1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.


NORANDA ALUMINUM, INC.


GENERAL MOTORS CORP., GM ASSEMBLY DIV.


ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.


CLEMENT FOOD COMPANY


MILLCON CORPORATION


FWA DRILLING COMPANY, INC.


CCI, INC.


GENERAL ELECTRIC COMPANY


CONSOLIDATED ALUMINUM CORPORATION


THE BRONZE CRAFT CORPORATION


CARGILL, INC.


CHAPMAN CONSTRUCTION CO., INC.


GALLO MECHANICAL CONTRACTORS, INC.


SPECIAL METALS CORPORATION


WILLAMETTE IRON AND STEEL COMPANY


NASHUA CORPORATION


WESTINGHOUSE ELECTRIC CORPORATION


RESEARCH-COTTRELL, INC.


ROCKWELL INTERNATIONAL CORPORATION


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


BUNKOFF CONSTRUCTION CO., INC.


GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION


HARRIS BROTHERS ROOFING CO.


GENERAL DIVERS COMPANY


ORMET CORPORATION


R. ZOPPO CO., INC.


COEUR D'ALENE TRIBAL FARM


L. A. DREYFUS COMPANY


CMH COMPANY, INC.


BENTON FOUNDRY, INC.


MICHAEL CONSTRUCTION CO., INC.


WHIRLPOOL CORPORATION


BROWN & ROOT, POWER PLANT DIVISION


MARION POWER SHOVEL CO., INC.


ERSKINE-FRASER CO.


MORRISON-KNUDSEN AND ASSOCIATES


THE BOAM COMPANY


DIC-UNDERHILL, a Joint Venture


C. R. BURNETT AND SONS, INC.; HARLLEE FARMS


STRIPE-A-ZONE, INC.


FORTE BROTHERS, INC.


RAYBESTOS FRICTION MATERIALS COMPANY


TEXLAND DRILLING CORPORATION


THE ANACONDA COMPANY, WIRE AND CABLE DIVISION


SAM HALL & SONS, INC.


VAMPCO METAL PRODUCTS, INC.


LEONE INDUSTRIES, INC.


ASARCO, INC.


DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY


PLUM CREEK LUMBER COMPANY


PLUM CREEK LUMBER COMPANY


STEARNS-ROGER, INC.


FERRO CORPORATION, (ELECTRO DIVISION)


AMERICAN PACKAGE COMPANY, INC.


BROWN & ROOT, INC., POWER PLANT DIVISION


FLEETWOOD HOMES OF TEXAS, INC.


DONALD HARRIS, INC.


A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.


ELECTRICAL CONSTRUCTORS OF AMERICA, INC.


DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)


ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY


NAVAJO FOREST PRODUCTS INDUSTRIES


METROPAK CONTAINERS CORPORATION


AUSTIN BUILDING COMPANY


BABCOCK AND WILCOX COMPANY


DARRAGH COMPANY


BABCOCK & WILCOX COMPANY


OTIS ELEVATOR COMPANY


R. ZOPPO COMPANY, INC.


LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS


PENNSYLVANIA POWER & LIGHT CO.


HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY


NORTHWEST AIRLINES, INC.


INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.


GENERAL MOTORS CORPORATION, INLAND DIVISION


WELDSHIP CORPORATION


S & S DIVING COMPANY


SNIDER INDUSTRIES, INC.


NATIONAL STEEL AND SHIPBUILDING COMPANY


MAXWELL WIREBOUND BOX CO., INC.


CONTINENTAL GRAIN COMPANY


MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY


CAPITAL CITY EXCAVATING CO., INC.


GAF CORPORATION


PPG INDUSTRIES (CARIBE) a Corporation


DRUTH PACKAGING CORPORATION


SOUTHWESTERN ELECTRIC POWER COMPANY


TUNNEL ELECTRIC CONSTRUCTION CO.


WEATHERBY ENGINEERING COMPANY


JOHNSON STEEL & WIRE CO., INC.


AUSTIN ROAD CO.


MAYHEW STEEL PRODUCTS, INC.


LADISH CO., TRI-CLOVER DIVISION, a Corporation


PULLMAN POWER PRODUCTS, INC.


NATIONAL ROOFING CORPORATION


OSCO INDUSTRIES, INC.


HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY


S.J. GROVES AND SONS COMPANY


CAR AND TRUCK DOCTOR, INC.


PRESTRESSED SYSTEMS, INC.


TEXACO, INC.


GEORGIA HIGHWAY EXPRESS, INC.


RED LOBSTER INNS OF AMERICA, INC.


SUNRISE PLASTERING CORP.


STONE & WEBSTER ENGINEERING CORPORATION


H.B. ZACHRY COMPANY (INTERNATIONAL)


NATIONAL INDUSTRIAL CONSTRUCTORS, INC.


BUSHWICK COMMISSION COMPANY, INC.


CIRCLE T DRILLING CO., INC.


J.L. FOTI CONSTRUCTION COMPANY, INC.


TEXACO, INC.


KENNETH P. THOMPSON CO., INC.


HENRY C. BECK COMPANY


HEATH & STICH, INC.


FARMERS EXPORT COMPANY


FOSTER AND KLEISER


TURNER WELDING & ERECTION CO., INC.


TRI-CITY CONSTRUCTION CO.


THE DURIRON COMPANY, INC.


SAMSON PAPER BAG CO., INC.


MEL JARVIS CONSTRUCTION COMPANY, Inc.


MIDWEST STEEL ERECTION, INC.


GEISLER GANZ CORPORATION


NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY


NATIONAL MANUFACTURING COMPANY


WALLACE ROOFING COMPANY


REYNOLDS METALS COMPANY, INC.


UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.


SUFFOLK COUNTY CONTRACTORS, INC.


NORANDA ALUMINUM, INC.


ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC.


GENERAL ELECTRIC COMPANY


SERVICE SPECIALTY, INC.


ECCO HIGH FREQUENCY ELECTRIC CORP.


HENRY C. BECK COMPANY


REPUBLIC ROOFING CORPORATION


EASLEY ROOFING & SHEET METAL CO., INC.

OSHRC Docket No. 76-1930

Occupational Safety and Health Review Commission

May 21, 1980

[*1]

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.

[*4]

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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.