Public Utilities Maintenance, Inc. v. Secretary of Labor
417 F. App'x 58
| 2d Cir. | 2011Background
- PUMI challenges OSHRC’s November 2009/December 2009 order upholding a 29 C.F.R. § 1910.269(l)(2) violation for painting an energized transmission tower.
- Regulation at issue excludes construction work; PUMI argues painting constitutes maintenance, not construction, under § 1910.269(l)(2).
- Secretary’s interpretation of § 1910.269(l)(2) is consistent with OSHRC precedent that maintenance work may fall outside the construction definition.
- OSHA directive (2003) and a separate 1999 OSHA letter address painting as maintenance or construction, but the court emphasizes deference to formal rule interpretations over informal guidance.
- ALJ found constructive knowledge of the violative condition and that PUMI failed to implement safety rules; petition denied on substantial evidence review.
- Court reviews for substantial evidence and applies Chevron-like deference to Secretary’s interpretations of her regulations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1910.269(l)(2) applies to PUMI’s painting work | PUMI contends painting towers is maintenance, not construction | Secretary maintains painting near energized parts falls within MAD rule under § 1910.269(l)(2) | Yes, as interpreted, painting maintenance can fall within MAD |
| Whether PUMI had constructive knowledge of the violative condition | Mejia’s proximity and conditions suggested knowledge | ALJ’s finding supported by evidence of supervisory inattention | Substantial evidence supports constructive knowledge finding |
| Whether PUMI was entitled to the unpreventable employee misconduct defense | Safety rules were present and should absolve if enforcement was inadequate | Defense failed due to flawed implementation and monitoring | Defense not established; substantial evidence supports denial |
| Weight afforded to agency directives vs. formal interpretations | Directive supports maintenance vs construction | Secretary’s interpretation governs; directives carry lesser deference | Secretary’s interpretation entitled to weight; directives not controlling |
Key Cases Cited
- D.A. Collins Const. Co. v. Sec’y of Labor, 117 F.3d 691 (2d Cir. 1997) (substantial evidence standard for OSHRC findings)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S. 1951) (substantial evidence as the standard of review)
- Consol. Edison Co. v. NLRB, 305 U.S. 197 (U.S. 1938) (scope of agency interpretations; deference priority)
- In re Novartis Wage and Hour Litig., 611 F.3d 141 (2d Cir. 2010) (controlling deference to agency interpretations of regulations)
- Auer v. Robbins, 518 U.S. 452 (U.S. 1997) (deference to agency interpretations of regulations (Chevron-like))
- N.Y. State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98 (2d Cir. 1996) (constructive knowledge and reasonable diligence standard)