Schreiber Corporation

Plain-English summary

OSHA cited Schreiber Corporation for failing to provide guardrails or equivalent protection for employees working on a flat roof. Before the hearing, the Secretary sought to add alternative allegations under the personal-protective-equipment rule and the general duty clause. The judge denied the amendment and vacated the original guardrail citation, whose vacation the Secretary did not challenge. The two Commissioners disagreed over whether the amendment should have been allowed. Because the Commission lacked a third member, they affirmed the judge's order and gave it the precedential value of an unreviewed judge's decision. The citation remained vacated, and the release identifies no penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(d)(1); 29 C.F.R. § 1926.28(a); 29 U.S.C. § 654(a)(1)
• Outcome: The denial of the amendment and vacation of the original guardrail citation were affirmed.
• Key point: An evenly divided Commission left the judge's refusal to add alternative fall-protection charges in place.

Full text (OSHRC public release)

Docket No. 8860

SCHREIBER CORPORATION

OSHRC Docket No. 8860

Occupational Safety and Health Review Commission

December 7, 1977

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Before CLEARY, Chairman; BARNAKO, Commissioner.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

John Nagle, Assoc. Regional Solicitor

Thomas M. Reid, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The Secretary of Labor cited Schreiber Corporation for allegedly violating 29 C.F.R. 1926.500(d)(1) n1 by failing to equip a flat roof on which its employees were working with a standard guardrail or the equivalent.
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Before a hearing was held, the Secretary moved to amend the citation to allege that Schreiber's failure to provide any type of fall protection to the employees on the roof alternatively violated 29 C.F.R. 1926.28(a) n2 and 29 U.S.C. 654(a)(1). n3 Judge Sidney J. Goldstein denied the motion to amend, and vacated the citation as originally issued.
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The Secretary does not take exception to the Judge's decision insofar as it vacated the 29 C.F.R. 1926.500(d)(1) allegation.
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He contends, however, that the Judge erred in denying the motion to amend.

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n1 "Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent . . ."

n2 "The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees."

n3 "Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

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The Commission members are divided on whether the amendment should have been allowed.
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The Chairman would reverse the Judge's action, whereas Commissioner Barnako would affirm his action.
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Both rely upon their separate opinions in Tri-State Roofing and Sheet Metal Company, No. 16121 (Nov. 30, 1977), Kaw Roofing & Sheet Metal, Inc., 77 OSAHRC 159/B8, 5 BNA OSHC 1724, 1977-78 CCH OSHD para. 20,716 (No. 14774, 1977), and All-State Industries, Inc., 77 OSAHRC 175/A2, 5 BNA OSHC 1853, 1977-78 CCH OSHD para. 22,174 (No. 15522, 1977).

In order to fulfill the statutory purpose of expeditious adjudication, and in view of the absence of a third member since April 28, 1977, the members agree to resolve their impasse by affirming the Judge's order while according it the precedential value of an unreviewed Judge's decision.
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See Life Science Products Co., No. 14910 (November 11, 1977).

Accordingly, the Judge's decision is affirmed.
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