POWER PLANT DIVISION, BROWN & ROOT, INC.

OSHRC Docket No. 76-583

Occupational Safety and Health Review Commission

August 20, 1979

COUNSEL:

[*1]

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Joe M. Stevens, Jr., for the employer

OPINION:

ORDER

This case was remanded to the Commission by the United States Court of Appeals for the Fifth Circuit; Power Plant Division, Brown & Root, Inc. v. OSAHRC and Marshall, 590 F.2d 1363 (5th Cir. 1979). In the opinion of the court, an employer can "be deemed to have notice of his duties under 29 CFR 1926.28(a) only when it is demonstrated that a reasonable employer in his industry would have recognized the same conditions as a hazard requiring the use of safety equipment. . . ." Therefore, "to support a violation of 29 CFR 1926.28(a) . . . the Secretary must show that a reasonable roofing-industry employer would have provided some anchoring point for employees to tie off safety belts where B & R did not." 590 F.2d at 1365.

In accordance with that remand, the case is further remanded to the judge, for the taking of additional evidence as to practices in the industry and for further fact finding proceedings to determine whether "a reasonably prudent employer in the roofing industry would have understood that a tie off for safety belts was imperative [*2] under the cited conditions."

CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

Following judicial review under section 11(a) of the Act, 29 U.S.C. 660(a), the decision of the reviewing court is the law of the case. See Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306 (1948); Frank Irey, Jr., Inc., 77 OSAHRC 192/F11, 5 BNA OSHC 2031, 1977-78 CCH OSHD P22,283 (No. 701, 1977). On this exclusive authority, I concur in the Commission remand of this case to the administrative law judge.