SECRETARY OF LABOR,

 

 

SECRETARY OF LABOR,

	

 

                                    Complainant,

	

 

 

	

 

v.

 

 

	


    OSHRC Docket Nos. 95-0103 & 95-0104

MANGANAS PAINTING CO., INC.,

	

                                                

 

	

 

                                    Respondent.

	

 

 

APPEARANCES:

Jordana Wilson, Attorney; Kenneth A. Hellman, Senior Trial Attorney;
Joseph M. Woodward, Associate Solicitor; Howard M. Radzely, Acting
Solicitor; U.S. Department of Labor, Washington, DC

                 For the Complainant

 

Roger L. Sabo, Esq., and Denise L. Hanson, Esq.; Schottenstein, Zox &
Dunn, Columbus, OH

                 For the Respondent

 

*REMAND ORDER*

Before:  ROGERS, Acting Chair; and THOMPSON, Commissioner.

BY THE COMMISSION:

This case is before the Commission on remand from the United States
Court of Appeals for the Sixth Circuit.  /Chao v. OSHRC/ (/Manganas
Painting Co./), 540 F.3d 519, 528 (6th Cir. 2008).  The Secretary filed
a petition with the court seeking review only of the Commission
majority’s decision in Docket No. 95-0103 to vacate Citation 2, Items
13a, 13b, and 13c, as barred by § 10(b) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 659(b) (“OSH Act”).  /Manganas Painting
Co./, 21 BNA OSHC 2043, 2061-62 (Nos. 95-0103 & 95-0104, 2007).  In an
opinion dated August 29, 2008, the court granted the Secretary’s
petition for review, reversed the Commission, and remanded “for further
proceedings regarding the merits of the citations at issue.”  /Manganas
Painting Co./, 540 F.3d at 521.

Under Items 13a, 13b, and 13c, the Secretary alleged that Respondent
violated 29 C.F.R. § 1926.451(a) (1994) by failing to provide guardrails
on painter’s pick scaffolds. In reversing the Commission’s narrow
disposition of these citation items, the court left standing that part
of former Administrative Law Judge James Barkley’s decision in which he
vacated all three items based on his findings regarding duplicativeness
and applicability of the cited standard.  In light of subsequent case
law relevant not only to the issues addressed by the judge, but other
issues raised by the parties that relate to the merits of these items,
we now set aside that part of the judge’s decision regarding Items 13a,
13b, and 13c, and remand this case to the Chief Administrative Law Judge
for further proceedings.

SO ORDERED.

 

 

/s/___________________________

                          
                                                         Thomasina V. Rogers

                                                                                   
Acting Chair

 

 

 

/s/__________________________

                          
                                                         Horace A.
Thompson III

Dated:April 14, 2009                                                
Commissioner