1984-1985 O.S.H.D. ( 27,390
William E. BROCK, Secretary of Labor, Petitioner,
v.
L.R. WILLSON & SONS, INC., Respondent, International
Association of Bridge, Structural and Ornamental
Iron Workers, et al., Intervenors.
No. 84-1471.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 10, 1985.
Decided Oct. 8, 1985.
Laura V. Fargas, Atty., Dept. of Labor, Washington, D.C., of the Bar of the Supreme Court of Pennsylvania, pro hac vice by special leave of the Court. Judith N. Macaluso, Asst. Counsel and Dominique Kirchner, Atty., Dept. of Labor, Washington, D.C., were on brief, for petitioner. Arthur J. Amchan, Atty., Dept. of Labor, Washington, D.C., also entered an appearance for petitioner.
Edward S. Dorsey, Baltimore, Md., for respondent.
Elihu I. Leifer, Washington, D.C., for intervenors.
Before WALD, EDWARDS and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
The Secretary of Labor petitions here for review of an order issued by the Occupational Safety and Health Review Commission ("OSHRC" or "Commission") under the Occupational Safety and Health Act ("OSHA"), 29 U.S.C. Secs. 651-78 (1982), vacating a citation issued to L.R. Willson & Sons, Inc. ("Willson") for failure to use perimeter netting to protect against exterior falls on a structural steel erection site in violation of 29 C.F.R. Sec. 1926.105(a) (1984) [hereinafter Sec. .105(a) ]. We find that the Commission misconstrued our decision in L.R. Willson & Sons, Inc. v. Donovan,
I. BACKGROUND
On July 17 and 21, 1980, OSHA Compliance Officer John Wiseman inspected a construction site at 9th and G Streets in Washington, D.C. where Willson was performing steel erection work on the YWCA building. Wiseman observed two employees at the perimeter of the building, approximately ninety and one hundred feet above the ground, who were not wearing safety belts or otherwise protected from the dangers of exterior falls by perimeter netting. A temporary steel floor was in place at the eighth floor level, one and two floors below the two employees, but the deck did not extend beyond the perimeter of the building. The employees were "connectors," ironworkers who climb vertical steel columns where horizontal steel beams are lifted up to them with a crane. They guide the beams into place, bolt them, and then climb out on the beams in order to release the line connecting the beam to the crane.1 Connectors cannot wear safety belts while connecting because they need mobility in order to avoid being struck and injured by the beams.
As a result of the inspection, Willson was issued a number of citations, only one of which is involved here. That citation charged Willson with a serious violation of a general construction industry standard, 29 C.F.R. Sec. 1926.105(a) (1984), which requires that "[s]afety nets shall be provided when workplaces are more than 25 feet above the ground ... where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical." A serious violation exists when "there is a substantial probability that death or serious physical harm could result" from the violation. 29 U.S.C. Sec. 666(k) (1982).
The administrative law judge (ALJ) chose not to decide the question of whether 29 C.F.R. Sec. 1926.750(b) (1984) [hereinafter Sec. .750(b) ], a fall protection regulation under the Subpart R steel erection standards,2 preempted enforcement of the more general construction industry standard in Sec. .105(a). Instead, he concluded that the two standards, "when construed separately and together ... [do not] provide a steel erector with fair warning that he must obey the general standard by installing so-called perimeter nets." A. at 20. The ALJ's notice analysis also rested in part on voluminous record evidence which he felt raised a concern that "lack of enforcement [of Sec. .105(a) ] lulled the industry into a false sense of security." A. at 35. Alternatively, the ALJ found that if Willson was on notice that Sec. .105(a) applied, the company had complied with the regulation by installing temporary floors. A. at 38.
OSHRC affirmed the ALJ's decision to vacate the citation, but on different grounds. L.R. Willson & Sons, Inc., 11 O.S.H.Cas. (BNA) 2182 (Rev.Comm'n 1984). First, the Commission concluded that steel erection standard Sec. .750(b) was specifically applicable to the hazard of falling and so preempted enforcement of the general construction standard Sec. .105(a). Id. at 2184. OSHRC acknowledged that its conclusion was contrary to this court's decision in Willson I, and so went on to assume that Sec. .105(a) applied. Purportedly basing its interpretation of Sec. .105(a) on Willson I, the Commission held that use of one of the listed safety devices was "impractical," so as to require use of perimeter netting, only if the device did not provide protection during a substantial portion of the work day. Id. at 2184-85. Using this rationale, the Commission affirmed the ALJ's vacation of the citation, finding that the Secretary had not met his burden of proving the violation because he presented almost "no evidence which would indicate the amount of time during the work day that the employees would work on the outside perimeter." Id. at 2185.
