American Bridge/Lashcon v. Reich
| Decision Date | 21 November 1995 |
| Docket Number | No. 94-1557,94-1557 |
| Parties | , 64 USLW 2345, 17 O.S.H. Cas. (BNA) 1439, 1996 O.S.H.D. (CCH) P 30,939 AMERICAN BRIDGE/LASHCON, a Joint Venture, Petitioner, v. Robert B. REICH, Secretary of Labor, United States Department of Labor and, Occupational Safety and Health Review Commission, Respondents. District of Columbia Circuit |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Richard R. Nelson, II, Pittsburgh, PA, argued the cause for petitioner, with whom Wayne C. Holcombe was on the briefs.
Ronald J. Gottlieb, United States Department of Labor, Pittsburgh, PA, argued the cause, for respondents, with whom Joseph M. Woodward, Associate Solicitor, and Ann S. Rosenthal, Appellate Counsel, United States Department of Labor, were on the brief for respondents. Barbara U. Werthmann, Counsel, United States Department of Labor, entered an appearance for respondents.
Before: EDWARDS, Chief Judge, SENTELLE and TATEL, Circuit Judges.
The Secretary of Labor cited American Bridge/Lashcon for violating safety regulations designed to protect workers from falls and to reduce the hazards from stored oxygen cylinders. The Occupational Safety and Health Review Commission sustained the citations and assessed fines. Relying on our decision in L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 675 (D.C.Cir.1982) ("Willson I "), American Bridge argues that, because it protected its workers during a substantial portion of the workday, it did not violate the fall protection regulations. The cylinders, it claims, were not "in storage" within the meaning of the oxygen cylinder regulation. Holding that Willson I 's "substantial portion of the work day" test applies only where workers face unusual or unpredictable situations, and finding such situations absent here, we sustain the fall protection citation. We also conclude that the Commission's finding that the cylinders were "in storage" is consistent with agency standards and supported by substantial evidence.
Petitioner, American Bridge/Lashcon, is a joint venture formed to erect the structural steel in a new office complex in Hoffman Estates, Illinois. According to its design, the complex would include a multi-story office building with parking garages on the east and west sides. Pedestrian walkways would connect the garages to the building.
To construct the walkways, American Bridge erected two levels of horizontal steel beams, one to support the floors of the future walkways and the other to support their roofs. This case focuses on the beams erected to support the roof of the walkway connecting the west garage to the office building. The roof beams were about 75 to 100 feet long, 13 inches wide, and 28 feet above the ground. To protect employees working on the beams, American Bridge installed a one-half inch thick horizontal cable a few feet above the roof beam. Extending from the west garage to the office building, the cable was anchored at both ends and secured by four intermediate posts. While working on the walkway, workers "tied-off" to the cable: that is, they attached one end of a connector known as a lanyard to the cable and the other end to a safety belt worn around the waist.
Workers also used the roof beam as a temporary walkway to get supplies and food. When using the beam for these purposes, workers did not tie-off. Instead, they held onto the cable or placed their arms over it as they walked. This was consistent with American Bridge policy requiring workers to tie-off only when stationed.
During a routine inspection, an Occupational Safety and Health Administration compliance officer saw a worker who was not tied-off walk across the roof beam. No safety net was underneath the beam. The Secretary of Labor cited American Bridge for violating 29 C.F.R. Sec. 1926.105(a) (1994). Section 105(a), promulgated pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. Secs. 651-678 (1988 & Supp. V 1993), requires:
Safety nets shall be provided when workplaces are more than 25 feet above the ground ... where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.
The Secretary also cited American Bridge for improperly storing an oxygen cylinder next to a cylinder filled with propane gas. Like other steel erectors, American Bridge uses oxygen and propane gas to weld and trim steel. At the time of the inspection American Bridge challenged both citations, along with three others not at issue in this appeal, before the Occupational Safety and Health Review Commission. Following a hearing, an administrative law judge vacated all five citations. American Bridge/Lashcon, J.V., OSHRC Docket No. 91-0633, 1992 WL 50928 (ALJ June 28, 1994). The ALJ found that American Bridge had provided adequate fall protection by requiring employees to tie-off while stationed and working on the beam. Id., slip op. at 7, 1992 WL 50928, at * 5. Finding that workers' trips across the beam totaled about twenty a day, each taking less than a minute, and relying on our decision in Willson I, the ALJ concluded that because workers tied-off for a substantial portion of the workday, American Bridge did not have to provide fall protection for them while walking across the beam. Id. The ALJ also found that the cylinders were not "in storage" within the meaning of the regulation because workers had left them out for immediate use and were likely to use them soon. Id., slip op. at 9-10, 1992 WL 50928, at * 6-7.
