PRESTRESSED SYSTEMS, INC.

OSHRC Docket No. 76-4278

Occupational Safety and Health Review Commission

June 29, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY AND COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

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

Clair W. Langmaid, Gable Industries, for the employer

Mr. Elliott Goldstein, Safety Director, Prestressed Systems, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge James D. Burroughs has been directed for review under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678. Relying on Frank Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD P21,162 (No. 7792, 1976), Judge Burroughs found that a violation had not been proved because the use of safety belts had not been shown to be feasible. After the judge's decision was issued, the Commission overruled Frank Briscoe in S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), rev'd, 659 F.2d 1273 (5th Cir. 1981). Accordingly, this case is remanded for further proceedings in light of that case.

SO ORDERED.

DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

Judge Burroughs' decision was correct and should be affirmed [*2] for the reasons he gave. I would adhere to the test set forth in Frank Briscoe and require the Secretary of Labor to prove the feasibility and likely utility of the personal protective equipment that should have been used.

Since section 1926.28(a) does not prescribe objective criteria for determining the employer's duty, the Secretary must prove that the use of safety belts was feasible. See H.E. Wiese, Inc., 82 OSAHRC    , 10 BNA OSHC 1499, 1511 n.15, 1982 CCH OSHD P25,985, p. 32,619 n.15 (No. 78-204, 1982) (Chairman Rowland, dissenting in part); and Bethlehem Steel Corp., 82 OSAHRC    , 10 BNA OSHC 1607, 1611 n.4, 1982 CCH OSHD P26,043, p. 32,704 n.4 (No. 77-1545, 1982) (Chairman Rowland, concurring) (section 1910.132(a)). I would vacate the citation because the record does not show that safety belts were feasible. n1

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n1 I express no view here on the correctness of the Commission's reasonable person test in S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), rev'd, 659 F.2d 1273 (5th Cir. 1981).

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