Pursuant to 29 U.S.C. § 660(b), the Secretary of Labor invokes this Court's review of a final order of the Occupational Safety and Health Review Commission which found that the respondent company below had not violated the regulation promulgated in 29 C.F.R. 1926.-105(a). We affirm.
In June 1972, the Department of Labor sent a safety and health compliance officer to inspect the site where respondent Bounds' company was engaged in construction work on the St. Dominic Hospital addition in Jackson, Mississippi.
The inspecting officer based his allegations on the conditions in which a welder and a hoist operator were working. Both employees were working at heights estimated at 40 or 50 feet, and conceded therefore to be above 25 feet. The welder was working on a mobile scaffold near the edge of the structure. There was conflicting testimony as to whether there was anything used to prevent the scaffold from falling off the edge. The hoist operator was working on the roof. Although he did not have a safety belt or line, a rope attached to the hoist was tied around his waist. The gist of the Secretary's complaint is that both employees "were essentially unprotected from falls of 40-50 feet, . . . ."
The order of the Commission found as follows:
The Commission also said:
The Secretary addresses this point to the Commission's findings: "In referring to scaffolds and temporary floors the regulation obviously contemplates ones which serve the function of preventing falls, . . ."
It is manifest throughout the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678, that the purpose of the Act is to protect the health and safety of workers and to improve physical working conditions. See especially 29 U.S.C. § 651; see also 1970 U.S.Code Cong. and Adm.News 5177 for the legislative history. The difficulty in the present case arises from the use in regulation 1926.-105(a) of the imprecise term "impractical." We read the Commission's interpretation of the regulation as equivalent to finding that if ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are used, then a safety net is not required by 1926.105. The term "impractical" is simply not precise enough to be synonymous either with absence of use of the other devices or with ineffective use of them. The respondent company below used scaffolds and temporary or permanent floors, yet some of the employees were allegedly exposed to the risk of falling. The Secretary asserts that "It should further be
We decline the invitation of the Commission to resolve at this time the conflict between the Secretary of Labor and the Commission as to their respective rights, powers, duties, and responsibilities, see Brennan v. Occupational Safety and Health Review Commission and Brent Towing Co., Inc., 5 Cir., 1973, 481 F.2d 619, since such a determination is not necessary to our decision herein.