283 F.3d 328 (D.C. Cir. 2002), 00-1508, A.J. McNulty & Co v. Secretary of Labor

Docket Nº00-1508
Citation283 F.3d 328
Party NameA.J. McNulty & Company, Inc., Petitioner v. Secretary of Labor, Respondent
Case DateMarch 19, 2002
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 328

283 F.3d 328 (D.C. Cir. 2002)

A.J. McNulty & Company, Inc., Petitioner

v.

Secretary of Labor, Respondent

No. 00-1508

United States Court of Appeals, District of Columbia Circuit

March 19, 2002

Argued January 11, 2002

Page 329

[Copyrighted Material Omitted]

Page 330

On Petition for Review of an Order of the Occupational Safety and Health Review Commission

Arthur G. Sapper argued the cause and filed the briefs for petitioner.

Ronald J. Gottlieb, Attorney, U.S. Department of Labor, argued the cause for respondent. With him on the brief were Joseph M. Woodward, Associate Solicitor, and Ann S. Rosenthal, Counsel. Charles F. James, Attorney, entered an appearance.

Before: Ginsburg, Chief Judge, Randolph and Tatel, Circuit Judges.

Opinion for the court filed by Circuit Judge Tatel.

Tatel, Circuit Judge:

Petitioner, a construction company, challenges the Occupational Safety and Health Review Commission's affirmance of a series of OSHA citations based on the company's failure to comply with workplace safety regulations. Petitioner also challenges the Commission's classification of several violations as "willful." To the extent petitioner has preserved its challenges for review, it has failed to demonstrate that the Commission erred legally or that its decision lacks substantial evidentiary support. The Commission's classification of some citations as willful presents a closer question, but because this determination is also supported by substantial evidence, we reject those challenges as well.

I.

The Occupational Safety and Health Act imposes a general duty on employers to keep workplaces "free from recognized hazards that are ... likely to cause death or serious physical harm." 29 U.S.C. s 654(a)(1). Authorized by that Act to promulgate and enforce workplace-safety regulations, see id. s 655(b), the Secretary of Labor delegated most of her authority to the Occupational Safety and Health Administration (OSHA), see 65 Fed. Reg. 50,017 (2000). OSHA compliance officers regularly inspect workplaces. If they identify a violation of safety regulations, OSHA issues a citation in one of three categories: "not serious," for which a fine of up to $7000 "may be assessed"; "serious," for which a fine of up to $7000 "shall be assessed"; and "willful," for which a fine of at least $5000 but not more than $70,000 "may" be assessed. 29 U.S.C. s 666(a)-(c). Employers may challenge citations, in which case an administrative law judge conducts a hearing and issues a decision. Id. s 661(j); 29 C.F.R. s 2200.90(a) (2001). Employers may appeal adverse ALJ decisions to the Occupational Safety and Health Review Commission. Id. ss 2200.91-.92.

Petitioner A.J. McNulty & Co. specializes in "precast concrete construction," in Page 331

which huge, precast concrete slabs are assembled to create walls, ceilings, and floors. Because the concrete sections, known in the industry as "double-T's," weigh as much as forty tons and rise as high as three stories, cranes are needed to lower them into place. As the crane operator, who sometimes can see neither the double-T nor its intended location, lowers the double-T into its approximate position, McNulty employees use ropes to guide the slab into its precise place. This process is dangerous, occasionally requiring workers to move quickly to avoid an errant doubleT. Once a double-T has been properly positioned, McNulty employees secure it by welding together steel plates embedded in each piece.

In 1993, construction project manager Whiting-Turner Contracting Co. began work on a ten-deck parking garage in White Plains, New York. The company Whiting-Turner hired to perform the concrete construction in turn subcontracted with McNulty to install the double-T's. Shortly after work commenced, Whiting-Turner issued written safety notices to McNulty complaining about the company's failure to protect employee safety. These notices, which Whiting Turner issues only if informal verbal notices have been ignored, called attention to, among other things, McNulty's failure to erect guardrails to protect workers from falling off edges of recently-installed floor pieces. Representatives of the two companies met to discuss the problem, but WhitingTurner once again issued written safety notices to McNulty for continuing to expose employees to unsafe conditions. After OSHA compliance officers surveyed the project, the Agency cited McNulty for numerous willful violations of workplace safety regulations that require construction companies to use guardrails or safety nets to protect workers from dangerous falls. See generally 29 C.F.R. s 1926.105, id. s 1926.500 (1994).

