EASLEY ROOFING & SHEET METAL CO., INC.  

OSHRC Docket No. 76-1930

Occupational Safety and Health Review Commission

May 21, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

James R. Harris, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Jerry W. Mitchell is before the Commission for review pursuant to section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Mitchell found that Respondent, Easley Roofing & Sheet Metal Co., Inc., failed to comply with 29 C.F.R. §   1926.500(e)(1)(iv) in that its employees used a stairway with inadequate railings but concluded that the violation was de minimis in nature.   The judge also vacated a citation alleging that Respondent failed to comply with 29 C.F.R. §   1926.28(a) by permitting its employees to work near the edge of a roof without using personal fall protection equipment such as lifelines, lanyards, and safety belts.   Judge Mitchell held that the Secretary of Labor ("Secretary") had not met the burden of pleading and proving the feasibility of the use of personal protective equipment, citing Frank Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 [*2]   CCH OSHD P21,162 (No. 7792, 1976) ("Frank Briscoe Co.").   Because he vacated the section 1926.28(a) citation on this basis, the judge did not address other arguments made by Respondent concerning this alleged violation.

The Secretary petitioned for review of the judge's decision, arguing that the judge erred in finding the noncompliance with section 1926.500(e)(1)(iv) to be de minimis and in placing the burden of pleading and proving feasibility of personal protective equipment under section 1926.28(a) on the Secretary.   The Secretary also argued that if he did have to prove that personal protective equipment is feasible, he met that burden in this case.   Chairman Cleary granted the Secretary's petition for review.

Since the judge issued his decision, the Commission has overruled Frank Briscoe Co. to the extent it placed the burden of proving feasibility under section 1926.28(a) on the Secretary.     [*3]    Co., 80 OSAHRC    , 7 BNA OSHC 2122, 1980 CCH OSHD P24,167 (No. 76-2339, 1980); Morton Buildings, Inc., 79 OSAHRC    , 7 BNA OSHC 1702, 1979 CCH OSHD P23,861 (No. 15565, 1979).   Thus, the judge's ruling must be set aside and reconsidered under current Commission precedent.   Accordingly, the Commission will remand the case to Judge Mitchell for the judge to reconsider his decision concerning the section 1926.28(a) citation.   On remand, the judge should address both the issue directed for review and, if necessary, the other arguments raised by Respondent but not addressed in the judge's original decision. *

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* In S & H Riggers and Erectors, Inc., supra (concurring opinion), Commissioner Barnako set forth his interpretation of 29 C.F.R. §   1926.28(a) and concluded that the Secretary has the burden of proving feasibility. He thus followed the Commission's decision in Frank Briscoe Co., supra. Commissioner Barnako continues to adhere to the position set forth by him in S & H Riggers and Erectors. However, he has previously recognized that the orderly administration of the Act requires that the Commission's administrative law judges follow precedents established by the Commission.   Gulf & Western Food Products Co., 77 OSAHRC 72/A2, 4 BNA OSHC 1436 at 1439, 1976-77 CCH OSHD P20,884 at 25,067 (Nos. 6804 & 6805, 1976).   For this reason, he joins with his colleagues in their remand order.

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With regard to Judge Mitchell's disposition of the citation item alleging noncompliance with section 1926.500(e)(1)(iv), the Commission has addressed the question of the circumstances under which a violation is properly classified as de minimis on a number of occasions.   On remand, the judge should also reconsider his determination that the noncompliance with 1926.500(e)(1)(iv) is de minimis in light of the arguments of the parties and Commission precedent. E.g., Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD P23,626 (No. 13750, 1979), and cases cited therein.

Accordingly, the case is remanded to Judge Mitchell, who shall issue a new decision and order disposing of the citations alleging noncompliance with 29 C.F.R. § §   1926.28(a) and 1926.500(e)(1)(iv).   SO ORDERED.