Ray Evers Welding Co. v. Occupational Safety and Health Review Commission

• Decision Date: 17 July 1980
• Docket Number: No. 77-3581,77-3581
• Citation: 625 F.2d 726
• Parties: 8 O.S.H. Cas.(BNA) 1271, 1980 O.S.H.D. (CCH) P 24,413 RAY EVERS WELDING CO., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 726

625 F.2d 726

8 O.S.H. Cas.(BNA) 1271, 1980 O.S.H.D. (CCH) P 24,413

RAY EVERS WELDING CO., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.

No. 77-3581.

United States Court of Appeals,

Sixth Circuit.

Argued Feb. 6, 1980.

Decided April 29, 1980.

As Amended July 17, 1980.

Daniel P. Dooley, Frost & Jacobs, Cincinnati, Ohio, for petitioner.

William S. McLaughlin, Executive Secretary, O. S. H. R. C., Washington, D. C., Bettye J. Harris, Thomas L. Holzman, William G. Staton, Allen H. Sachsel, Dept. of Justice, Washington, D. C., for respondent.

Before EDWARDS, Chief Judge and WEICK and BROWN, Circuit Judges.

WEICK, Circuit Judge.

Ray Evers Welding Company (Evers), an employer, has petitioned this court to review the final decision and order of the Occupational Safety and Health Review Commission (OSHRC) holding Evers liable for an alleged serious violation of Section 5(a)(2) ¹ of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 654(a)(2)) for neglecting to require its employees to use appropriate personal protection equipment (safety belts and lanyards) allegedly mandated under the Secretary's regulation 29 CFR § 1926.28(a), ² and assessing a civil penalty of $200.00 therefor. The issues presented to this court are whether there is substantial evidence to support each element of the violation upon which the Secretary had the burden of proof. As circumscribed herein, we uphold the regulation but are of the opinion that no violation was shown by substantial evidence.

I

The facts leading up to the citation are undisputed. Evers was employed by Warren Brothers Company to erect the structural frame of a one-story, pre-engineered, warehouse building designed by Warren Brothers. The OSHA inspection occurred during the finishing stages of the steel work when Evers' employees were in the process of attaching roof supports known as "knee braces." This process required that an employee get up on the roof girders and move to where a cross beam (called a purlin) intersects with the roof girder. The employee would then bolt one end of a steel brace to the roof girder upon which he was sitting and the other end to the purlin at a point a couple of feet out from the point of intersection between the purlin and the roof girder. This whole operation takes between 5 and 10 minutes to complete. During this time the employee is relatively stationary, but must do a lot of leaning and maneuvering. The employee then moves along the roof girder either by walking on top of the girder or by stradling the girder and walking on its lower flanges to the next point where a brace was to be attached. (Knee braces are attached to every other purlin.) The Citation and the Complaint both alleged that Evers' employees were working at heights of between 18 and 21 feet above ground and that the employees were not required by the company to wear safety belts and lanyards. These allegations were admitted by the employer. ³

After reviewing the evidence, the ALJ and the Review Commission found that a violation of § 1926.28(a) was shown by the employer's failure to require employees to wear safety belts attached by lanyards to purlins when the employees were attaching knee braces. As we read the opinion of the ALJ, the ALJ did not require use of safety belts other than when the employees were in a stationary position and when the crane was not in operation.

II

Evers contends that the language of § 1926.28(a) is so broad and general that it had no notice of what conduct was required by the regulation in order to insure compliance with the law. Evers claims that enforcement of the civil penalty imposed by the Secretary would under these circumstances violate its Due Process right. This Circuit has recently held in Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335-36 (6th Cir. 1978):

Among the myriad applications of the due process clause is the fundamental principle that statutes and regulations which purport to govern conduct must give an adequate warning of what they command or forbid. In our jurisprudence, "because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). The principle applies with special force to statutes which regulate in the area of First Amendment rights, but the due process requirement of fundamental fairness is hardly limited to that context. Even a regulation which governs purely economic or commercial activities, if its violation can engender penalties, must be so framed as to provide a constitutionally adequate warning to those whose activities are governed.