McNulty contested the citations. Following a hearing in which an ALJ upheld the citations in all respects, McNulty sought review before the Commission. The Commission affirmed the ALJ's findings, but reduced the classification of some citations from "willful" to "serious."

McNulty appeals ten citations. The issues presented are both numerous and complex, and McNulty's counsel did not help matters by submitting a confusingly organized brief that contained a completely uninformative statement of issues. See Fed. R. Appellate P. 28(a)(5) (requiring a statement of issues). Prior to oral argument, we directed McNulty to submit a revised statement of issues, warning that we would decline to consider the merits of any "issue not specifically listed." Order of the U.S. Court of Appeals for the D.C. Circuit at 1, A.J. McNulty & Co. v. Sec'y of Labor (Jan. 3, 2002) (No. 00-1508). Working from the company's revised statement of issues and following the sensible organization of the Secretary's brief, we consider the challenged citations in three categories: (1) failure to construct guardrails around "floor openings" and "open-sided floors"; (2) failure to construct guardrails on narrow, elevated platforms; and (3) failure to tie off adequately or otherwise secure workers using a steel cage called a "man-basket."

II.

Familiar principles of administrative law govern our review of the Commission's fact-finding and its application of law to facts. Commission findings of fact stand if "supported by substantial evidence on the record considered as a whole." 29 U.S.C. s 660(a); see also IBP, Inc. v. Herman, 144 F.3d 861, 866 (D.C. Cir. 1998). Its legal determinations stand unless they are "arbitrary, capricious, ... or otherwise not in accordance Page 332

with law." 5 U.S.C. s 706(2)(A); see also Loewendick & Sons, Inc. v. Reich, 70 F.3d 1291, 1294 (D.C. Cir. 1995). We owe "substantial deference to an agency's interpretation of its own regulations," which has "controlling weight unless it is plainly erroneous or inconsistent with the regulation." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (internal quotation marks and citations omitted). In OSHA cases, there are two administrative actors: the Secretary and the Commission. In Martin v. Occupational Safety & Health Review Commission, the Supreme Court explained that because the Secretary, not the Commission, has authority to make enforcement decisions and to render definitive interpretations of OSHA regulations, courts owe "substantial deference" only to the Secretary's interpretation. 499 U.S. 144, 151-57 (1991). We treat Commission interpretations as "equivalent to [those made by] a 'nonpolicymaking' district court." Molineaux v. United States, 12 F.3d 264, 267 (D.C. Cir. 1994) (quoting Martin, 499 U.S. at 154).

With these standards in mind, we consider the three categories of citations.

Floor Openings and Open-Sided Floors

OSHA issued these citations pursuant to two regulations. The first requires that "[f]loor openings shall be guarded by a standard railing ... on all exposed sides." 29 C.F.R. s 1926.500(b)(1) (1994). OSHA cited McNulty for violating this provision after compliance officers observed two instances in which the company failed to install guardrails along the open edges surrounding the spaces where double-T floor members remained to be installed on levels P-2 and P-5 of the parking structure.

McNulty argues that the guardrail regulation is inapplicable because at the time of the citation, the surfaces in question were not "floors" within the meaning of that regulation. Before addressing this contention, we must consider whether, because McNulty raised this issue only in its brief before the Commission and not in its petition for discretionary review (known as a PDR), we lack jurisdiction under 29 U.S.C. section 660(a): "No objection that has not been urged before the Commission shall be considered by the court [of appeals]." See also Power Plant Div., Brown & Root, Inc. v. Occupational Safety & Health Review Comm'n, 659 F.2d 1291, 1293 & n.3 (5th Cir. Unit B 1981) ("We have previously characterized [29 U.S.C. s 660(a)] as a limit upon our jurisdiction."), modified and aff'd on reh'g, 673 F.2d 111 (5th Cir. Unit B 1982); Athens Community Hosp. v. Schweiker, 686 F.2d 989, 992 (D.C. Cir. 1982) (courts may raise jurisdictional issues sua sponte).

Resolving this issue requires an understanding of the Commission's appeal procedures as well as of section 660(a). An employer wishing to challenge an ALJ decision begins the appeal process by filing a PDR with the Commission. 29 C.F.R. s 2200.91(b). The Commission may review any issue raised in the PDR or, on its own motion, any other issue. See id. If the Commission directs review, it ordinarily requests briefs, hears oral argument (if it chooses), and then issues a final order disposing of the matter. See id. ss 2200.93, 2200.95. If the Commission fails to direct review of an issue within thirty days of the PDR's filing, the ALJ report becomes the Commission's final order. See id. s 2200.90(d). Either way, the Commission's final order is reviewable in the appropriate court of appeals, subject to the limitation that courts of appeals lack jurisdiction over "objection[s] ......

