“Docket No. 76-1718 1 of 202 DOCUMENTS TURNER COMPANY A. SCHONBEK & CO., INC.? NORANDA ALUMINUM, INC.? GENERAL MOTORS CORP., GM ASSEMBLY DIV.? ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.? CLEMENT FOOD COMPANY MILLCON CORPORATION FWA DRILLING COMPANY, INC.? CCI, INC.? GENERAL ELECTRIC COMPANY CONSOLIDATED ALUMINUM CORPORATION THE BRONZE CRAFT CORPORATION CARGILL, INC.? CHAPMAN CONSTRUCTION CO., INC.? GALLO MECHANICAL CONTRACTORS, INC.? SPECIAL METALS CORPORATION WILLAMETTE IRON AND STEEL COMPANY NASHUA CORPORATION WESTINGHOUSE ELECTRIC CORPORATION RESEARCH-COTTRELL, INC.? ROCKWELL INTERNATIONAL CORPORATION NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.? NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.? BUNKOFF CONSTRUCTION CO., INC.? GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION HARRIS BROTHERS ROOFING CO.? GENERAL DIVERS COMPANY ORMET CORPORATION R. ZOPPO CO., INC.? COEUR D’ALENE TRIBAL FARM L. A. DREYFUS COMPANY CMH COMPANY, INC.? BENTON FOUNDRY, INC.? MICHAEL CONSTRUCTION CO., INC.? WHIRLPOOL CORPORATION BROWN & ROOT, POWER PLANT DIVISION MARION POWER SHOVEL CO., INC.? ERSKINE-FRASER CO.? MORRISON-KNUDSEN AND ASSOCIATES THE BOAM COMPANY DIC-UNDERHILL, a Joint Venture C. R. BURNETT AND SONS, INC.; HARLLEE FARMS STRIPE-A-ZONE, INC.? FORTE BROTHERS, INC.? RAYBESTOS FRICTION MATERIALS COMPANY TEXLAND DRILLING CORPORATION THE ANACONDA COMPANY, WIRE AND CABLE DIVISION SAM HALL & SONS, INC.? VAMPCO METAL PRODUCTS, INC.? LEONE INDUSTRIES, INC.? ASARCO, INC.? DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY PLUM CREEK LUMBER COMPANY PLUM CREEK LUMBER COMPANY STEARNS-ROGER, INC.? FERRO CORPORATION, (ELECTRO DIVISION) AMERICAN PACKAGE COMPANY, INC.? BROWN & ROOT, INC., POWER PLANT DIVISION FLEETWOOD HOMES OF TEXAS, INC.? DONALD HARRIS, INC.? A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.? ELECTRICAL CONSTRUCTORS OF AMERICA, INC.? DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company) ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY NAVAJO FOREST PRODUCTS INDUSTRIES METROPAK CONTAINERS CORPORATION AUSTIN BUILDING COMPANY BABCOCK AND WILCOX COMPANY DARRAGH COMPANY BABCOCK & WILCOX COMPANY OTIS ELEVATOR COMPANY R. ZOPPO COMPANY, INC.? LUTZ, DAILY & BRAIN – CONSULTING ENGINEERS PENNSYLVANIA POWER & LIGHT CO.? HARSCO CORPORATION, d\/b\/a PLANT CITY STEEL COMPANY NORTHWEST AIRLINES, INC.? INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.? GENERAL MOTORS CORPORATION, INLAND DIVISION WELDSHIP CORPORATION S & S DIVING COMPANY SNIDER INDUSTRIES, INC.? NATIONAL STEEL AND SHIPBUILDING COMPANY MAXWELL WIREBOUND BOX CO., INC.? CONTINENTAL GRAIN COMPANY MISSOURI FARMER’S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d\/b\/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY CAPITAL CITY EXCAVATING CO., INC.? GAF CORPORATION PPG INDUSTRIES (CARIBE) a Corporation DRUTH PACKAGING CORPORATION SOUTHWESTERN ELECTRIC POWER COMPANY TUNNEL ELECTRIC CONSTRUCTION CO.? WEATHERBY ENGINEERING COMPANY JOHNSON STEEL & WIRE CO., INC.? AUSTIN ROAD CO.? MAYHEW STEEL PRODUCTS, INC.? LADISH CO., TRI-CLOVER DIVISION, a Corporation PULLMAN POWER PRODUCTS, INC.? NATIONAL ROOFING CORPORATION OSCO INDUSTRIES, INC.? HIGHWAY MOTOR COMPANY, d\/b\/a PARK PRICE MOTOR COMPANY S.J. GROVES AND SONS COMPANY CAR AND TRUCK DOCTOR, INC.? PRESTRESSED SYSTEMS, INC.? TEXACO, INC.? GEORGIA HIGHWAY EXPRESS, INC.? RED LOBSTER INNS OF AMERICA, INC.? SUNRISE PLASTERING CORP.? STONE & WEBSTER ENGINEERING CORPORATION H.B. ZACHRY COMPANY (INTERNATIONAL) NATIONAL INDUSTRIAL CONSTRUCTORS, INC.? BUSHWICK COMMISSION COMPANY, INC.? CIRCLE T DRILLING CO., INC.? J.L. FOTI CONSTRUCTION COMPANY, INC.? TEXACO, INC.? KENNETH P. THOMPSON CO., INC.? HENRY C. BECK COMPANY HEATH & STICH, INC.? FARMERS EXPORT COMPANY FOSTER AND KLEISER TURNER WELDING & ERECTION CO., INC.? TRI-CITY CONSTRUCTION CO.? THE DURIRON COMPANY, INC.? SAMSON PAPER BAG CO., INC.? MEL JARVIS CONSTRUCTION COMPANY, Inc.? MIDWEST STEEL ERECTION, INC.? GEISLER GANZ CORPORATION NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY NATIONAL MANUFACTURING COMPANY WALLACE ROOFING COMPANY REYNOLDS METALS COMPANY, INC.? UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.? SUFFOLK COUNTY CONTRACTORS, INC.? NORANDA ALUMINUM, INC.? ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC. GENERAL ELECTRIC COMPANY SERVICE SPECIALTY, INC.? ECCO HIGH FREQUENCY ELECTRIC CORP.? HENRY C. BECK COMPANY REPUBLIC ROOFING CORPORATION OSHRC Docket No. 76-1718 Occupational Safety and Health Review Commission May 21, 1980 ?[*1]? Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.? COUNSEL: Baruch A. Fellner, Office of the Solicitor, USDOL James E. White, Reg. Sol., USDOL Larry E. Kelly, for the employer OPINION: DECISION BY THE COMMISSION: A decision of Administrative Law Judge Jerry W. Mitchell is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? ?? 651-678 (\”the Act\”).? Judge Mitchell vacated a citation alleging that Respondent, Republic Roofing Corporation, violated section 5(a)(2) of the Act n2 by permitting its employees to work near the edge of a roof without using personal fall protection equipment such as lifelines, lanyards, and safety belts. n3 Judge Mitchell held that the Secretary of Labor (\”Secretary\”) had not met the burden of pleading and proving the feasibility of the use of personal protective equipment, citing Frank Briscoe Co., 76 OSAHRC 129\/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD P21,162 (No. 7792, 1976) (\”Frank Briscoe Co.\”). Because he vacated the citation on this basis, the judge did not address other arguments made by Respondent concerning the merits of the alleged violation. – – – – – – – – – – – – – -? [*2]? – – – -Footnotes- – – – – – – – – – – – – – – – – – n1 29 U.S.C. ?? 661(i). n2 29 U.S.C. ?? 654(a)(2). n3 The Secretary’s citation alleged that Respondent failed to comply with 29 C.F.R. ?? 1926.500(d)(1) in that the perimeter of the roof was not guarded with a standard railing or the equivalent.? In his complaint, the Secretary moved to amend the citation to allege that Respondent failed to comply with 29 C.F.R. ?? 1926.28(a) in that its employees were not protected by personal protective equipment.? Judge Mitchell granted the motion at the outset of the hearing and, in his decision, the judge rejected Respondent’s continued objection to the amendment. – – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – The Secretary petitioned for review of the judge’s decision, arguing that the judge erred in placing the burden of pleading and proving feasibility of personal protective equipment under section 1926.28(a) on the Secretary.? The Secretary also argued that if he did have to prove that personal protective equipment is feasible, he met that burden in this case.? Chairman Cleary granted the Secretary’s petition for review. Since the judge issued his decision,? [*3]? the Commission has overruled Frank Briscoe Co. to the extent it placed the burden of proving feasibility under section 1926.28(a) on the Secretary.? ? Thus, the judge’s ruling must be set aside and reconsidered under current Commission precedent.? Accordingly, the Commission remands the case to the administrative law judge to reconsider his decision concerning the section 1926.28(a) citation.? On remand, the judge should address both the issue directed for review and, if necessary, the other arguments raised before him that were not addressed in his decision. n4 SO ORDERED. – – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – – n4 In S & H Riggers and Erectors, Inc., supra (concurring opinion), Commissioner Barnako set forth his interpretation of 29 C.F.R. ?? 1926.28(a) and concluded that the Secretary has the burden of proving feasibility. He thus followed the Commission’s decision in Frank Briscoe Co., supra. Commissioner Barnako continues to adhere to the position set forth by him in S & H Riggers and Erectors. However, he has previously recognized that the orderly administration of the Act requires that the Commission’s administrative law judges follow precedents established by the Commission.? Gulf & Western Food Products Co., 77 OSAHRC 72\/A2, 4 BNA OSHC 1436 at 1439, 1976-77 CCH OSHD P20,884 at 25,067 (Nos. 6804 & 6805, 1976).? For this reason, he joins with his colleagues in their remand order. ?[*4]? – – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – “