E & R Erectors, Inc. v. Secretary of Labor

• Decision Date: 10 January 1997
• Docket Number: No. 96-3276,96-3276
• Citation: 107 F.3d 157
• Parties: 17 O.S.H. Cas. (BNA) 1903, 1997 O.S.H.D. (CCH) P 31,252 E & R ERECTORS, INC., Petitioner, v. SECRETARY OF LABOR, Respondent. . Submitted under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 157

107 F.3d 157

17 O.S.H. Cas. (BNA) 1903, 1997 O.S.H.D. (CCH)

P 31,252

E & R ERECTORS, INC., Petitioner, v. SECRETARY OF LABOR, Respondent.

No. 96-3276.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit LAR 34.1(a)

January 10, 1997.

Decided Feb. 20, 1997.

John Philip Diefenderfer, Esquire, Quakertown, PA, for Petitioner.

J. Davitt McAteer, Solicitor of Labor, Joseph M. Woodward, Associate Solicitor for Occupational Safety and Health, Barbara Werthmann, Counsel for Appellate Litigation, Edward O. Falkowski, Attorney, U.S. Department of Labor, Washington, D.C., for Respondent.

Before COWEN, ALITO, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

E & R Erectors, Inc. ("E & R") has petitioned this court for review of two citations and the accompanying penalty imposed upon it by the Occupational Safety and Health Review Commission ("Commission"). E & R argues that the Administrative Law Judge ("ALJ") erred in finding that E & R was the responsible employer on the worksite when the alleged violations occurred and also erred in finding that there was sufficient evidence to show that these violations did in fact occur. Equally important is the legal question raised by the Petitioner as to who bears the burden of proof when an employer claims that compliance with an Occupational Safety and Health Administration ("OSHA") regulation would create a greater hazard that would excuse non-compliance. The ALJ's decision ultimately became the final order of the Commission. We perceive no merit to E & R's numerous contentions and, therefore, deny the Petition for Review.

I.

On December 1, 1994, OSHA compliance officer George Boyd inspected a construction worksite in West Conshohocken, Pennsylvania, where a seven-story office building was being erected. The first three levels of the building were to serve as a parking garage; the four highest levels were designed for office space. At the time of Boyd's inspection, four levels had been constructed: the lowest three levels for parking and the first office level (labeled B-1 in the blueprints).

Immediately upon entering the site, Boyd observed that the area surrounding the counterweight of a large crane had not been barricaded or flagged off, as is required by federal regulations. ¹ At the same time, Boyd saw an employee standing in the counterweight's swing area. Boyd videotaped the area and then introduced himself to the two employees operating the crane. One of the crane operators identified himself as an employee of E & R. Boyd told them that the area surrounding the crane's counterweight had to be barricaded according to federal regulations. The employees immediately put up flagging around the area.

Boyd then proceeded to the construction building and spoke with Fred Little, the superintendent on the job site for the general contractor, John McQuade Construction. Little told Boyd that the ironworkers on the site were employees of E & R. Following this conversation, Boyd went to the B-1 level of the building and spoke with two of the ironworkers working on this level. They introduced him to their foreman, who identified himself as Mr. Brown, an employee of E & R. The foreman also gave Boyd the address and telephone number of E & R Erectors, and told Boyd that E & R employed an aggregate of 40 persons.

Boyd found that the ironworkers were installing large steel columns on the B-1 level of the building, and the installation process required that they stand near the edge of the open-sided floor on that level while guiding the columns into place. Temporary guardrails had been constructed around the perimeter of the level; these guardrails had been removed in the area of the southeast corner of the structure for installation of the columns. The ironworkers told Boyd that they didn't use any fall protection while installing the columns. ²

Boyd estimated the distance from the B-1 level to the ground to be between 29 and 33 feet; E & R insisted that the distance was only 24 feet. Federal regulations require that fall protection be provided if the distance is greater than 25 feet. ³ Therefore, Boyd determined that E & R was in violation of these safety regulations and that a citation should be issued for this violation.

On December 6, 1994, Boyd returned to the construction site and witnessed a man walking through the area which had been flagged off for the crane's counterweight swing radius. This man introduced himself to Boyd as Walter Cantley, and informed Boyd that he was E & R's superintendent. Cantley was also present at the closing conference held that day regarding the violations of federal safety regulations.

