Spartan Rigging Corporation & Atlantic Rigging Corporation

Plain-English summary

OSHA cited Spartan Rigging and Atlantic Rigging for allegedly failing to require employees dismantling scaffolds to wear tied-off safety belts. An administrative law judge affirmed the serious citations under 29 C.F.R. § 1926.28(a), and the employers obtained Commission review. After further evaluating the record, the Secretary moved to withdraw the citations and complaints rather than continue the cases. The Commission granted the motion despite the employers' request for a ruling on the merits and stated that the judge's decision on those citations became a nullity. A separate nonserious citation against Atlantic Rigging under 29 C.F.R. § 1926.100(a) remained affirmed because no party challenged it and the withdrawal did not cover it.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.28(a) and 1926.100(a)
• Outcome: Serious safety-belt citations withdrawn; Atlantic Rigging's separate nonserious head-protection citation affirmed.
• Key point: Withdrawal eliminated the precedential and party-specific effect of the judge's safety-belt ruling, but did not disturb an unchallenged citation outside the motion.

Full text (OSHRC public release)

Docket No. 84-0827_84-0872

SECRETARY OF LABOR,

Complainant,

v.

SPARTAN RIGGING CORPORATION,

Respondent.

OSHRC Docket No. 84-0827

SECRETARY OF LABOR,

Complainant,

v.

ATLANTIC RIGGING CORPORATION,

Respondent.

OSHRC Docket No. 84-0872

DECISION

Before:  BUCKLEY, Chairman, RADER and WALL,
Commissioners.

BY THE COMMISSION:

These consolidated cases are before the Occupational
Safety and Health Review Commission under 29 U.S.C. � 661(j), section 12(j) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651-678 ("the
Act").  The Commission is an adjudicatory agency, independent of the Department
of Labor and the Occupational Safety and Health Administration.  It was established
to resolve disputes arising out of enforcement actions brought by the Secretary of Labor
under the Act and has no regulatory functions.  See section 10(c) of the Act,
29 U.S.C. � 659(c).

The Secretary alleged in Docket No. 84-0827 as to Spartan Rigging Corporation and in
Docket No. 84-0872 as to Atlantic Rigging Corporation that the respective employers
committed serious violations of the general personal protective equipment standard
applicable to construction work, published at 29 C.F.R. � 1926.28(a), by failing to
require certain employees engaged in dismantling scaffolds at the separate worksites of
the respective employers to wear tied-off safety belts.  The two cases were assigned
to Chief Administrative Law Judge Paul A. Tenney, who after separate hearings consolidated
them for briefing and decision.  In his decision, the judge found that the employers
violated the personal protective equipment standard as alleged and affirmed the serious
citations.

The employers filed a petition for discretionary review and Chairman Buckley directed
review of the judge's decision.  The issues specified for decision were:

1) Whether the Administrative Law Judge erred in
finding that a reasonable person familiar with the circumstances, including any facts
unique to Respondent's industry, would have recognized that Respondent's employees were
exposed to a hazard warranting the use of personal protective equipment; and

2) Whether the Secretary of Labor carried his burden of proving the feasibility of using
safety belts and lanyards in the cited circumstances.

Also, in the briefing notice subsequently sent to the
parties, the attention of the parties was directed to a recent decision of the Commission,
Granite City Terminals Corp ., 86 OSAHRC _____,12 BNA OSHC 1741, 1986 CCH OSHD �
27,547 (No. 83-882-S, 1986).

On review, the Secretary filed a motion to withdraw
the citations and complaints concerning the alleged violations of the personal protective
equipment standard.  The Secretary stated:  "As a result of further
evaluation of the facts in the record the Secretary has decided not to pursue this case
any further and accordingly moves to withdraw the citations . . . . " The employers
oppose the Secretary's motion because, among other things, it came so late in the
proceedings and request that the Commission deny the Secretary's motion, direct the
Secretary to file a brief, and issue a decision on the merits.

We consider that denial of the Secretary's motion to
withdraw would be inappropriate.  See In re Federal Election Campaign Act Litigation ,
474 F. Supp. 1051 (D.C., 1979) (missed opportunity for a legal ruling is not sufficient
prejudice to warrant denial of a motion for voluntary dismissal).   Accordingly, the
motion to withdraw the citations and the complaints is granted.[[1]]

SO ORDERED.[[2]]

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  SEP 3 1986

WILLIAM E. BROCK, SECRETARY OF LABOR,

Complainant,

v.

SPARTAN RIGGING CORP &

ATLANTIC RIGGING CORP.

Respondent.

OSHRC Docket Nos. (Consolidated)

84-0827 & 84-0872

MOTION TO WITHDRAW CITATION AND COMPLAINT

Complainant, William E. Brock, Secretary of Labor,
United States Department of Labor, respectfully requests that the citations issued to
respondents on July 19, 1984 and July 31, 1984 be withdrawn and the complaints filed in
the above-referenced case on August 31, 1984 and September 12, 1984 be dismissed.

This case is now pending before the Occupational
Safety and Health Review Commission to determine whether the Secretary established by a
preponderance of the evidence that respondent failed to comply with 29 CFR 1926.28(a).

As a result of further evaluation of the facts in the
record the Secretary has decided not to pursue this case any further and accordingly moves
to withdraw the citations issued on July 19, and July 31, 1984.

The instant motion removes all contested items from
this case.  Since no further issues remain, the case should be dismissed in its
entirety.

For the above stated reasons, the Secretary
respectfully requests that the commission grant this motion to withdraw citation and
complaint.

Respectfully submitted,

GEORGE R. SALEM

Deputy Solicitor of Labor

JOHN J. HYNAN

Acting Associate Solicitor

for Occupational Safety & Health

DANIEL J. MICK

Counsel for Regional

Trial Litigation

MARY N. REVELL

Attorney

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected] ),
telephone (202-606-5398), fax (202-606-5050), TTY (202-606-5386).

FOOTNOTES:

[[1]] In their statement of opposition to the
Secretary's withdrawal, the employers assert that "over-zealous representatives of
the Secretary" have harassed members of the employers' trade association, the
Scaffold Industry Association, by using the judge's decision as authority for a
requirement for safety belts while erecting or dismantling scaffolds, even though the
judge's decision was not a Commission final order and was directed for review before the
Commission.  There is no evidence to support this assertion and we consider it
unnecessary to examine the basis for this assertion in view of our disposition of these
cases.  Our approval of the Secretary's motion to withdraw the underlying citation
renders the judge's decision a nullity even with respect to the immediate parties.  
It certainly should not be cited as an authoritative pronouncement of the Commission.

[[2]] There remains the matter of the judge's
decision affirming a nonserious citation alleging that Atlantic Rigging Corporation
violated 29 C.F.R. � 1926.100(a).  Because the judge's decision was directed for
review as to the alleged serious violations of � 1926.28(a), the nonserious citation was
also before the Commission.  See Hamilton Die Cast, Inc ., 86 OSAHRC
_____, 12 BNA OSHC 1797, 1986 CCH OSHD � 27,576 (No. 83-108, 1986).  However, no
party took exception to the judge's decision in this regard and the Secretary's motion to
withdraw does not pertain to the nonserious citation.  Accordingly, we affirm the
judge's decision in this respect.