Brennan v. OCCUPATIONAL SAFETY & HEALTH REVIEW COM'N
| Citation | 488 F.2d 337 |
| Decision Date | 19 December 1973 |
| Docket Number | No. 73-1558 Summary Calendar.,73-1558 Summary Calendar. |
| Parties | Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and J. W. Bounds (Pearl Steel Erection Company), Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Walter H. Fleischer, Asst. Chief, Appellate Section, Stanton R. Koppel, Civil Div., Dept. of Justice, Washington, D. C., Ronald A. Fonseca, Asst. U. S. Atty., New Orleans, La., for petitioner.
J. Hal Ross, Brandon, Miss., for Bounds.
William S. McLaughlin, Exec. Sec., Occupational Safety & Health Review Commission, Washington, D. C., for Commission.
Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
Pursuant to 29 U.S.C. § 660(b), the Secretary of Labor invokes this Court's review of a final order of the Occupational Safety and Health Review Commission which found that the respondent company below had not violated the regulation promulgated in 29 C.F.R. 1926.-105(a). We affirm.
In June 1972, the Department of Labor sent a safety and health compliance officer to inspect the site where respondent Bounds' company was engaged in construction work on the St. Dominic Hospital addition in Jackson, Mississippi.1 As a result of the inspection, the respondent company was cited for an alleged violation of 29 C.F.R. 1926.105(a) by the company's "failure to provide safety nets, safety belts and safety lines, or other protective devices for employees on workplaces more than 25 feet above ground or other surfaces." The regulation allegedly violated reads as follows:
Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are sic impractical.
The inspecting officer based his allegations on the conditions in which a welder and a hoist operator were working. Both employees were working at heights estimated at 40 or 50 feet, and conceded therefore to be above 25 feet. The welder was working on a mobile scaffold near the edge of the structure. There was conflicting testimony as to whether there was anything used to prevent the scaffold from falling off the edge. The hoist operator was working on the roof. Although he did not have a safety belt or line, a rope attached to the hoist was tied around his waist. The gist of the Secretary's complaint is that both employees "were essentially unprotected from falls of 40-50 feet, . . . ."
The order of the Commission found as follows:
The respondent was not in violation of 29 CFR 1926.105(a) in that while respondent\'s employees were working more than 25 feet above the ground, such work was being performed by utilizing a scaffold and on floors of the building under construction and accordingly, safety nets were not required.
The Commission also said:
The essence of this case seems to center upon a fact overlooked by the complainant. The cited standard clearly contemplates that if scaffolds or temporary floors were practical then a safety net was not necessary. Both employees were working on not temporary floors but on unfinished floors which can be construed as permanent flooring. Furthermore, the welder was working on a scaffold. Therefore, it must be concluded that since one of the employees was utilizing a scaffold and that both employees were working on floors, the cited standard is inappropriate to the factual situation and consequently, the respondent cannot be held in violation of the Occupational Safety and Health Act of 1970.
The Secretary addresses this point to the Commission's findings: "In referring to scaffolds and temporary floors the regulation obviously...
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S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Com'n, s. 79-2358
...under 29 C.F.R. § 1926.105(a), which requires safety nets where use of other fall protection devices is "impractical"); Brennan v. OSHRC, 488 F.2d 337 (5th Cir. 1973) (same). Cf. General Electric Co. v. OSHRC, 583 F.2d 61 (2d Cir. 1978) (vacating citation under 29 C.F.R. § 1910.23(c)(1), wh......
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