Robert B. REICH, United States Secretary of Labor, Petitioner, Cross-Respondent, v. TRINITY INDUSTRIES, INC., Respondent-Cross Petitioner, Occupational Safety and Health Review Commission, Respondent.
No. 92-2559
United States Court of Appeals, Eleventh Circuit
March 22, 1994
16 F.3d 1149
III. CONCLUSION
The Truth in Lending Act, now a quarter of a century old, manifested a change in federal policy from a philosophy of “Let the buyer beware” to one of “Let the seller disclose.” Mourning, 411 U.S. at 377, 93 S.Ct. at 1664. The burdens imposed on creditors are minimal, especially when compared to the harms that are avoided. The appellees’ actions in this case disregarded that policy. Consequently, the district court erred as a matter of law in holding that TILA had not been violated and granting the appellees’ cross-motion for summary judgment. The court also erred as a matter of law in denying Rodash‘s motion for summary judgment. The court‘s orders must be, and are, therefore, REVERSED, and the case is REMANDED for a disposition consistent with this decision. On remand, we instruct the district court to consider the issue of statutory damages.
John Shortall, U.S. Dept. of Labor, Washington, DC, for appellant.
Before HATCHETT and COX, Circuit Judges, and RONEY, Senior Circuit Judge.
HATCHETT, Circuit Judge:
The Secretary of Labor petitions this court for review of the Occupational Safety and Health Review Commission‘s determination that Trinity Industries, Inc. did not “willfully” violate
BACKGROUND
Noise at the work place is a serious health problem. E.g., 46 Fed.Reg. 4078 (January 16, 1981). In enacting the Occupational Safety and Health Act of 1970 (the Act), Con
Periodic audiometric testing makes it possible to determine hearing loss resulting from noise in the work place. An audiogram is a record of an individual‘s hearing sensitivity and indicates how intense or loud a sound must be before the individual perceives it. With periodic audiometric testing, it is possible to document hearing loss and implement protective measures to prevent further loss. Pursuant to
Trinity in 1983, and the Secretary upon inspection in 1987, found that employee noise exposures at the Jacksonville, Florida plant equaled or exceeded an eight hour time-weighted average of eighty-five decibels. Trinity‘s Corporate Environmental and Safety Director, Jerry Riddles, testified that Trinity performed noise tests at the Jacksonville plant in 1983 that resulted in readings that “the time-weighted average of employee exposure was over 85 dBA [decibels],” but decided not to provide monitoring as required.1 Riddles also testified that in 1983 Trinity was aware of OSHA‘s regulations under
As an alternative, Trinity required its production employees to wear hearing protection devices all the time regardless of noise levels at any particular time or place. Trinity reasoned that because noise levels in different parts of its plants varied from day-to-day depending on the particular job, and employees moved in and out of the noisier areas frequently, its alternative hearing conservation program was superior to the program outlined in OSHA regulations. According to Trinity, the hearing protectors attenuated employee exposure to below 75 decibels.
PROCEDURAL HISTORY
The Secretary brought this enforcement action against Trinity.
Trinity contested the citation, and on June 26, 1990, an administrative law judge (ALJ) determined that the Secretary erred in classifying the citation as “willful.” The ALJ determined that substantial evidence did not support the Secretary‘s finding, and labeled the citation as “nonserious.” The Secretary
The Commission rejected the Secretary‘s determination that the citation was willful and agreed with the ALJ that Trinity‘s violation was “other than serious,” based upon its findings that Trinity acted in good faith and the employees were “largely protected.” After the Commission‘s ruling, the Secretary filed this appeal. Trinity filed a cross-petition requesting that this court classify the citation as de minimis. The Secretary‘s motion to dismiss Trinity‘s cross-petition has been carried with the case.
CONTENTIONS OF THE PARTIES
The Secretary contends that the Commission improperly applied the law when determining that Trinity did not willfully violate the Act, and that Trinity‘s intentional disregard of OSHA‘s regulations constitutes a willful violation. The Secretary also contends that Trinity‘s cross-petition is untimely. Trinity contends that the Commission correctly determined that it did not willfully violate OSHA regulations. Trinity also contends that this court should consider its cross-petition as timely filed in the interests of justice.
