BETHLEHEM STEEL CORPORATION

OSHRC Docket No. 79-310

Occupational Safety and Health Review Commission

March 31, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, USDOL

Murray N. Shelton, Jr., Bethlehem Steel Corp., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). A decision of Administrative Law Judge Ralph B. Maxwell is before the Commission for review under section 12(j) of the Act, 29 U.S.C. 661(i). In his decision, Judge Maxwell granted Respondent's motion to dismiss and vacated citation 2, which alleges a serious violation of the Act due to noncompliance with the general industry personal protective equipment standard at 29 C.F.R. 1910.132(a). n1 His sole reason for vacating was his conclusion that section 1910.132(a) was "inappropriate as the basis for the citation," i.e., it could not be applied, as the Secretary of Labor ("the Secretary") sought to apply it in this case, to compel the use of safety belts as protection against a falling hazard.

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n1 The standard provides:

Subpart I - Personal Protective Equipment

1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[*2]

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The Secretary filed a petition for discretionary review, and Commissioner Cottine directed review on the following issue raised in the Secretary's petition:

Whether the judge erred in vacating a citation item alleging noncompliance with 29 C.F.R. 1910.132(a) on the grounds that the cited standard does not require protective equipment where employees are exposed to falling hazards.

For the reasons stated below, Commissioner Cottine and I agree that safety belts are a form of protective equipment required under section 1910.132(a) and that falling hazards are encompassed by the language "hazards of processes or environment" within the meaning of that standard. Nevertheless, for the reasons set forth in our separate opinions, Chairman Rowland and I agree that Judge Maxwell did not err in granting Respondent's motion to dismiss. Accordingly, the judge's decision is affirmed.

I

As a result of an inspection of the mold yard in Respondent's Burns Harbor steel processing plant in Chesterton, Indiana, conducted by a compliance officer from the Occupational Safety and Health Administration ("OSHA"), the [*3] Secretary issued citation 2, which alleged, as amended, that Respondent committed a serious violation of the Act in failing to comply with section 1910.132(a) in that:

Protective equipment was not used where it was necessary by reason of hazards encountered in a manner capable of causing injury or impairment in the function of any part of the body:

Employees were required to work on top of molds and to work near open sided floors without appropriate personal protective equipment. Such work consisted of banding boxes to molds, operating a pendant controlled crane, and pouring sand in the preparation of molds, which exposed employees to falling onto cluttered flatbed rail cars and the ground level approximately twelve feet below.

This citation was based on the compliance officer's observation of two employees of Respondent working on a platform known as the "hot top station," which was approximately 12 feet above the ground. The compliance officer testified that the employees had no fall protection as they prepared large empty molds to be filled later with molten steel. The molds rested on railroad flat bed cars that brought them to and took them away from the hot top platform. [*4] During certain phases of the mold preparation process, employees were required to step over a gap from the platform onto the top of the molds, thereby assertedly exposing themselves to the danger of a 12-foot fall. The compliance officer further testified that the employees could have been protected by safety belts, attached by 6-foot lanyards to a jib mechanism or column on the platform.

Following the presentation of the Secretary's case, Respondent moved to dismiss the case on the ground that section 1910.132(a) does not require the furnishing or use of safety belts. At the close of the presentation of its case, Respondent renewed its motion. In his decision, Judge Maxwell granted Respondent's motion to dismiss. He concluded that section 1910.132(a) does not apply to safety belts because they are not "named along with the protective clothing, respiratory devices, protective shields and barriers that are mentioned." He further held that section 1910.132(a) does not apply to falling hazards. Judge Maxwell stated, "The hazard of falling is sufficiently alien to the facial thrust of the regulation, that if there had been an intention to include it, then certainly it would have [*5] been mentioned along with 'processes' hazard, 'environmental' hazard, 'chemical' hazard, 'radiological' hazard and 'mechanical' hazard." He found support for his interpretation of section 1910.132(a) in decisions by other administrative law judges who had concluded that the standard did not apply to safety belts and falling hazards, particularly noting that in John Zink Co., 79 OSAHRC 73/F10 (No. 78-1834, 1979 ALJ), the judge relied in part on evidence that the Secretary had instructed his representatives to no longer cite employers under section 1910.132(a) for failure to use safety belts.

