I. lntroduction

On September 6, 1991, the Commission issued its decision in this case. Contractors Welding of Western New York., Inc., 15 BNA OSHC 1249, 1991 CCH OSHD ¶ 29,454 (No. 88-1847,1991). The citation adjudicated in that decision alleged, among other things, that the company had violated the standard at 29 C.F.R. § 1926.106(a) [[1]] because welders employed by the company were not wearing life vests or buoyant work vests while they were working on the metal structure of a drawbridge. The citation also alleged that the company had failed to comply with 29 C.F.R. § 1926.106(c) [[2]] by not having available at the worksite a ring buoy with at least 90 feet of line attached. The Commission found that the company had violated section 1926.106(c) because no ring buoy at the site had the required 90 feet of line attached.

The Commission vacated the section 1926.106(a) item because the company presented evidence that it had provided enough life vests at the worksite for every employee. The Commission rejected the Secretary’s assertion that there was an implicit requirement in the standard that an employer require its employees to wear the life vests. It found that the company had fulfilled its obligation under the standard to provide life vests for its employees by having the vests at the worksite available for any employee who wished to use one. Noting that its decision could be appealed to the United States Court of Appeals for the Second Circuit, the Commission examined that court’s precedent on the question and found that it supported the Commission’s conclusion.

Both parties appealed the Commission’s decision to the Court of Appeals for the Second Circuit. Subsequently, the parties agreed to settle their disputes and submitted a motion to the court requesting that the appeals be dismissed and the case returned to the Commission for the Commission to approve the parties’ settlement agreement and vacate its decision. The stipulation submitted by the parties to the court, and entered by the court on February 5, 1992, recited that the appeal was withdrawn subject to reinstatement if the Commission did not vacate its decision by March 17, 1992. It did not, however, contain any language remanding the case to the Commission.

The parties filed with the Commission a joint motion asking the Commission to vacate its September, 1991 decision and approve the parties’ settlement agreement. However, because the parties never responded to a request from the Commission to inform the Commission of the jurisdictional basis for the Commission to act on their motion, the Commission dismissed the joint motion.

The parties have again submitted a settlement agreement to the court, which entered an order dismissing the appeal and remanding the case to the Commission “for further proceedings before the Commission in accordance with the parties’ settlement agreement.”

II. Discussion.

The settlement agreement recites that the Secretary withdraws the citations as to both the section 1926.106(a) allegation and the section 1926.106(c) allegation. To conform our decision to the parties’ settlement agreement, we must therefore vacate that portion of the decision finding a violation of 29 C.F.R. § 1926.106(c). Also although we vacated the item alleging a violation of 29 C.F.R. § 1926.106(a), we must now amend our decision to indicate that the citation was withdrawn, and that portion of the decision is now moot. We note, however, that the Second Circuit did not review any portion of the decision and has made no adjudication as to the merits of the issues presented. Indeed, our original decision on the section 1926.106(a) item relied on Second Circuit precedent.

The Commission was created by the Congress as a single agency with nationwide jurisdiction in order to establish a uniform body of law that would afford consistency in the adjudication of case arising under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678. Keystone Roofing, Inc. v. OSHRC, 539 F.2d 960, 963, 964 (3d Cir. 1976). The Commission is concerned that, if the Secretary were to appeal adverse decisions solely for the purpose of entering into settlement agreements to eliminate the binding effect of our precedent, that practice could frustrate this congressional objective. This is not to say that we oppose settlement of cases before the courts of appeals, or at any level. In fact, the Commission has a policy which encourages settlement of cases which are before it at any stage. of the proceedings.[[3]]

While the decision on the 1926.106(a) item is now moot, we believe that the analysis of the issue presented was correct. Under the circumstances, we conclude that our decision still constitutes valid precedent and may be relied on in future arguments to the Commission.

III Conclusion.

Accordingly, pursuant to the instructions of the court of appeals, our prior decision in this case is vacated as moot.

Edwin G. Foulke, Jr.                                                                                                                             Chairman

Donald G Wiseman
Commissioner

Velma Montoya                                                                                                           
Commissioner

Dated: August 6, 1992