ISSUES
This appeal presents the following issues: (1) whether the Commission properly applied the test for a “willful” violation as that term is used in
DISCUSSION
I. Willful violation
This court reviews the Commission‘s order to determine whether it is in accordance with the law. Horne Plumbing & Heating Co. v. OSHA, 528 F.2d 564, 567 (5th Cir.1976) (citing to
The Commission acknowledged that Trinity was aware of
Title
The definition of “willful” in this circuit is, in its simplest form, “an intentional disregard of, or plain indifference to, OSHA requirements.” Georgia Elec. Co. v. Marshall, 595 F.2d 309 (5th Cir.1979). Both parties agree that this is the proper definition and test for determining whether an employer “willfully” violated the Act. Trinity interprets this language as requiring a lack of good faith, or, stated in the inverse, a finding of good faith on the part of the employer precludes willfulness. Trinity argues that if an employer knows of OSHA regulations applicable to it, but considers compliance either not feasible or useless to protect its employees, the employer may disregard the regulations and create an alternative program in an attempt to accomplish
In Georgia Elec. Co., 595 F.2d at 309, the Fifth Circuit interpreted the term “willful” in
The Secretary of Labor ... urges us to adopt [the Commission‘s] definition of willful conduct. Under this definition, willful means an act done voluntarily, with either an intentional disregard of, or plain indifference to, OSHA requirements. General Electric Co., 1977, 5 OSHD ¶ 1448, 3 Empl. Safety & Health Guide (CCH) (1977-78 Occup. Safety and Health Dec.) ¶ 21,-853....
The majority of circuits that have considered the question of the meaning of willfulness have adopted the [Commission‘s] approach. For example, in Intercounty Construction Co. v. OSHRC, 522 F.2d 777 (4th Cir.1975), cert. denied, 423 U.S. 1072 (1976), the Fourth Circuit upheld a finding of a willful violation where an employer had failed to shore up a trench as required by OSHA regulation. The court emphasized the employer‘s disregard of the OSHA standard:
We agree with the position adopted by the Commission in interpreting the statute that “willful” means action taken knowledgeably by one subject to the statutory provisions in disregard of the action‘s legality. No showing of malicious intent is necessary.
. . . .
Regardless of any good faith belief that the work area remained safe, the fact is that the company knowingly chose not to comply with the OSHA regulations and requirements. That decision was a willful action in violation of the law.
In Western Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir.1978), cert. denied, 439 U.S. 965 (1978), the Eighth Circuit took much the same approach. The court rejected the employer‘s defense that although it had failed to comply with a particular OSHA standard, it had nevertheless met the “underlying purpose” of the standard:
Western‘s officials substituted their own judgment for the provisions of the standards and therefore cannot escape the conclusion that they acted voluntarily with either intentional disregard of, or plain indifference to, the requirements of the Act.
Id. at 143. Finding that the evidence showed a “conscious decision” not to use the required protective devices, the court held that this showed a willful violation of the OSHA standard.
Georgia Elec. Co., 595 F.2d at 317-18.
Thus, for OSHA purposes, we define a willful violation as one involving voluntary action, done either with an intentional disregard of, or plain indifference to, the requirements of the statute. Georgia Elec. Co., 595 F.2d at 319.
The language above repudiates and makes irrelevant the employer‘s good faith disregard of the regulations, or the employer‘s belief that its alternative program meets the objectives of OSHA‘s regulations. In this case, the Commission did just the opposite of what Georgia Elec. Co. dictates, and deemed of great importance Trinity‘s good faith disregard of
The Fifth Circuit rejected the employer‘s argument that a showing of bad purpose is necessary to support a finding of a willful violation. The court first reasoned that the definition of “willful” in itself rejects a requirement of a showing of bad purpose. The
Pursuant to
The Act provides a mechanism for an employer to avoid compliance with OSHA regulations and instead provide its own alternative program to accomplish the same goal as the regulations. This mechanism is a variance or exemption from OSHA‘s mandatory requirements for employers.