OSHA formally cited E & R on December 22, 1994, for three violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ("OSH Act") and its accompanying regulations. The citation for one violation was subsequently withdrawn. E & R contested the two remaining citations and a Commission ALJ held a hearing in September, 1995.

The ALJ found that E & R was the responsible employer at the site at the time of the violations and that sufficient proof of the two violations had been established. Therefore, the ALJ affirmed both the citations and the proposed penalty (a $ 3,000 fine). E & R petitioned the full Commission for discretionary review of the ALJ's order. The Commission denied review, and the ALJ's ruling became the final order of the Commission, pursuant to 29 U.S.C. § 661(j).

II.

The Commission had jurisdiction to adjudicate this matter pursuant to § 10(c) of the OSH Act, 29 U.S.C. § 659(c). This court has jurisdiction over this matter pursuant to 29 U.S.C. § 660(a), which gives the circuit in which the violation occurred jurisdiction to hear an appeal from the final order of the Commission.

Under the OSH Act, the findings of the Commission with respect to questions of fact shall be conclusive if supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 660(a); Martin v. Bally's Park Place Hotel & Casino, 983 F.2d 1252, 1256 (3d Cir.1993). Legal conclusions may be set aside if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A); Atlantic & Gulf Stevedores, Inc. v. Occupational Safety & Health Review Comm'n, 534 F.2d 541, 547 (3d Cir.1976). The Secretary's reasonable legal interpretation of the OSH Act, a statute the Secretary is charged with administering, is entitled to deference. Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 150, 111 S.Ct. 1171, 1175-76, 113 L.Ed.2d 117 (1991). In light of the OSH Act's broad remedial purpose, the Act and regulations issued pursuant to it should be liberally construed so as to afford the broadest possible protection to workers. Whirlpool Corp. v. Marshall, 445 U.S. 1, 12-13, 100 S.Ct. 883, 890-91, 63 L.Ed.2d 154 (1980).

A.

E & R first challenges the sufficiency of the evidence upon which the ALJ relied in concluding that E & R was on the worksite and employed the ironworkers charged with these violations. E & R asserts that the ALJ credited hearsay testimony over direct testimonial and documentary evidence, and that the ALJ erred in so doing. The ALJ however, is entitled to consider all admissible evidence in reaching his factual determination, and this finding will be sustained if there is substantial evidence in the record as a whole to support it.

E & R first asserts that OSHA failed to verify the identity of the ironworkers on the worksite and that it therefore has not satisfied its burden on this issue. The only evidence presented by the Secretary of Labor was the testimony of the OSHA compliance officer, George Boyd. Boyd testified that he inquired who employed the ironworkers to determine the identity of the responsible employer. Fred Little, the general contractor's superintendent, and Brown, the foreman of the ironworkers, both informed him that the ironworkers were employed by E & R Erectors. Additionally, Boyd testified that he spoke to Walter Cantley, E & R's superintendent, at the job site on December 6, a few days after the alleged violations, and that Cantley was present at the conference later that day relating to the violations. E & R is correct when it contends that this testimony was hearsay evidence. However, E & R failed to object to this evidence at the administrative hearing and it was therefore admissible as evidence. Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 251-52, 56 L.Ed. 500 (1912) ("[W]hen [hearsay evidence] is admitted without objection it is to be considered and given its natural probative effect as if it were in law admissible"); Wigmore on Evidence § 18 n. 1 (1983). ⁴ Thus, this evidence has whatever probative value that the ALJ, as the trier of fact in this proceeding, reasonably accorded it.

E & R responded to Boyd's testimony with three pieces of evidence: payroll records, the subcontracting agreement, and the testimony of Eugene Grossi, E & R's vice-president. As to the testimony of Grossi, it was within the discretion of the ALJ to determine how much weight should be given to the witness' testimony, particularly in light of Grossi's admission that he was not involved in the day-to-day operations of the company. Therefore, Grossi's statement that E & R was not on the worksite could properly have been considered less probative than the statements of the general contractor's superintendent and the ironworkers' foreman.

The payroll records for the week of the alleged violation show that none of the employees named by Boyd are listed on E & R's payroll for New Jersey. Therefore, an employee who was working in Pennsylvania, as was the case here, would not be included in these records. Thus, these records provide only marginal evidence, if any, of E & R's assertion that these ironworkers were not E & R employees. The subcontracting agreement states that the contract...