II

The Secretary argues on review that the judge erred in interpreting the list of items in the cited standard following the phrase "protective equipment, including" as exclusive rather than illustrative. According to the Secretary, the language of the standard, when given its plain meaning, does not exclude safety belts, lifelines, and lanyards, but instead includes them because they comprise a form of "personal protective equipment," as indicated in the construction industry standard at 29 C.F.R. 1926.104. The Secretary further contends that the hazard of falling from the hot top platform [*6] onto a railway car or the concrete floor is a hazard "of processes or environment" that could result in bodily injury. In addition, he correctly notes that the decisions of administrative law judges relied upon by Judge Maxwell in his decision are not binding on the Commission. n2 The Secretary requests that the decision be remanded to the judge to resolve the remaining factual issues.

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n2 E.g., Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

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On review, Respondent urges affirmance of Judge Maxwell's decision. It states that, in determining that section 1910.132(a) is not applicable to safety belts and falling hazards, the judge relied on the well-recognized doctrine of expressio unius est exclusio alterius, i.e., express mention in a statute of one thing excludes others not expressed, which applies to section 1910.132(a) because that standard "clearly specifies various types of protective equipment and hazards but omits reference to safety belts, [*7] or to falling hazards." Arguing that this doctrine is strengthened when an item omitted in the cited standard in mentioned in another standard, Respondent lists OSHA standards explicitly requiring the use of safety belts in the ship repairing, shipbuilding, and construction industries. Respondent notes the decisions by other administrative law judges relied upon by Judge Maxwell, especially the one that relied in part on evidence of OSHA Instruction CPL 2-1.13 (April 16, 1979) in which the Secretary instructed his compliance officers to discontinue citing employers under section 1910.132(a) for failure to use safety belts and lines.

III

In Ed Cheff d/b/a Ed Cheff Logging, 81 OSAHRC 60/A2, 9 BNA OSHC 1883, 1981 CCH OSHD P25,431 (No. 77-2778, 1981), appeal filed, No. 81-7493 (9th Cir. July 27, 1981), the employer argued that 29 C.F.R. 1910.132(a) does not require the use of seat belts to protect tractor operators from being crushed if the vehicle rolls over. The Commission held that, under the standard, the broad phrase "hazards of processes or environment" includes a rollover hazard created by operation of tracked logging vehicles over uneven terrain. Furthermore, the [*8] Commission concluded that seat belts, the suggested protective equipment, can be required under section 1910.132(a) because the use of the term "including" in the standard indicates that the enumerated types of protective equipment are merely illustrative rather than limitations on the scope of the standard. In addition, the Commission found no indication that the drafters of the standard otherwise intended to exclude the use of seat belts from the standard's requirements. Similarly, in United Geophysical Corp., 81 OSAHRC 77/D6, 9 BNA OSHC 2117, 1981 CCH OSHD P25,579 (No. 78-6265, 1981), appeal filed, No. 81-4342 (5th Cir. Aug. 26, 1981), the Commission concluded that, although the types of hazards covered under the standard are limited to hazards of injury resulting from "absorption, inhalation, or physical contact," these categories are sufficiently broad to include the hazard of drowning. The Commission also determined that flotation devices can be required under the standard, even though they are not specifically mentioned, again because the list of protective devices at section 1910.132(a) is illustrative and cannot be construed as a limitation on the scope of the [*9] standard.

Applying this reasoning to the case before us, Commissioner Cottine and I conclude that the hazard of falling from the hot top platform is a hazard of processes or the environment within the meaning of section 1910.132(a) because the platform is where Respondent's employees stand when making "hot tops" and is thus part of the work surroundings of Respondent's employees. Similarly, we find no indication that the drafters of this provision intended to exclude from the scope of this standard equipment to protect against this hazard -- specifically, safety belts and lanyards. Furthermore, the section 1910.132(a) limitation to hazards "encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact" is sufficiently broad to include the hazard of injury or death by falling. Here, for example, injury could be sustained as a result of "physical contact" with a flatbed rail car or with the concrete floor due to a fall. n3 Accordingly, Commissioner Cottine and I conclude that the standard may properly be read to encompass a requirement that safety belts and lanyards be used to protect against [*10] a fall hazard, and it is therefore applicable in the instant case.