Any affected employer may apply to the Secretary for a rule or order for a variance from a standard promulgated under this section.... The Secretary shall issue such rule or order if he determines on the record ... that the proponent of the variance has demonstrated by a preponderance of the evidence that the ... methods ... used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard.
Trinity did not apply for a variance until August 15, 1988, about two months after the Secretary issued this citation. According to Trinity, it filed a request for variance from compliance with
If Trinity desired to implement and operate its alternative program within the law, Trinity should have sought a variance from the Secretary prior to the issuance of a citation. For a period of at least four years, Trinity was aware of OSHA requirements and the applicability of the requirements to its Jacksonville plant. We cannot excuse Trinity from failing to either comply with OSHA regulations or apply for a variance, based upon the pendency of other citations in the administrative and judicial systems.
In its briefs before this court, Trinity contends that compliance with
The Commission in its decision found that Trinity “provided no basis for not complying with the terms of the standard.” Inherent in this finding is the feasibility of compliance. The burden of showing infeasibility was on Trinity. “[W]here a specific duty standard contains the method by which the work hazard is to be abated, the burden of proof is on the employer to demonstrate that the remedy contained in the regulation is infeasible under the particular circumstances.” E.g., Ace Sheeting & Repair v. Occupational Safety and Health Review Commission, 555 F.2d 439, 441 (5th Cir.1977).
Trinity failed to present sufficient evidence to carry its burden of proof that it was infeasible to comply with
The Secretary established a prima facie violation of
Applying the test for “willful,” we agree with the Secretary that Trinity willfully violated the requirements of
II. Trinity‘s cross-petition
The Secretary contends this court should dismiss Trinity‘s cross-petition for lack of jurisdiction, based upon Trinity‘s failure to file its petition within the statutorily prescribed sixty-day period. Pursuant to
Trinity acknowledges untimely filing pursuant to
After weighing the relative benefits and detriments of an agency decision, a party may well decide that further litigation is not worthwhile because the adverse aspects of the decision do not outweigh the good—at least to any appreciable degree. Consequently, that party will choose not to ask for appellate review. However, if its adversary files a petition for review, the situation changes and poses a risk that the favorable aspects of the agency action may be eliminated by the appeal. At that point, sound strategy would dictate filing a cross-petition that would seek to eliminate the unfavorable aspects of the administrative decision. If, however, the adversary has waited until the last minute and there is no longer time for filing a cross-petition, the other party has been ‘sandbagged,’ whether inadvertently or otherwise. The only defense against such a scenario is the filing of a protective petition for review. That tactic should not be encouraged because it is inefficient and may, in fact, lead to appeals that otherwise would not have been taken.
Reich v. Occupational Safety and Health Review Commission, 998 F.2d 134, 137 (3d Cir.1993). We agree with the Third Circuit that failing to provide for a cross-appeal procedure in this situation, as exists in rule 4(a)(3), leads to wasteful and nonproductive litigation, and we “welcome an examination of this problem and possible resolution by the advisory committee on appellate rules.” Reich, 998 F.2d at 137. We dismiss Trinity‘s cross-petition for lack of jurisdiction. See e.g., Sundale Assoc., Ltd. v. City Nat‘l Bank of Miami, 786 F.2d 1456 (11th Cir.1986) (appeal dismissed as untimely).
CONCLUSION
We reverse the Commission‘s decision and remand to the Commission for a reassessment of penalties resulting from Trinity‘s willful violation of the Act. We dismiss Trinity‘s cross-petition for lack of jurisdiction.
REVERSED and REMANDED.
RONEY, Senior Circuit Judge, dissenting:
I respectfully dissent. The Commission‘s decision that Trinity‘s violation was not willful is based on its finding that Trinity did not disregard the hearing standards in good faith, but that Trinity interpreted the standards in good faith and believed, in light of that interpretation, that it was not in violation.
