OSHRC Docket No. 13375

Occupational Safety and Health Review Commission

October 17, 1977


Before CLEARY, Chairman; and BARNAKO, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Ronald C. Henson, for the employer




BARNAKO, Commissioner:

A decision of Administrative Law Judge John S. Patton is before this Commission for review pursuant to 29 U.S.C. 661(i).   The Judge affirmed a citation alleging that the Respondent (Capitol/Atlanta) violated 29 C.F.R. 1926.28(a) n1 by failing to protect its employees against a fall hazard. He assessed a penalty of $500.   The issue is whether the violation as found by the Judge was within the allegations of the citation. n2 We affirm the Judge's finding of a violation but reduce the penalty to $200.

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n1 This standard provides:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

n2 Neither party petitioned for review of the Judge's decision.   Former Commissioner Moran corrected that the Judge's decision be reviewed, but did not specify any particular issue(s) for adjudication.   Capitol/Atlanta filed a brief in response to the direction for review, arguing that the proof did not conform to the pleadings.   Pursuant to the Policy Statement at 41 Fed. Reg. 53015 (Dec. 3, 1976), the Commission will decide the issue thus raised.


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While Capitol/Atlanta was constructing a building in Cartersville, Georgia, an OSHA compliance officer observed two employees sitting on steel purlins 25 to 45 feet above a concrete floor.   The employees were installing channeling to which metal roofing panels were to be attached.   They were not wearing safety belts, and no other form of fall protection was provided.   After the compliance officer told Capitol/Atlanta's foreman that this situation violated OSHA standards, the employees obtained safety belts and tied them off to a lifeline while completing the installation of the channeling.

Capitol/Atlanta does not dispute that its failure to provide the employees with fall protection while they were installing channeling violated the cited standard.   It contends, however, that such a violation is outside the scope of the citation, which alleged that Capitol/Atlanta violated the standard "in that employees were installing prefabricated metal panels on structural steel with no protection against falls." Respondent contends that different types of fall protection are appropriate for employees installing [*3]   channeling as compared to those installing metal panels.   It argues that its procedures for installing panels complied with OSHA standards, and that it will be prevented from litigating that issue if a violation is found with respect to the employees installing channeling.

In the circumstances we must reject the argument that a violation as to the channeling is outside the scope of the citation.   The argument is one of whether Capitol/Atlanta had notice of the issue for trial.   See National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973). Clearly, Capitol/Atlanta knew the issue for trial was whether it violated the cited standard because its employees while installing channeling were not protected from falls through the use of safety belts. Capitol/Atlanta's supervisors observed the violative circumstances and immediately corrected the situation.   Counsel stipulated to the facts, and the record is replete with statements indicating counsel was fully apprised as to the issue in controversy.

As for the concern that a decision herein will preclude future litigation on the issue of whether the cited standard requires the use of safety belts for panel installation [*4]   we need only say that if the facts are different then the doctrines of stare decisis or collateral estoppel do not apply.   See Commissioner v. Sunnen, 333 U.S. 591 (1948).

We conclude, however, that the Judge's penalty assessment is too high.   Capitol/Atlanta is a small employer with no prior history of violations.   It showed good faith by immediately correcting the violation.   A penalty of $200 is appropriate.

Accordingly, the Judge's decision is modified to assess a penalty of $200 and, as so modified, is affirmed.