513 F.2d 713 (8th Cir. 1975), 74-1643, Brennan v. Occupational Safety and Health Review Com'n

Docket Nº:74-1643.
Citation:513 F.2d 713
Party Name:Peter J. BRENNAN, Secretary of U. S. Department of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ron M. Fiegen, Inc., Respondents.
Case Date:April 18, 1975
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 713

513 F.2d 713 (8th Cir. 1975)

Peter J. BRENNAN, Secretary of U. S. Department of Labor, Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ron M.

Fiegen, Inc., Respondents.

No. 74-1643.

United States Court of Appeals, Eighth Circuit

April 18, 1975

Submitted Feb. 13, 1975.

Page 714

Morton Hollander, Chief, Appellate Section, Civ. Div., U. S. Dept. of Justice, Washington, D. C., for petitioner.

Robert L. O'Connor, Sioux Falls, S. D., for respondents.

Before BRIGHT, ROSS and STEPHENSON, Circuit Judges.

BRIGHT, Circuit Judge.

The petitioner, the Secretary of Labor, contends in this case that the Occupational Safety and Health Review Commission (Commission) misconstrued the Secretary's regulation requiring the use of nets or other safety devices to protect employees working at heights more than 25 feet above ground. 1 We deem the regulation ambiguous and uphold the Commission's interpretation of it as reasonable.

The record establishes that the respondent, Ron M. Fiegen, Inc. (Fiegen), served as a subcontractor for the steel components of a physical education building under construction on the South Dakota State University campus at Brookings, South Dakota. An employee of the Occupational Safety and Health Administration observed, while inspecting the building on April 20, 1972, three of Fiegen's employees working on the building's unfinished roof 2 some 65 feet above ground and two employees on an outrigger scaffold at the same level. The inspector issued Fiegen a citation on May 3, 1972, for his failure to provide "(s)afety nets or equivalent protective equipment * * * for employees working on outrigger scaffold and unguarded roof in excess of 25 feet above ground level * * *."

Fiegen contested the citation. In accordance with 29 U.S.C. § 659(c) (1970), an administrative law judge conducted a hearing and found that the five employees had been working on the roof and scaffolding without safety nets and thereby had been exposed to the danger of falling from them. He further found that "(i)t was not possible to tie off on top of the steel roof * * * (;) hence the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts * * * (was) not practical." He assessed a penalty of $500 for this violation of § 1926.105(a). The Commission concluded that the employees had been working from a scaffold and temporary floor and reversed on the...

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