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n3 With regard to the Secretary's instruction to cease citing safety belt violations under section 1910.132(a), which was noted by Judge Maxwell in his decision and by Respondent on review, the Commission has held that the Secretary's internal administrative directives lack the force and effect of law and are thus not binding on the Secretary or the Commission. C.R. Burnett and Sons, Inc., 80 OSAHRC 111/A2, 9 BNA OSHC 1009, 1980 CCH OSHD P24,964 (Nos. 78-1103 & 78-1105, 1980), pet. den., No. 81-7057 (5th Cir. Feb. 6, 1981); FMC Corp., 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-78 CCH OSHD P22,060 (No. 13155, 1977). In any event, when the Secretary issued his instructions in CPL 2-1.13, he stated that he was doing so because of adverse decisions by Commission judges vacating 1910.132(a) citations; he did not expressly or impliedly acknowledge the correctness of those decisions.

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IV

Although section 1910.132(a) applies to the cited circumstances, [*11] I deny the Secretary's request for a remand and conclude that the citation should be vacated because Respondent was not given sufficient notice of the standard's applicability to fall hazards and safety belts. First of all, the requirements of the standard are set forth in broad, general language necessitated by "the myriad conceivable situations which could arise and which would be capable of causing injury." Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). Thus, the standard itself did not clearly apprise Respondent that it was required to provide safety belts to employees exposed to falling hazards. Secondly, Respondent introduced evidence that the steel industry has not interpreted the cited standard as requiring use of safety belts and does not require safety belts for employees working on mold yard platforms. In addition, the Commission has not until now considered the issue of whether section 1910.132(a) requires safety belts for falling hazards, and the majority of unreviewed decisions by Commission administrative law judges on this issue have held that section 1910.132(a) would not apply to such protective equipment and such a hazard. Although [*12] these unreviewed judges' decisions are not binding upon the Commission, see note 2 supra, they created the appearance of a "pattern of administrative enforcement" that failed to give Respondent adequate notice that the standard applied to safety belts and the hazard of falling. See Diebold, Inc. v. Marshall, 585 F.2d 1327, 1336 (6th Cir. 1978). Moreover, as noted by the judge and Respondent, the Secretary has in the past issued a directive concluding that the standard did not require the use of safety belts. Therefore, in order to give Respondent "the full benefit of the notice denied," I conclude that the citation should be vacated. See Diebold, Inc. v. Marshall, supra, 585 F.2d at 1339; Auto Sun Products Co., 81 OSAHRC 71/E14, 9 BNA OSHC 2008, 1981 CCH OSHD P25,808 (No. 77-2616, 1981), appeal filed, No. 81-3503 (6th Cir. Aug. 28, 1981).

Citation 2, which alleges noncompliance with section 1910.132(a), is vacated.

IT IS SO ORDERED.

CONCURBY: ROWLAND

CONCUR:

ROWLAND, Chairman, concurring in the disposition:

I agree with Commissioner Cleary's decision to vacate the citation, but for different reasons than those set forth in his opinion. In my view, section 1910.132(a) [*13] does not apply to this case because safety belts and lanyards do not constitute the type of personal protective equipment contemplated by that standard.

It is a well-established tenet of regulatory construction that in order to effectuate the intent of the drafter and provide fair notice to the reader, an undefined term, such as "protective equipment" in the cited standard, should be given its commonsense, plain meaning in light of the context in which the term is used. See S.J. Groves & Sons Co. v. OSHRC, No. 80-4201 (2d Cir. May 1, 1981); 2A Sutherland Statutory Construction 47.16, 47.17 (4th ed. 1973).

Section 1910.132(a) explains that "protective equipment" includes "personal protective equipment for eyes, face, head and extremities, protective clothing, respiratory devices and protective shields and barriers." The protective measures listed as "protective equipment" are all the same type: each shares, among other things, the salient quality of restricting or blocking external agents, objects, or substances encountered at the workplace from coming into contact with the employee. Similarly, the personal protective equipment required by the other standards in [*14] Subpart I also function as filters or barricades. n4 For example, sections 1910.133(a)(1) and (a)(3) refer to goggles to block flying objects, glare, liquids and radiation. See also 1910.134 (respirators), 1910.135 (helmets), 1910.136 (safety-toe footwear), 1910.137 (rubber gloves). Thus, the context in which the term "protective equipment" is used indicates that "protective equipment" means devices which serve as barricades or filters against external agents.

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n4 Section 1910.132(a) is codified in Subpart I, titled "Personal Protective Equipment."

