HAYSITE DIVISION OF SYNTHANE-TAYLOR CORPORATION

OSHRC Docket No. 79-407

Occupational Safety and Health Review Commission

September 2, 1981

COUNSEL:

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Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Edward W. Goebel, Jr., for the employer

OPINION:

ORDER

This case is before the Commission on remand from the United States Court of Appeals for the Third Circuit.   Marshall v. Haysite, Division of Synthane Taylor Corp., No. 80-1800 (3d Cir. Nov. 17, 1980).

Respondent in this case contested one item of a nonserious citation alleging a violation of 29 C.F.R. §   1910.132(a) for failure of its employees to use protective footwear.   At the conclusion of the Secretary's presentation of his case at the hearing, Respondent moved for Involuntary Dismissal under Federal Rule of Civil Procedure 41(b). n1 Judge William E. Brennan granted this motion.   The judge concluded that the Secretary had failed to establish that the employer's conduct was contrary to industry custom and practice and that the employer had actual knowledge of a specific hazard.   The judge's decision became a final order of the Commission when no Commission member directed that it be reviewed.   See 29 U.S.C. §   661(i).

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n1 The Federal Rules of Civil Procedure are applicable to Commission proceedings unless the Commission has adopted a different rule.   29 U.S.C. §   661(f); 29 C.F.R. §   2200.2(b).

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The Third Circuit reversed the judge's decision and remanded the case to the Commission.   The court, relying on its decision in Voegele Company, Inc. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980), held that the judge applied an improper test for recognition of a hazard under section 1910.132(a).   The court concluded that the appropriate test was whether a reasonable person, familiar with the circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard in not requiring use of protective equipment.

Accordingly, to effectuate the court's order, we remand this case to Judge William E. Brennan to conduct further proceedings.

SO ORDERED.