This petition for review followed.
II. APPLICABILITY OF Sec. .105(a)
OSHRC's first ground for vacating the citation was that Sec. .105(a) does not apply to fall hazards in the steel erection industry. The rules of preemption, as specified in OSHA regulations, provide that a general construction standard like Sec. .105(a) applies to steel erectors unless another standard is specifically applicable to the same hazard. 29 C.F.R. Sec. 1910.5(c) (1985).3 In three decisions handed down the same day, OSHRC held that Sec. .105(a) may not be applied in the steel erection industry because a Subpart R steel erection standard, 29 C.F.R. Sec. 1926.750(b) (1984), is specifically applicable to the hazard of falling. Willson, 11 O.S.H.Cas. at 2184; Adams Steel Erection, Inc., 11 O.S.H.Cas. (BNA) 2073, 2074-79 (Rev.Comm'n 1984), rev'd sub nom. Donovan v. Adams Steel Erection, Inc.,
While it is not clear whether Willson is even defending this portion of OSHRC's decision any longer, we address the issue briefly in order to permanently lay to rest any doubts the company and the Commission may have as to which regulation governs exterior fall hazards in the steel erection industry. Willson, respondent here and petitioner in Willson I, argued in both instances that Sec. .750(b)(1)(ii) was more specific and preempted the general construction industry standard. In Willson I this court found that Sec. .105(a) was the applicable standard, rejecting the company's argument because "[a] general standard is not preempted unless a specific standard sets forth the measures that an employer must take to protect employees from a particular hazard."
On July 20, 1984, however, the Commission announced that it had changed its mind about which regulation governed exterior fall hazards in the steel erection industry. In reviewing the Commission's position as applied in this case, we recognize that an agency is entitled to change course if it gives a principled and rational reason for the reversal. Greyhound Corp. v. ICC,
The Commission's reasoning has already been rejected by appellate courts reviewing the other two Sec. .105(a) steel erection cases handed down the same day as Willson. Adams Steel,
III. INTERPRETATION OF Sec. .105(a)
Our task here is to assess whether OSHRC's decision to vacate the citation against Willson was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A) (1982). The first step is to decide whether OSHRC correctly interpreted Sec. .105(a) as applied to the steel erection industry. As in all OSHA cases, we abide by "the wellsettled principle that the Act is to be construed liberally to effectuate its purpose of 'assur[ing] so far as possible ... safe ... working conditions.' " Willson I,
Section .105(a) requires the use of perimeter netting only when the other listed safety devices are "impractical" to use. OSHRC, purportedly relying on our decision in Willson I, concluded that the Secretary had failed to prove that temporary floors, one of the listed safety devices, were impractical in this case. OSHRC interpreted Willson I to hold that a safety device is impractical only if the Secretary proves that the device did not provide protection during a substantial portion of the work day. Thus, it reasoned, temporary floors were impractical only if employees spent a substantial portion of the work day at the perimeter of the building, a conclusion the Commission said it could not draw from the evidence in the record. 11 O.S.H.Cas. at 2184-85. The analysis which follows explains how OSHRC's reasoning misinterpreted this court's decision in Willson I.
A. The "Not Actually Used" Test
The Willson I court found that Sec. .105(a)'s requirement of perimeter netting was triggered where the listed safety devices were "impractical," meaning "both 'not practical' and 'not actually used.' "
Courts have similarly held that the Secretary meets his burden under Sec. .105(a) with a showing that none of the listed devices was actually used. Cleveland Consol., Inc. v. OSHRC,
[T]he regulation contemplates that one of the listed safety devices will be used when the described danger of height is involved.... [T]he standard is not intended to point out escape routes by which no device need be used if one of the alternative devices can be shown to be practical even though not in fact used.
Southern Colo. Prestress Co. v. OSHRC,
OSHRC did not analyze Sec. .105(a) in terms of the "not actually used" test, although the Secretary contends that this is the applicable standard. Willson's argument, implicitly adopted by the Commission, is that temporary floors--one of the listed devices--were used. What the company--and the Commission--have overlooked is that Sec. .105(a) applies to the steel erection industry only in part. A more specific regulation, Sec. .750(b), continues to govern interior fall hazards at steel erection sites. In applying the "not actually used" test when Sec. .105(a) has been partially preempted, the question to be asked is whether one of the listed devices designed to protect against the cited hazard was actually used.