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By contrast, safety belts reduce or eliminate potential falls by restraining and restricting the employee himself, rather than barricading or filtering external substances. Moreover, no mention is made of safety belts or similar devices which restrain an employee in either section 1910.132(a) or the other standards in Subpart I. n5 While the word "including" in section 1910.132(a) shows that the standard is not limited exclusively to the devices listed, it would [*15] be inconsistent with the plain thrust of section 1910.132(a), and indeed all of Subpart I, to hold that the cited standard encompasses substantially dissimilar personal protective equipment, such as safety belts and lanyards. Cf. General Electric v. OSHRC, 583 F.2d 61 (2d Cir. 1978).

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n5 I note that Subpart D, another subpart of the general industry standards in Part 1910, is directed toward various falling hazards associated with potentially dangerous walking-working surfaces, such as open-sided platforms and floor openings. However, I need not at this time consider the question of whether Subpart D contains the exclusive requirements regarding fall protection for general industries.

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The majority reasons that the standard evidences no affirmative indication that the drafters of section 1910.132(a) intended to exclude safety belts and lanyards from the scope of the standard. However, the majority's reasoning renders the standard unenforceably vague. Standards cannot be construed to mean what the drafters [*16] might have intended but did not express; occupational safety and health standards must give employers fair notice of what is required for compliance. Bethlehem Steel v. OSHRC, 573 F.2d 157 (2d Cir. 1978), Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976). See Owens-Corning Fiberglass Corp. v. Donovan, 659 F.2d 1285 (5th Cir. 1981). Since safety belts are substantially different from the devices referred to in section 1910.132(a), an employer is not, in my view, given fair notice that safety belts constitute the type of protective equipment contemplated by section 1910.132(a).

Moreover, contrary to what the majority suggests, the word "environment" as used in section 1910.132(a) does not mean general "work surroundings" in my view. The types of protective equipment referred to in the cited standard and in Subpart I - such as respirators and eye goggles - indicate that the phrase "hazards of . . . environment" concerns hazards such as climatic or air-borne hazards, not hazards of all physical surroundings. In this regard, a fall hazard is not the type of hazard suggested by section 1910.132(a) and the other provisions in Subpart I.

Therefore, while I [*17] agree with the majority that a fall could result in injury by "physical contact," I conclude that section 1910.132(a) does not require safety belts and lanyards to reduce potential fall hazards. Because section 1910.132(a) is thus inapplicable to the present case, I would affirm Judge Maxwell's decision to vacate the citation.

DISSENTBY: COTTINE (In Part)

DISSENT:

COTTINE, Commissioner, dissenting in part:

There has been no showing that Bethlehem was deprived of fair notice as a matter of law that safety belt protection is within the ambit of 29 C.F.R. 1910.132(a). Accordingly, I would remand for a decision on the merits.

I

Commissioner Cleary bases his conclusion that Bethlehem was denied adequate notice of the requirements of section 1910.132(a) on Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978). In Diebold the court concluded that the due process clause of the Fifth Amendment was violated because two machine guarding standards failed to provide constitutionally adequate warning of the conduct required. The court found that no substantial notice problem was presented based on the mere fact that the standard relied on by the Secretary, 29 C.F.R. 1910.212(a)(3)(ii), was broadly [*18] worded. "Thus, if our concern here were merely the non-specificity of the regulation, there would be little room for debate." 585 F.2d at 1336.

The court concluded that the cumulative effect of several additional factors yielded a finding of inadequate notice. First was the "inartful drafting" of another standard, 29 C.F.R. 1910.217(a)(5), which arguably created a specific exemption for the cited machines (press brakes). 585 F.2d at 1336-37. Second was the undisputed "common understanding and commercial practice" relative to press brake guarding. The court concluded that the average employer would be unaware that the requirements applied to press brakes. Third was the pattern of administrative enforcement; a clear majority of Commission judges had held that the cited standard was inapplicable to press brakes. "Whether an employer looked to the language of the regulations or to industry practice, it would have been led to believe that press brakes had been specifically exempted from guarding requirements." 585 F.2d at 1337 (citation omitted). However, the court noted that if Diebold had been aware of the standards' requirements it could not complain of an inadequate warning [*19] to others. 585 F.2d at 1337, citing United States v. Raines, 362 U.S. 17, 21 (1960). Thus, the Diebold analysis was based on a factual record.

The Diebold court also stated that the lack of adequate notice does not automatically lead to vacation of the citation. The court recognized that "there are probably cases in which an order such as the present one could properly be treated as severable, with enforcement denied on due process grounds only in relation to the penalties for past conduct." Id. at 1338-39 (citation omitted). The sole basis for vacating the entire citation in Diebold was that the inadequate notice also deprived the employer of the opportunity to seek a variance from the standard's requirements and thus an opportunity to establish its asserted defense of impossibility of compliance. Moreover, the Diebold court expressly limited its holding to "the particular 'facts of the case at hand'." Id. at 1338, citing United States v. Mazurie, 419 U.S. 544 (1975).