In determining the degree of specificity required, several conflicting policy considerations come into play. The Fifth Circuit in B & B Insulation Inc. v. OSHRC, 583 F.2d 1364, 1370-72 (5th Cir. 1978), outlined some of the factors favoring specificity in OSHA regulations:

The purpose of the Act is preventive rather than compensatory. Achievement of its goal of reducing industrial accidents depends upon employer compliance through elimination of legislatively identified safety and health hazards by prescribed remedial measures. Preventive goals are obviously not advanced where broad standards are extended to encompass every situation which gives rise to an unlikely accident.

The Act indicates that Congress thought specificity of standards desirable. In light of the Act's preventive purpose and the intended specificity of its standards, the employer whose activity is not yet addressed by a specific regulation and whose conduct conforms to the common practice of those similarly situated in his industry should not generally bear an extra burden.

Where the Government seeks to encourage a higher standard of safety performance from the industry than customary industry practices exhibit, the proper recourse is to the standard-making machinery provided in the Act, selective enforcement of general standards being inappropriate to achieve such a purpose. The use of standard-making procedures assures that not only would employers be apprised of the conduct required of them and responsibility for upgrading the safety of the industry would be borne equally by all its members, but the resulting standard would benefit from input of the industry's experts, both employer and employee, cost and technology obstacles faced by the industry could be weighed, and more interested parties can participate in the process. (footnotes deleted)

On the other hand, the Secretary persuasively argues that specific regulations cannot begin to cover all of the infinite variety of hazardous conditions which employees must face. By requiring regulations to be too specific we would be opening up large loopholes allowing conduct which should be regulated to escape regulation. Nor do we feel that the employees of an industry which fails to take reasonable precautions for economic reasons should remain totally unprotected by the general duty regulations. We do not wish to provide an encouragement for industries to negligently fail to provide reasonable and feasible safety equipment for its employees where they face known hazards.

Turning our attention to prior interpretations of § 1926.28(a) we find that this regulation has a checkered history which offers more support to the petitioner's vagueness challenge than to any one interpretation of the regulation. The original language of the regulation read:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to employees. (emphasis added)

When the three-member Review Commission was faced with interpreting this broad language, it split three ways. ⁴ Commissioners Cleary and Van Namee upheld the regulation against a vagueness challenge over a strong dissent by Commissioner Moran. However, Commissioner Van Namee felt that the regulation only applied where the standard of conduct required of the industry could be found by reference to other more specific regulations. In Carpenter Rigging & Contracting Corporation, 2 BNA OSHC 1544 (Feb. 4, 1975), Commissioner Van Namee found that the requirement to use safety belts for heights of between 16 and 25 feet was implicit in other regulations which he cites in his opinion. Commissioner Cleary consistently took the position that the word "and" should be interpreted as meaning "as well as" and thus he would apply the regulation wherever employees are exposed to conditions which a reasonable person familiar with the industry would regard to be hazardous. On December 16, 1972, the regulation was modified to its present version by substitution of the word "or" for the word "and." This change in language was declared to be non-substantive and the procedures required for making a substantive amendment to the regulations were not followed. ⁵ This was the state of the law existing as of the time the violation was found and the citation was issued.

Subsequent to the finding of a violation and the issuance of the citation in this case, the Ninth Circuit reversed the Commissioner's decision in Hoffman Construction Company, supra, and declared the regulation (the old version) to be unenforceably vague. Hoffman Construction Company v. OSHRC, 546 F.2d 281 (1976). The court expressly reserved comment on the amended version of the regulation. The Review Commission declined to follow Hoffman, but despite a change in the membership of the Commission, and the change in the language of the regulation, the Commissioners remained unable to agree on the scope of the regulation. ⁶ Commissioner Barnako, who replaced Commissioner Van Namee, felt that...