This interpretation of the word "impractical" as refined by the "not actually used" test is supported by both the Willson I preemption analysis and by prior interpretations of Sec. .105(a). Because more general standards only apply "to the extent that none of such particular standards applies," 29 C.F.R. Sec. 1910.5(c)(2) (1985) (emphasis added), the Willson I court held that the issue in preemption analysis "is not whether Subpart R [on steel erection] provides any exterior fall protection standards, but rather whether it provides standards to guard against the particular exterior fall hazard for which Willson was cited,"
Prior interpretations of Sec. .105(a) also support a reading that focuses on the ability of a listed device to provide protection against the cited fall hazard. The Commission has acknowledged that Sec. .105(a) "is not satisfied simply by the use of one of the devices listed in that section without regard to whether such use provides adequate fall protection to employees." National Indus. Constructors, Inc., 9 O.S.H.Cas. (BNA) 1871, 1872 (Rev. Comm'n 1981). Accord OSHA Instruction STD 3-3.1 (July 18, 1983), reprinted in [1982-83 Developments] Empl. Safety & Health Guide (CCH) p 12,855 at 17,165 (Secretary's enforcement directive which specifies that "[t]he requirements of [Sec. .105(a) ] are met only if use of one of the listed devices provides adequate fall protection to employees."). Adequate fall protection has not been provided merely because one of the listed devices has been used. Morgan & Culpepper, Inc. v. OSHRC,
The easiest way to analyze Sec. .105(a) when it has been partially preempted by Sec. .750(b) is to cross off the Sec. .105(a) list those safety devices which do not protect against the cited hazard, in this case exterior falls from above temporary floors. While no other court has explicitly used this methodology of crossing devices such as temporary floors off the Sec. .105(a) list, other decisions have adopted this interpretation sub silentio by finding Sec. .105(a) violations by steel erectors even though temporary flooring was being used. Donovan v. Adams Steel Erection, Inc.,
Temporary floors are effectively omitted from the Sec. .105(a) list when that regulation is cited in response to an exterior fall hazard in the steel erection industry, because such floors only protect against interior falls. Because none of the other devices listed in Sec. .105(a) were actually used to protect against exterior fall hazards, see infra at 1388, Willson violated Sec. .105(a).
B. The "Substantial Portion of the Work Day" Test
OSHRC did not undertake this type of analysis to determine whether any of the safety devices listed in Sec. .105(a) were actually used to protect against the hazard for which Willson was cited. Instead, the Commission treated temporary floors as being actually used and looked to the other portion of the Willson I definition of impractical. Actual use alone does not fulfill the requirements of Sec. .105(a) so as to excuse an employer from using safety nets: the protection device used must also be "practical." The court in Willson I held that whether the safety belts used in that case were practical as protective devices depended on the amount of time during the work day that they could be used. The court's conclusion was that "the inability to use safety belts during a significant period of the work day renders them 'impractical' within the meaning of section .105(a)."
OSHRC misinterpreted the "substantial portion of the work day" test, id., by applying it where no listed device was actually used. The test was applied in Willson I only because there was evidence in the record that one of the listed devices which could protect against exterior fall hazards--safety belts--was actually being used. The "substantial portion of the work day" test plays no role when no exterior fall protection device is actually used; as explained previously, see supra at p. 1383, the Secretary makes a prima facie case of a Sec. .105(a) violation just by showing that no such devices were used. The Commission therefore erred in requiring the Secretary to go beyond its showing that no exterior fall protection devices were actually used and prove that employees were exposed to exterior fall hazards for a substantial portion of the work day.
