542 F.2d 27 (7th Cir. 1976), 75-2125, Allis-Chalmers Corp. v. Occupational Safety and Health Review Com'n

CourtUnited States Court of Appeals (7th Circuit)
Citation542 F.2d 27
Docket Number75-2125.
Date28 July 1976

Page 27

542 F.2d 27 (7th Cir. 1976)




Secretary of Labor, Respondents.

No. 75-2125.

United States Court of Appeals, Seventh Circuit

July 28, 1976

Argued April 23, 1976.


Page 28

T. Michael Bolger, Nicholas T. Jordan, Milwaukee, Wis., for petitioner.

Sidney M. Nowell, U. S. Dept. of Labor, Washington, D. C., George F. Graf, Milwaukee, Wis., Michael H. Levin, Allen H. Sachsel, Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C., for respondents.

Page 29

Before CASTLE, Senior Circuit Judge, TONE, Circuit Judge, and GRANT, Senior District Judge. [**]

GRANT, Senior District Judge.

Allis-Chalmers petitions for a review of an Order of the Occupational Safety and Health Review Commission which reversed the decision of the Administrative Law Judge vacating Sub-Item 13(e) of the Secretary of Labor's citation of Allis-Chalmers. The citation, issued pursuant to Sec. 5(a)(2) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. § 651 et seq.) alleged that petitioner had violated OSH standard 29 C.F.R. 1910.28(a)(1) by failing to provide its employees with scaffolds in areas where work could not be done safely from the ground or from solid construction. The citation resulted from an observation, made by the Secretary's safety and health compliance officer, that one of petitioner's employees was off-loading a manhole cover and some bolts from a crane while on top of a rotary kiln which was laying on its side. No scaffold was present during this operation. The Administrative Law Judge held that there was no violation of the standard. The Review Commission, however, reversed that decision, finding that the hearing Judge erred in stating the elements necessary to establish noncompliance with the standard. Petitioner thereupon filed the instant petition for review of the Commission's ruling.

In support of its position in this appeal, petitioner claims first of all that the standard under which it was cited is invalid and unenforceable because it is so vaguely worded that the company could not reasonably have foreseen its applicability. In support thereof, petitioner contends that the regulation in question fails to give fair notice to a person of ordinary intelligence that it proscribes or prescribes any given conduct. Additionally, petitioner maintains that, even if the standard were deemed valid, respondents completely failed to sustain their burden of proving that the work performed herein could not be done safely from the ground or solid construction so as to necessitate the use of scaffolds. For these reasons, petitioner urges this Court to reverse the Commission's decision and affirm the judgment of the Administrative Law Judge.

In response, respondents maintain that the Commission's order is supported by substantial evidence and contend that the undisputed evidence showed that employees who were working on the cylindrical surfaces herein without scaffolding, ladders, or other protection against possible falls, were working under conditions which created a clear tripping hazard. Respondents assert that the proper test to be applied in this case is whether there was an objective fall danger requiring scaffold use; and that, under this test, such a danger did, in fact, exist in this case. Second, respondents reject as untenable petitioner's contention that the standard applied in this case is unconstitutionally vague. As to this argument, respondents note that the requirement is not so indefinite that men of ordinary intelligence must necessarily guess at its meaning. On the contrary, respondents say that the standard under scrutiny herein makes clear that scaffolds are required whether or not employees are working from solid construction, if the work from such surfaces cannot be done safely. Accordingly, it is concluded that reasonable men should conclude that work from the rotary kilns without fall protection was unsafe. We are urged, therefore, on the basis of the above, to deny the instant petition and affirm and enforce the Commission's order.

The pertinent portion of the standard involved in this case, which the Commission found petitioner to have violated, states...

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