Bristol Steel & Iron Works, Inc. (Commission decision, December 18, 1979)

Plain-English summary

This is a two-paragraph remand order. The Fourth Circuit had reviewed the Commission's decision and sent the case back with a specific instruction on how to decide whether Bristol Steel violated the construction personal protective equipment standard: ask whether, under the circumstances, a reasonably prudent employer familiar with steel erection would have protected against the falling hazard by the means the citation specified.

The Commission does not apply that test itself. It passes the case down to the administrative law judge to hold whatever proceedings are needed to answer the question. Nothing else is decided.

Commissioner Cottine, concurring. He writes separately to name the principle that makes the remand automatic. Once a court of appeals has reviewed a case under section 11(a), its decision is the law of the case, and the Commission's job is to carry it out rather than revisit it.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.28(a)
• Outcome: Remanded. The case goes back to the administrative law judge to conduct the proceedings needed to apply the test the Fourth Circuit prescribed.
• Key point: A court of appeals decision on review is the law of the case, and the Commission implements it rather than reconsidering it.

Full text (OSHRC public release)

Docket No. 14537

BRISTOL STEEL & IRON WORKS, INC.
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OSHRC Docket No. 14537

Occupational Safety and Health Review Commission

December 18, 1979

COUNSEL:

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Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall Harris, Reg. Sol., USDOL

James P. Jones, for the employer

OPINION:

ORDER OF REMAND

This case was remanded to the Commission by the United States Court of Appeals for the Fourth Circuit.
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Bristol Steel & Iron Works, Inc. v. OSAHRC and Marshall, 601 F.2d 717 (4th Cir. 1979). The court concluded that "[i]n determining whether Bristol violated �
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1926.28(a), the appropriate inquiry is whether under the circumstances a reasonably prudent employer familiar with steel erection would have protected against the hazard of falling by the means specified in the citation." 601 F.2d at 723.

In accordance with that remand, the case is further remanded to the administrative law judge for the purpose of conducting the proceedings necessary to make that determination.
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CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

Following judicial review under section 11(a) of the Act, 29 U.S.C. �
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660(a), the decision of the reviewing court is the law of the case.
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See Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306 (1948); Frank Irey, Jr., Inc., 77 OSAHRC 192/F11, 5 BNA OSHC 2031, 1977-78 CCH OSHD P22,283 (No. 701, 1977).
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On the basis of that [*2]
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exclusive authority, I concur in the Commission remand of this case to the administrative law judge.
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See RMI Company, 79 OSAHRC    , 7 BNA OSHC 1482, 1979 CCH OSHD P23,666 (No. 13773, 1978).
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