OSHRC's interpretation of Sec. .105(a) allows employers to expose employees to exterior fall hazards without providing any form of protection as long as the hazard does not exist for a substantial portion of the work day. While the Willson I court rejected the Secretary's argument that Sec. .105(a) requires employers "to provide continuous fall protection by means of a combination of the fall protection devices listed therein,"
The Commission's decision effectively excuses employers from the requirement of providing one of the listed devices if the exterior fall hazard happens to be of short duration. This interpretation of Sec. .105(a) is not supported by the language of the regulation, which requires the use of one of the listed devices without regard to the duration of the fall hazard.9 Such an interpretation has correctly been rejected by the Fifth Circuit. Morgan & Culpepper, Inc. v. OSHRC,
This court has not applied the "substantial portion of the work day" test of impracticability when no protection has been provided against exterior falls; thus, we recently affirmed a citation under Sec. .105(a) without discussing the test or the duration of the hazard. Williams Enterprises,
IV. NOTICE
Willson argues that the company "did not have reasonable notice as to the Secretary's interpretation of the requirements of Section 105(a) ... [because] despite the fact that the use of perimeter nets by steel erectors nationwide has been limited to a few construction projects, the Secretary has not enforced the interpretation of the regulations he advances here." Willson Brief at 9 n. 6. The ALJ had similarly based its decision vacating the citation on Willson's lack of notice, finding both that Sec. .105(a) was too vague when read together with Sec. .750(b) to provide adequate notice, A. at 20, 37-38, and that "lack of enforcement lulled the industry into a false sense of security," id. at 35. Willson's notice argument, while made only sketchily, seems to involve two separate claims. The first contention is that Sec. .105(a) is too vague, either facially or when read in conjunction with Sec. .750(b), to provide adequate notice. The second argument is that the Secretary's failure to apply his interpretation of Sec. .105(a) to the steel erection industry in the face of widespread non-compliance with that regulation deprived Willson of adequate notice. We reject both of these arguments and find that Willson had both actual and constructive notice that Sec. .105(a) applied in the steel erection industry and required use of one of the appropriate listed devices to protect against exterior falls.
Willson had actual notice that Sec. .105(a) required steel erectors to provide exterior fall protection because of a previous citation and an earlier inspection. The same company that is the respondent here was the petitioner in Willson I and received the Sec. .105(a) citation at issue in that case several months before the July, 1980, inspection in this case. See Willson I,
Willson did not have to be on actual notice, however, because "[t]he constitution does not demand that the employer be actually aware that the regulation is applicable to his conduct." Faultless Div. v. Secretary of Labor,
Willson's argument that the industry's practice was not to use perimeter netting alludes to cases in which courts have remedied facial vagueness in OSHA standards by looking to industry custom and practice in order to derive a standard of conduct as to which the employer had notice. These courts have, however, used this practice "only when a specific standard of expected employer conduct is proposed to be derived from a very general statutory or regulatory command." Faultless,
If Willson is arguing that widespread industry practice or the Secretary's failure to enforce the regulation in effect bars enforcement of Sec. .105(a) against the company, we soundly reject that argument. Even in cases in which industry practice is considered in interpreting OSHA standards, that practice is not dispositive when the industry has failed to provide necessary protections. This court has warned that it will act " 'to prevent an industry, which fails to take sufficient precautionary measures against hazardous conditions, from subverting the underlying purposes of the Act.' " L.R. Willson & Sons, Inc. v. OSHRC,
[T]he argument for reliance on industry practice would permit employers to avoid compliance with specific safety mandates by relying on the (perhaps equally objectionable) practices of their peers. Nothing in the OSH Act or its legislative history requires or permits the Secretary to await an industry consensus about unsafe conditions before moving to enforce.
Faultless,
V. CONCLUSION
This court can instruct OSHRC to reinstate the citation, rather than remanding for further proceedings, if only one conclusion is supportable on the record before us. Donovan v. Stafford Constr. Co.,
In fact, the record establishes a violation of Sec. .105(a) even if we accept Willson's completely unsupported allegation that safety belts are practical when connectors are at the perimeter but not actually doing connecting, because belts were not actually used. In fact, this record is devoid of any evidence that any protection against exterior falls was ever accorded to connectors. Perimeter nets were never used. The ALJ found that "perimeter nets were not in use at the worksite," A. at 21, and Willson's superintendents told the OSHA inspector that there was no netting at the job site, A. at 82. Nor is there any record evidence that safety belts were ever worn by connectors. Both OSHA inspector John Wiseman and Willson Vice President of Operations James Willson testified that it was not safe for connectors to use safety belts while connecting because they need mobility to avoid being injured by steel beams. A. at 81-82, 139-41. Wiseman also testified that the two connectors he saw at the perimeter of the building were not wearing safety belts. A. at 68. The only conclusion to be drawn from this record is that the sole fall protection device in use at the job site was temporary flooring, which does not provide protection against exterior falls.
