Brennan v. Verne-Woodrow Co.

494 F.2d 1181, 1 BNA OSHC 1745, 1974 CCH OSHD 17,934, 1974 U.S. App. LEXIS 8442

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 28, 1974
• Docket: No. 73-3134
• Status: Published

Opinion

PER CURIAM:

This appeal¹ is taken from a final order of the Occupational Safety and Health Review Commission, vacating a citation and proposed penalty issued by the Secretary of Labor against Verne-Woodrow Company for violating 29 C. F.R. 1926.105(a).² We reverse.

This ease is controlled by our decision in Brennan v. Southern Contractors Service Company and Occupational Safety and Health Review Commission, 492 F.2d 498 (5th Cir. 1974). There, as here, it was uncontroverted that the employer had failed to provide its employees working at a height over 25 feet above ground with one of the safety devices listed in 29 C.F.R. 1926.105(a). There, as here, the Secretary’s expert witness testified the use of safety belts was practical at the employment site. And finally, there, as here, the Commission countermanded the Secretary, holding that where it is practical to use a safety belt, an employer who fails to do so nevertheless is not in violation of 29 C.F.R. 1926.105(a). This court having previously rejected the 'Commission’s strained construction of the regulation in Southern Contractors, we are compelled to reject it now.

Accordingly, the order of the Commission is reversed and the case is remanded with directions to reinstate the citation and penalty imposed by the Secretary of Labor.

Reversed and remanded with directions.

1 . This appeal is authorized by 29 U.S.C. § 660(b) (Supp.1972-73).

2 . 29 C.F.R. 1926.105(a) (1973) provides as follows:

“(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.”