958 F.3d 501
6th Cir.2020Background
- Lake Building Products employed ironworkers 28 feet above ground who remained unanchored while a crane placed bundles of steel decking; the bundles would be connected to the structure weeks later.
- An OSHA compliance officer cited Lake Building for violating fall-protection rules; Lake contested and an ALJ upheld the citation, finding the workers were only “placing” (not both “placing and connecting”) and thus not "connectors."
- The Occupational Safety and Health Review Commission declined review, making the ALJ’s decision final; Lake petitioned to the Sixth Circuit.
- The regulation at issue, 29 C.F.R. § 1926.751, defines a “connector” as an employee “who, working with hoisting equipment, is placing and connecting structural members and/or components.”
- The Sixth Circuit agreed the regulation’s text is conjunctive (requires both placing and connecting) but found Lake lacked fair notice of the Commission’s interpretation given the regulation’s inartful drafting, prevailing industry practice, and administrative enforcement history.
- The court vacated the citation and penalty for lack of adequate notice, leaving any policy or safety concerns for OSHA or the Secretary to address.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of "placing and connecting" in § 1926.751 | "Placing and connecting" means either placing or connecting (disjunctive); workers placing decking are connectors | Phrase is conjunctive; a connector must both place and connect | Court: Text reads conjunctively; "and" is conjunctive here, so regulator intended both acts |
| Adequate notice of Commission's interpretation | Industry practice, training materials, and prior administrative rulings treated placers as connectors; employer lacked notice of the conjunctive reading | Employer is bound by valid regulatory interpretation and must follow the Commission's reading | Court: Employer lacked fair notice due to inartful drafting, industry understanding, and sparse enforcement; citation vacated |
Key Cases Cited
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (standard for deference to agency regulatory interpretation after exhausting traditional tools)
- OfficeMax Inc. v. United States, 428 F.3d 583 (6th Cir. 2008) (plain-meaning treatment of "and" versus "and/or")
- FTC v. Sun Oil Co., 371 U.S. 505 (1963) (construing usage of conjunctive and disjunctive connective language)
- Ohio Cast Prods., Inc. v. Occupational Safety & Health Review Comm'n, 246 F.3d 791 (6th Cir. 2001) (factors for determining whether employer had adequate notice of Commission interpretation)
- Diebold Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978) (fair-notice principles applied to administrative enforcement)