II

The facts in this case are significantly different and the principles applied in Diebold lead to a finding of fully adequate notice here. The cited standard, 29 C.F.R. [*20] 1910.132(a), though a broadly worded standard, "appears to have been drafted with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury." McLean Trucking Co. v. OSAHRC, 503 F.2d 8, 10 (4th Cir. 1974), quoting Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). Although 1910.132(a) does not explicitly mention safety belt protection, safety belts are a well-known, widely-used form of personal protective equipment. See, e.g., National Safety Council, Accident Prevention Manual for Industrial Operations, 1185-1190 (6th ed. 1973). The personal protective equipment provision of the construction industry standards, 29 C.F.R. 1926.28, specifically incorporates provisions concerning safety belts, lifelines and lanyards. n1 "Both regulations [ 1910.132(a) and 1926.28] require the use of personal protective equipment, such as safety belts, when necessary to protect against hazards such as falling." Turner Communications Corp. v. OSAHRC, 612 F.2d 941, 944 (5th Cir. 1980) (dictum). Thus, if our concern is merely the non-specificity of 1910.132(a), there [*21] is little room for dispute that it provided adequate notice of its requirements. Also, unlike Diebold, there are no seemingly inconsistent provisions in this case that reasonably could mislead an employer attempting to comply.

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n1 Subpart C - General Safety and Health Provisions

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

(b) Regulations governing the use, selection, and maintenance of personal protective and lifesaving equipment are described under Subpart E of this part.

* * *

Subpart E - Personal Protective and Life Saving Equipment

1926.104 Safety belts, lifelines, and lanyards.

(a) Lifelines, safety belts, and lanyards shall be used only for employee safeguarding. Any lfeline, safety belt, or lanyard actually subjected to inservice loading, as distinguished from static load testing, shall be immediately removed from service and shall not be used again for employee safeguarding.

(b) Lifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds.

[The remaining provisions of the standard, which merely contain required specifications for safety belts, lifelines and lanyards, are omitted here.]

[*22]

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Bethlehem presented evidence at the hearing that the steel industry did not interpret 1910.132(a) to require the use of safety belts. This is a factual issue on which the judge has not ruled because he disposed of the case on the general applicability issue. The Secretary did not brief this issue and was not on notice to brief it under the direction for review. Thus, Bethlehem's evidence on the steel industry's interpretation is not properly relied on for purposes of this appeal. However, even assuming that Bethlehem is correct regarding the industry's interpretation, the reasons put forward for that interpretation have been rejected. We may not decline to enforce a standard merely because an industry has interpreted it erroneously.

Furthermore, the Respondent was not deprived of fair notice of the applicability of 1910.132(a) to safety belts by prior Commission decisions. Bethlehem points to three unreviewed judges' decisions issued before the alleged violation in this case in which 1910.132(a) was held inapplicable to safety belts. n2 However, there were also at least two unreviewed judges' [*23] decisions before that time finding violations of 1910.132(a) based on lack of proper safety belt protection. n3 Moreover, the unreviewed decisions of Commission judges are without precedential value and may not be relied on as the Commission's view of the law. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976). n4 Consistent with the remedial purposes of the Act, the Commission should not decline enforcement of a citation, including the abatement of any hazards that may exist, simply because there is no authoritative interpretation of the standard by the three-member Commission.

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n2 Belau Transfer and Terminal Co., 78 OSAHRC 28/B5, 6 BNA OSHC 1592, 1978 CCH OSHD P22,681 (O. 76-4631, 1978) (ALJ Mitchell); Union Oil Co. of California, 78 OSAHRC 21/E4, 6 BNA OSHC 1433, 1978 CCH OSHD P22,614 (No. 76-2784, 1978) (ALJ Mitchell), aff'd on other grounds, 616 F.2d 1113 (9th Cir. 1980); Northwest Bridge and Tank Co., 73 OSAHRC 1/C7, 1 BNA OSHC 3025, 1971-73 CCH OSHD P15,342 (No. 1113, 1972) (ALJ Morris). Bethlehem also points to two decisions issued after the alleged violation in this case. John Zink Co., 79 OSAHRC 73/F10, 7 BNA OSHC 2019, 1979 CCH OSHD P23,853 (No. 78-1834, 1979) (ALJ Morris); Robberson Steel Co., 79 OSAHRC 1/A2, 7 BAN OSHC 1195, 1979 CCH OSHD P23,256 (No. 76-4636, 1979) (ALJ Cronin). However, subsequent decisions could not affect Bethlehem's understanding on the date of the alleged violation.

