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• Standard Number: 1926.451(g)(3)

November 22, 1988
MEMORANDUM FOR THE SOLICITOR
 
FROM: CYNTHIA L. ATTWOOD
  Associate Solicitor for Occupational
  Safety and Health Division
 
SUBJECT: Favorable Decision in Fluor Constructors, Inc.
  v. OSHRC, No. 87-4029 (6th Cir., Nov. 16, 1988)

On November 16, 1988, the Sixth Circuit affirmed an Occupational Safety and Health Review Commission decision holding that Fluor Constructors violated the OSH Act by failing to provide construction employees working from a boatswain's chair 60 feet above concrete floors with independent lifelines. A lifeline is a long vertically hung independent line to which a lanyard may be attached. The company had argued that a six-foot lanyard it provided was a "lifeline" or its equivalent, and that the standard did not give fair notice that a six-foot lanyard was not acceptable means of compliance. After an administrative law hearing a Commission judge agreed with the Secretary that both OSHA's standards and industry custom and practice plainly distinguish between lifelines and lanyards and that Fluor's six-foot lanyard was not a lifeline or its equivalent.

The court affirmed the Commission's interpretation of the standard on the ground that it was reasonable interpretation consistent with the remedial purpose of the OSH Act. It rejected Fluor's argument that the standard did not give fair notice of what it meant, stating that common sense and construction industry practice should have led Fluor to a proper interpretation. Even if Fluor had genuine doubt whether the standard allowed use of a lanyard, Fluor should not have selected a lanyard instead of a lifeline, since it was clear that a lifeline was more protective: "If in doubt as to the nature of the lifeline requirement Fluor should have taken the safer position and installed separate lifelines . . . or at least inquired of OSHA through its free on-site consultation program or made a written inquiry to clear up any uncertainties." Slip op. at 10.


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