Haysite Division of Synthane - Taylor Corporation (Commission decision, September 2, 1981)

Plain-English summary

Haysite contested one item of a nonserious citation alleging that its employees did not use protective footwear, in violation of 29 C.F.R. § 1910.132(a). At the close of the Secretary's case, Administrative Law Judge William E. Brennan granted an involuntary dismissal under Federal Rule of Civil Procedure 41(b), holding that the Secretary had not shown the employer's conduct departed from industry custom and practice or that the employer actually knew of a specific hazard. No Commission member directed review, so the decision became a final order.

The Third Circuit reversed and remanded. Relying on its own decision in
Voegele Company, the court held that the judge had used the wrong test for hazard recognition under § 1910.132(a). The correct test is whether a reasonable person familiar with the circumstances surrounding the allegedly hazardous condition, including facts unique to the particular industry, would recognize a hazard in not requiring protective equipment.

This order does nothing more than carry out the court's mandate. The Commission remands to Judge Brennan for further proceedings.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.132(a) (personal protective
  equipment), nonserious.
• Outcome: Remanded to Judge Brennan for further proceedings on the Third
  Circuit's mandate. No ruling on the merits.
• Key point: Hazard recognition under § 1910.132(a) is measured by the
  reasonable person familiar with the circumstances, including industry-specific facts, and not by proof of a departure from industry custom plus actual knowledge of a specific hazard.

Full text (OSHRC public release)

Docket No. 79-407

HAYSITE DIVISION OF SYNTHANE-TAYLOR CORPORATION

OSHRC Docket No. 79-407

Occupational Safety and Health Review Commission

September 2, 1981

COUNSEL:

[*1]

Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Edward W. Goebel, Jr., for the employer

OPINION:

ORDER

This case is before the Commission on remand from the United States Court of Appeals for the Third Circuit.

Marshall v. Haysite, Division of Synthane Taylor Corp., No. 80-1800 (3d Cir. Nov. 17, 1980).

Respondent in this case contested one item of a nonserious citation alleging a violation of 29 C.F.R.

1910.132(a) for failure of its employees to use protective footwear.

At the conclusion of the Secretary's presentation of his case at the hearing, Respondent moved for Involuntary Dismissal under Federal Rule of Civil Procedure 41(b). n1 Judge William E. Brennan granted this motion.

The judge concluded that the Secretary had failed to establish that the employer's conduct was contrary to industry custom and practice and that the employer had actual knowledge of a specific hazard.

The judge's decision became a final order of the Commission when no Commission member directed that it be reviewed.

See 29 U.S.C.

661(i).

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 The Federal Rules of Civil Procedure are applicable to Commission proceedings unless the Commission has adopted a different rule.

29 U.S.C.

661(f); 29 C.F.R.

2200.2(b).

[*2]

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

The Third Circuit reversed the judge's decision and remanded the case to the Commission.

The court, relying on its decision in Voegele Company, Inc. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980), held that the judge applied an improper test for recognition of a hazard under section 1910.132(a).

The court concluded that the appropriate test was whether a reasonable person, familiar with the circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard in not requiring use of protective equipment.

Accordingly, to effectuate the court's order, we remand this case to Judge William E. Brennan to conduct further proceedings.

SO ORDERED.