REINHARDT'S PLUMBING & HEATING, INC.

OSHRC Docket No. 13958

Occupational Safety and Health Review Commission

August 12, 1977

[*1]

Before: BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

Jesse C. Nielsen, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge John J. Morris, dated August 5, 1976, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision affirmed item 1 of a nonserious citation which alleged that the respondent violated 29 C.F.R. 1926.100(a) by failing to require its employees to wear hardhats. The respondent has petitioned for review of this ruling. n1

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n1 The Judge also affirmed items 2 and 3, the former as a de minimis violation. Since neither party has taken issue with these dispositions, the Commission will not review them. Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976). The Judge's decision with respect to items 2 and 3 is accorded the significance of an unreviewed Judge's decision. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

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The respondent's principal contentions on review are that skilled workers should be allowed to decide for themselves whether they need the protection of hardhats and that an employer who has provided his employees with hardhats should not be held responsible for their failure to wear them. The Commission rejects both contentions. As the Judge correctly noted, the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., does not make it discretionary with employees as to whether they will comply with regulations. 29 U.S.C. 654(b). Nor is an employer's duty to comply with the standard satisfied by providing his employees with hardhats and advising them of the need for their use. n2 To satisfy his obligations to comply with the standard, an employer must not only provide employees with hardhats and instruct them to use them, but also discipline employees fail to comply. International Terminal Operating Co., 77 OSAHRC 15/D12, 4 BNA OSHC 2029, 1976-77 CCH OSHD para. 21,499 (No. 13021, 1977); Atlantic & Gulf Stevedores, Inc., 75 OSAHRC 47/A2, 3 BNA OSHC 1003, 1974-75 CCH OSHD para. 19,526 (No. [*3] 2818, 1975), aff'd, 534 F.2d 541 (3d Cir. 1976). Also see Dic-Underhill, A Joint Venture, 76 OSAHRC 89/A2, 4 BNA OSHC 1489, 1976-77 CCH OSHD para. 20,918 (No. 3042, 1976). That duty clearly was not satisfied in this case. It is undisputed that the respondent's foreman told the employees that they did not have to wear the hats on the day of the inspection.

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n2 The standard, 29 C.F.R. 1926.100(a), provides that: Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

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The respondent also challenges the Judge's finding that the respondent's employees were exposed to a danger of falling objects. The respondent maintains that this finding is improper because it is based on a source of danger, a pair of pliers, that had not been perceived by the Secretary's inspector, rather than the danger that had been perceived by the inspector, an overhead heater. This argument [*4] has no merit.

Although the Judge stated at trial that he was not impressed with the amount of protection that a hardhat would provide from a large falling heater, he found that a violation was established because respondent's empoloyees had access to the zone of danger below the heater. Relying on the testimony of witnesses other than the inspector he also properly found that a worker below the heater was in danger or being struck by channel lock pliers, used to install the heater, which could have fallen on him. The evidence also establishes that other items used in the installation of the heater, such as pipe, nuts, and bolts could have fallen on this worker. Both the citation and complaint allege that the violation resulted from a failure to protect employees from "falling objects." The standard also requires protection from "falling objects." Therefore, the evidence of endangerment from the pliers, pipe, nuts, and bolts also establishes the violation.

Accordingly, the Judge's decision is affirmed.