n3 Sun Ray Lighting Co., 77 OSAHRC 17/B7, 5 BNA OSHC 1071, 1975-76 CCH OSHD P20,732 (No. 14580, 1976) (ALJ Burroughs); Technical Tubing Testers, Inc., 78 OSAHRC 34/B13, 6 BNA OSHC 1615, 1977-78 CCH OSHD P22,724 (No. 77-1525, 1978) (ALJ Bullis).

n4 In a Commission decision issued in 1975, Commissioner Cleary expressed the view that 1910.132(a) required safety belts. Colorado Fuel and Iron Steel Corp., 75 OSAHRC 67/A2, 3 BNA OSHC 1289, 1974-75 CCH OSHD P19,729 (No. 594, 1975). There as here the alleged fall hazards concerned work on railroad cars, and the employees were not provided with safety belts and lifelines. The judge had vacated an alleged 1910.132(a) violation on the ground that the standard is unenforceably vague as applied to the conditions involved. His decision was upheld without precedential effect because the two sitting Commissioners differed in their disposition of the case. Commissioner Cleary's views in that case are significant:

Assuming arguendo that the Commission has authority to consider the validity of a standard, Commissioner Cleary considers that any question as to the constitutional validity of 29 C.F.R. Sec. 1910.132(a) to be now well-settled. McLean Trucking Co. v. OSAHRC [supra]; Ryder Truck Lines v. Brennan [suppra]. . . . Commissioner Cleary expresses the hope, if not the expectation, that the respondent will take voluntarily corrective measures. Moreover, in his view, the Secretary of Labor may reinspect under section 1910.132(a) . . . .

3 BNA OSHC at 1290-91, 1974-75 CCH OSHD at p. 23,538.

[*24]

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Commissioner Cleary also relies on OSHA Instruction CPL 2-1.13 (April 16, 1979). See lead opin., pt. IV. That instruction directed compliance officers no longer to cite employers under 1910.132(a) for failure to wear safety belts. However, that internal administrative instruction was issued after the alleged violation in this case, and thus does not show that Bethlehem was deprived of fair notice of the standard's requirements with respect to this citation. Also, the instruction does not conclude that 1910.132(a) does not require safety belts. Instead, it represents a policy decision based on certain adverse decisions by Commission judges. See lead opin., n. 3.

In addition, the Secretary has not had a fair opportunity on review to address the factual issue of whether Bethlehem actually was aware of the applicability of 1910.132(a) to safety belts. The Diebold analysis was made on a factual record. The Secretary contended below that Bethlehem admittedly had used safety belts in the mold yard area in the past. This contention is relevant to whether Bethlehem actually knew safety belts [*25] are required there. Owens Corning Fiberglass Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD P23,509 (No. 76-4990, 1979), aff'd, 659 F.2d 1285 (5th Cir. 1981). Thus, this case should not be vacated on notice grounds in reliance on Diebold without a complete factual record. n5

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n5 Auto Sun Products Co., 81 OSAHRC 71/E14, 9 BNA OSHC 2008, 1981 CCH OSHD P25,808 (No. 77-2616, 1981), appeal filed, No. 81-3503 (6th Cir. Aug. 28, 1981), cited by Commissioner Cleary to support vacation of the citation, is inapposite. There, as in Diebold, there was a misleading standard which we found failed to put the Respondent on notice of the standard's requirements. However, there are no misleading provisions here depriving Bethlehem of fair notice of the cited standard's requirements.

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III

In summary, there has been no showing that Bethlehem was deprived of fair notice regarding the application of 1910.132(a) to safety belts as a matter of law. Factual issues are not before us at this time and should [*26] be resolved by the judge on remand in the first instance. The remaining issues include whether a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to Bethlehem's industry, would recognize a hazard warranting the use of personal protective equipment. E.g., Ownes Corning Fiberglass Corp., supra. This universal "reasonable person" test eliminates any notice problems of a constitutional dimension. United States v. Petrillo, 332 U.S. 1 (1947); Ryder Truck Lines, Inc. v. Brennan, supra. Accordingly, this case should be remanded for a decision on the merits of the citation.