OSHRC Docket No. 78-4850

Occupational Safety and Health Review Commission

November 18, 1981


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


Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

Richard W. Benka, for the employer




A decision of Administrative Law Judge Richard DeBenedetto, which vacated an item of a citation alleging that Respondent, General Dynamics Corporation, failed to comply with 29 C.F.R. 1910.132(a), is before the Review Commission for review under 29 U.S.C. 661(i). The judge ruled that the "use" requirement of the standard is invalid and that the standard imposes no duty on an employer to provide protective equipment.

After the judge's decision was directed for review, the Commission held that it would not invalidate the cited standard on the ground advanced here. General Motors Corp., 81 OSAHRC 13/C10, 9 BNA OSHC 1331, 1981 CCH OSHD P25,202 (No. 79-4478, 1981). Accordingly, the judge's decision must be reversed.

The Secretary has filed a letter relying on the General Motors decision, requesting a remand for a hearing on whether protective equipment was used, and stating that the Commission need not reach the issue of whether the standard requires employers to provide [*2] protective equipment. Inasmuch as the Secretary intends to proceed to hearing solely on the "use" issue, and no longer intends to pursue the allegation that General Dynamics failed to provide protective equipment, it is unnecessary to address whether the judge erred in concluding that the standard does not require the employer to provide personal protective equipment. Accordingly, the case is remanded for further proceedings on whether General Dynamics failed to comply with the "use" requirement of 29 C.F.R. 1910. 132(a). See S & S Diving, 80 OSAHRC 85/D3, 8 BNA OSHC 2041, 2042, 1980 CCH OSHD P24,742, p. 30,464 (No. 77-4234, 1980) (abandonment).