workers were not using the cylinders, hoses were not connected to either, and the cylinders were capped. The Secretary cited American Bridge for violating an OSHA regulation that requires the separation of oxygen cylinders "in storage" from combustible materials, including gas cylinders, by a minimum of 20 feet or by a fire wall. 29 C.F.R. Sec. 1926.350(j) (1994).
The Commission reversed the ALJ, reinstated the citations, and assessed $560 in penalties for inadequate fall protection and $240 for improper cylinder storage. Secretary of Labor v. American Bridge/Lashcon, J.V., OSHRC Docket No. 91-633 (June 28, 1994), 16 O.S.H.Cas. (BNA) 1867, 1870 (Rev.Comm'n 1994). With respect to the fall protection citation, the Commission concluded that section 105(a) "requires protection against hazards even though they are of short duration." Id. at 1868. According to the Commission, providing fall protection for a substantial portion of the workday constitutes full compliance with section 105(a) only in "extremely limited" circumstances. Id. Applying these standards, the Commission ruled that the regulations required fall protection--safety nets or one of the other listed devices--for workers crossing the beam. Id. The Commission reinstated the cylinder citation, finding that because the cylinders "had not been used during the previous day and might not have been used for another day or two," they were "in storage" within the meaning of the regulation. Id. at 1869. American Bridge petitions for review of the Commission's order.
The standard for appellate review of Commission decisions is set forth in S.G. Loewendick & Sons, Inc. v. Secretary of Labor, 70 F.3d 1291, 1293-95 (D.C.Cir.1995), an appeal from a Commission order that this court also decides today. We accept the Commission's findings of fact if supported by substantial evidence in the record considered as a whole. 29 U.S.C. Sec. 660(a) (1988); Century Steel Erectors, Inc. v. Dole, 888 F.2d 1399, 1403 (D.C.Cir.1989). We set aside the Commission's application of legal standards to facts only if it is arbitrary, capricious, an abuse of discretion, or contrary to law. 5 U.S.C. Sec. 706(2)(A) (1994); Century Steel, 888 F.2d at 1403. We give deference to the Secretary's reasonable interpretation of agency regulations. See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 158, 111 S.Ct. 1171, 1179, 1180, 113 L.Ed.2d 117 (1991).
Relying on our decision in Willson I, American Bridge argues that section 105(a) requires fall protection only during a substantial portion of the workday. Because workers tied-off to the cable while stationed and were without fall protection only during their brief trips across the walkway beam, American Bridge contends that the workers had adequate fall protection for a substantial portion of the workday.
American Bridge misreads Willson I. Like this case, Willson I involved a citation for failing to provide fall protection to workers erecting steel. According to section 105(a), a company must provide safety nets if tying-off or if one of the other listed safety Our subsequent decisions make clear that Willson I is limited to rare situations involving unexpected or unusual circumstances. In Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377 (D.C.Cir.1985) ("Willson III "), the company failed to provide fall protection to workers known as "connectors," whose jobs were to erect steel on the perimeter of a building. Finding that the Secretary failed to prove that connectors spent a substantial portion of the workday at the building perimeter, the Commission concluded that none of the safety devices was "impractical." Id. at 1383. We reversed, holding that when "no protection has been provided against exterior falls," the "substantial portion of the work day" test is inapplicable. Id. at 1386. We read section 105(a) to require fall protection even if the fall hazard "happens to be of short duration." Id. In Century Steel, we held that the "substantial portion of the workday" test was inapplicable where the company failed to provide any fall protection to workers performing a particular task requiring mobility: dismantling temporary scaffolding by burning off "tack welds" over a two-day period. Century Steel, 888 F.2d at 1404. Even though workers tied-off while stationary, we held that their failure to tie-off while performing the discrete task...
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