § 659(c).

The issue before the Commission is whether Administrative Law Judge Joe D. Sparks erred in vacating a citation item alleging a violation of 29 C.F.R. § 1926.451(e)(10).  The standard states in part:

§ 1926.451 Scaffolding

(e) Manually propelled mobile scaffolds.

(10) Guardrails made of lumber, not less than 2 x 4 inches (or other material providing equivalent protection), approximately 42 inches high, with a midrail, of 1 x 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffold more than 10 feet above the ground or floor.
* * *

The Secretary maintained that the standard was violated because the distance from the unguarded scaffold to the ground was over 40 feet.  Based on the Commission's decision in Schwarz-Jordan, Inc., 11 OSAHRC 37/A2, 11 BNA OSHC 2145, 1984 CCH OSHD ¶ 26,989, rev'd, 777 F.2d 195 (5th Cir. 1985),[[1]] the judge vacated the item, noting that the scaffold stood only 50-70 inches above its base and that the standard requires guardrails only when the scaffold stands more than 10 feet above its base.

Because the judge held the standard to have been inapplicable, he did not make findings on a dispute over the infeasibility of guardrails that was litigated by the parties.  Since the judge issued his decision, the Commission has substantially altered the requirements of the former defense of impossibility.  In Dun-Par Engineered Form Co., No. 79-2553 (July 30, 1986), the Commission changed the primary element of the defense to "infeasibility" and shifted the burden of persuasion to the Secretary on the issue of feasible alternative protective measures.

We believe that the resolution of the factual dispute over the feasibility of guardrails would substantially facilitate our review of this case.  We note, however, that disposition of this issue may require credibility determinations, which should be resolved by the judge.  Moreover, because the parties were not aware of their respective burdens of proof at the time of the hearing, they should have the opportunity to adduce additional evidence and argument on the infeasibility defense.  We therefore remand this case to Judge Sparks for the taking of evidence and argument on the infeasibility defense.  The judge shall also enter findings of fact and conclusions of law consistent with our decision in Dun-Par on the issue.  The Commission shall retain jurisdiction of the case pending receipt of these additions to the record.

Accordingly, the case is remanded to the judge for further proceedings consistent with this decision.[[2]]

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  JUL 31, 1986

The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] The Commission's decision in Schwarz-Jordan was subsequently overruled by the Fifth Circuit in Brock v. Schwarz-Jordan, Inc., 777 F.2d 195 (5th Cir. 1985).

[[2]] Commissioner Rader agrees with the majority that this case should be remanded for a determination whether guardrails were infeasible.  If the Secretary seeks to allege and prove that Heaton should have used alternative protective measures in accordance with the Commission decision in Dun-Par Engineered Form Co., No. 82-928, then Commissioner Rader would limit the alternative measures sought to be imposed consistent with his separate opinion in Dun-Par.