With this finding, the Commission correctly noted the controlling legal principle: good faith is sometimes relevant in determining whether an OSHA violation is willful. A violation is not willful, for example, “if the employer had a good faith opinion that the violation conformed to the requirement of the standard.” Donovan v. Mica Construction Co., 699 F.2d 431, 432 (8th Cir.1983). The obvious corollary to that rule, and the one the Commission applied in this case, is that a violation is not willful if an employer‘s reasonable interpretation of a regulation creates a good faith belief that it was not in violation. General Motors Corp., Electro Motive Div., 14 O.S.H.C. 2064 (BNA) (Rev.Comm.1991); see also McLaughlin v. Union Oil Co. of California, 869 F.2d 1039, 1047 (7th Cir.1989) (“A violation is not willful when it is based on a nonfrivolous interpretation of OSHA‘s regulations.“).
Although the court here asserts that this appeal “does not concern a situation where the employer argues that it had a good faith belief that its program complied with OSHA,” this is contrary to the findings of the Commission. Trinity‘s good faith belief that it met OSHA‘s requirements is, in fact, the key to this case. The Commission emphasized that the Secretary and Trinity had “an obvious difference of opinion as to how to comply with the standards.” It went on to explain that although Trinity knew its program did not comply literally with OSHA‘s regulation, the only reason for the variance was Trinity‘s good faith interpretation of the regulation, which led it to believe that under the circumstances literal compliance was not required to avoid a violation:
Trinity had a good-faith, though erroneous, belief that the only purpose of audiometric testing was to determine which employees had suffered a loss of hearing severe
enough to require hearing protection. Because its program required hearing protection before any loss occurred, Trinity believed that its program provided protection superior to that required by the Secretary, thereby rendering audiometric testing redundant and, therefore, unnecessary.
Thus the Commission found that Trinity had merely misinterpreted, not disregarded, the regulation.
In each case argued by the Secretary and relied on by the court, the employer either completely ignored the OSHA safety standards, Georgia Elec. Co. v. Marshall, 595 F.2d 309 (5th Cir.1979); Intercounty Construction Co. v. Occupational Safety & Health Rev. Comm., 522 F.2d 777 (4th Cir.1975), cert. denied, 423 U.S. 1072 (1976); Donovan v. Capital City Excavating Co., Inc., 712 F.2d 1008 (6th Cir.1983); F.X. Messina Const. Corp. v. Occupational Safety & Health Rev. Comm., 505 F.2d 701 (1st Cir.1974), implemented an alternative program that did not even remotely resemble those standards, Western Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir.), cert. denied, 439 U.S. 965 (1978), or unilaterally decreed the standard invalid, RSR Corp. v. Brock, 764 F.2d 355, 363 (5th Cir.1985). None involved the misinterpretation of a regulation. Rather, in each case the employers simply disregarded the regulation at issue. Such behavior was properly deemed willful notwithstanding any good faith belief that the employees were safe.
Here, in contrast, Trinity carefully considered the regulations and attempted to provide what, in its view, was greater worker protection than OSHA required. Trinity‘s goal was to create an environment where audiograms would be unnecessary because there was no high noise level exposure and therefore no need to monitor for hearing loss. Although this underestimates the purpose of the audiograms, it simply does not reflect a disregard of the regulations. The Commission recognized that not every knowing deviation from a regulation reflects disregard or indifference.
It is important to note that the Commission did not excuse Trinity‘s noncompliance. It rejected Trinity‘s argument that no citation was warranted, stating that an employer must comply fully with a regulation even if it believes it imposes an unnecessary requirement. The Commission merely determined that under the circumstances Trinity‘s violation was “other than serious“, not willful.
Because the Commission applied the correct rule of law in this case, the only question this Court should consider is whether there is substantial evidence supporting the Commission‘s conclusion that Trinity interpreted the regulation in good faith. In my view, the Commission‘s decision is amply supported and should be affirmed.
HATCHETT
Circuit Judge
Notes
A tax imposed by a state ... solely on a creditor is a finance charge if the creditor separately imposes the charge on the consumer. In contrast, a tax is not a finance charge (even if it is collected by the creditor) if applicable law imposes the tax:
- Solely on the consumer;
- On the creditor and the consumer jointly; or
- On the credit transaction, without indicating which party is liable for the tax.
A tax also is not a finance charge if applicable law imposes the tax solely on the creditor, but directs or authorizes the creditor to pass the tax on to the consumer. (For purposes of this section, if applicable law is silent as to such a pass-on, the law does not authorize the pass-on).
F.R.B. Commentary on