Willson was cited for a serious violation of Sec. .105(a). A serious violation exists "if there is a substantial probability that death or serious physical harm could result." 29 U.S.C. Sec. 666(k) (1982). This court has recently affirmed that the Secretary has the burden of establishing the seriousness of a violation and that OSHRC's determination as to seriousness controls " '[i]f evidence is presented that a practice could eventuate in serious physical harm upon other than a freakish or utterly implausible occurrence of circumstances.' " Simplex Time Recorder Co. v. Secretary of Labor,
The citation alleging a serious violation of 29 C.F.R. Sec. 1926.105(a) is supported by substantial evidence in the record from which only one conclusion can be drawn and it must therefore be reinstated.13 The Secretary has proven that Willson created a substantial probability that a worker would suffer death or serious physical harm by failing to provide any protection against exterior falls from a workplace more than 25 feet above the ground. The citation vacated by OSHRC is hereby remanded with directions that it be reinstated, and the petition for review is
Granted.
Notes
Wiseman testified that, while he was not certain what the men were doing at the time of observation, he was sure that they were connectors and he assumed they had been connecting at the perimeter of the building since he also observed that steel beams had in fact been connected there. Appendix ("A.") at 111, 114
The regulation provides that "[o]n buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet." 29 C.F.R. Sec. 1926.750(b)(1)(ii) (1984). Another subsection requires the use of a tightly planked and substantial floor within two stories or 30 feet below erection work and provides that Sec. .750(b)(1)(ii) applies where such a floor is not practicable. 29 C.F.R. Sec. 1926.750(b)(2)(i) (1984)
The Secretary has promulgated regulations on the applicability of standards which provide that
(1) If a particular standard is specifically applicable to a condition ... it shall prevail over any different general standard which might otherwise be applicable to the same condition....
(2) On the other hand, any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry, as in ... Subpart R of this part, to the extent that none of such particular standards applies.
C.F.R. Sec. 1910.5(c) (1985)
The Willson I court restricted its analysis to exterior falls from above the level of temporary floors, excluding exterior falls while standing on temporary floors because one subsection of Sec. .750(b), 29 C.F.R. Sec. 1926.750(b)(1)(iii) (1984), requires use of railings at the perimeter of temporary floors which would provide exterior fall protection for workers standing on the floor. Willson I,
The two cases on which the Commission relied, Daniel Int'l Corp. v. Donovan,
In Williams Enterprises, 11 O.S.H.Cas. at 1416, the Commission found "nothing in the steel erection standards which suggests that the Secretary intended to deny to steel erectors feasible protection otherwise available, that is, available outside Subpart R, against falling ... to the ground outside a building." Fifteen months later, however, the Commission mysteriously concluded that "[t]he absence of a specific perimeter safety net requirement in subpart R may well have been the result of a deliberate decision by the drafters of subpart R not to require such protection." Adams Steel, 11 O.S.H.Cas. at 2077. We agree with the dissent by Commissioner Cleary in Adams Steel and with the Third Circuit panel opinion that the Commission was right the first time and there is no evidence that the Secretary intended to leave steel erectors so unprotected. Id. at 2084 (Comm'r Cleary, dissenting); Adams Steel,
Appellate courts have split as to whether the Secretary or OSHRC is entitled to deference when their respective interpretations of a regulation differ. The Fourth, Sixth, Eighth and possibly Second Circuits favor the Commission; the First, Fifth, and Tenth Circuits favor the Secretary. See discussion in Donovan v. A. Amorello & Sons, Inc.,
In both Daniel Marr and Williams Enterprises the temporary flooring did not adequately protect against interior falls of over 25 feet and in both cases the employers were also cited under Sec. .750(b) for interior fall hazards. Daniel Marr,
Although there is no exception to Sec. .105(a) for fall hazards of short duration, there is a de minimis exception built into all OSHA regulations by the Act, which provides that the Secretary may issue notices instead of citations "with respect to de minimis violations which have no direct or immediate relationship to safety or health." 29 U.S.C. Sec. 658(a) (1982). Such a notice acknowledges that a violation has occurred without requiring abatement or imposing a penalty. Donovan v. Daniel Constr. Co.,
We express no opinion as to whether the Commission properly interpreted the "substantial portion of the work day" test by looking at the portion of the entire work day rather than the time during the work day when employees were actually exposed to an exterior fall hazard
The court did, however, urge the Secretary to clarify Sec. .105(a) by issuing a program directive. Willson I,
This court can rule on the seriousness of the violation although neither the ALJ nor OSHRC reached the issue, because we are convinced that "a remand on this issue would serve no purpose ... [and] that only one conclusion would be supportable." Stafford Construction,
Willson apparently raised some affirmative defenses in the proceeding below, but did not argue them to this court. Even if the company had claimed any affirmative defenses, its claims could not be supported on this record. Cf. Stafford Construction,