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31 practice notes
  • COVID-19 Vaccination and Testing; Emergency Temporary Standard
    • United States
    • Occupational Safety And Health Administration
    • Invalid date
    ...of compliance as part of its prima facie case in an enforcement proceeding. See, e.g., A.J. McNulty & Co. v. Sec'y of Labor, 283 F.3d 328, 334 (D.C. Cir. 2002); S. Colorado Prestress Co. v. Occupational Safety & Health Rev. Comm'n, 586 F.2d 1342, 1351 (10th Cir. 1978). Preventing th......
  • Employment law violations.
    • United States
    • American Criminal Law Review Vol. 52 Nbr. 4, September 2015
    • September 22, 2015
    ...White and O'Connor filed dissenting opinions pointing out the circuit split. (53.) See A.J. McNulty & Co., Inc. v. Sec'y of Labor, 283 F.3d 328, 334 (D.C. Cir. 2002) (indicating employer may have an affirmative defense that compliance was impossible or infeasible); E & R Erectors, I......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 45 Nbr. 2, March 2008
    • March 22, 2008
    ...Line Builders v. Marshall, 678 F.2d 128, 131 (10th Cir. 1982) (holding the same). (47.) A.J. McNulty & Co., Inc. v. Sec'y of Labor, 283 F.3d 328, 334 (D.C. Cir. 2002) (indicating employer may have an affirmative defense that compliance was impossible or infeasible); E & R Erectors, ......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 43 Nbr. 2, March 2006
    • March 22, 2006
    ...agree that such must be disproved by the Secretary in his case-in-chief."). (45.) A.J. McNulty & Co., Inc. v. Sec'y of Labor, 283 F.3d 328, 334 (D.C. Cir. 2002) (indicating employer may have an affirmative defense that compliance was impossible or infeasible); E & R Erectors, I......
  • Request a trial to view additional results
9 books & journal articles
  • Employment law violations.
    • United States
    • American Criminal Law Review Vol. 52 Nbr. 4, September 2015
    • September 22, 2015
    ...White and O'Connor filed dissenting opinions pointing out the circuit split. (53.) See A.J. McNulty & Co., Inc. v. Sec'y of Labor, 283 F.3d 328, 334 (D.C. Cir. 2002) (indicating employer may have an affirmative defense that compliance was impossible or infeasible); E & R Erectors, I......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 45 Nbr. 2, March 2008
    • March 22, 2008
    ...Line Builders v. Marshall, 678 F.2d 128, 131 (10th Cir. 1982) (holding the same). (47.) A.J. McNulty & Co., Inc. v. Sec'y of Labor, 283 F.3d 328, 334 (D.C. Cir. 2002) (indicating employer may have an affirmative defense that compliance was impossible or infeasible); E & R Erectors, ......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 43 Nbr. 2, March 2006
    • March 22, 2006
    ...agree that such must be disproved by the Secretary in his case-in-chief."). (45.) A.J. McNulty & Co., Inc. v. Sec'y of Labor, 283 F.3d 328, 334 (D.C. Cir. 2002) (indicating employer may have an affirmative defense that compliance was impossible or infeasible); E & R Erectors, I......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 44 Nbr. 2, March 2007
    • March 22, 2007
    ...Line Builders v. Marshall, 678 F.2d 128, 131 (10th Cir. 1982) (holding the same). (46.) A.J. McNulty & Co., Inc. v. Sec'y of Labor, 283 F.3d 328, 334 (D.C. Cir. 2002) (indicating employer may have an affirmative defense that compliance was impossible or infeasible); E & R Erectors, ......
  • Request a trial to view additional results
1 provisions
  • COVID-19 Vaccination and Testing; Emergency Temporary Standard
    • United States
    • Occupational Safety And Health Administration
    • Invalid date
    ...of compliance as part of its prima facie case in an enforcement proceeding. See, e.g., A.J. McNulty & Co. v. Sec'y of Labor, 283 F.3d 328, 334 (D.C. Cir. 2002); S. Colorado Prestress Co. v. Occupational Safety & Health Rev. Comm'n, 586 F.2d 1342, 1351 (10th Cir. 1978). Preventing th......

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