Brock v. L.R. Willson & Sons, Inc.
| Decision Date | 08 October 1985 |
| Docket Number | No. 84-1471,84-1471 |
| Citation | 773 F.2d 1377 |
| Parties | , 12 O.S.H. Cas.(BNA) 1499, 1984-1985 O.S.H.D. ( 27,390 William E. BROCK, Secretary of Labor, Petitioner, v. L.R. WILLSON & SONS, INC., Respondent, International Association of Bridge, Structural and Ornamental Iron Workers, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Laura V. Fargas, Atty., Dept. of Labor, Washington, D.C., of the Bar of the Supreme Court of Pennsylvania, pro hac vice by special leave of the Court. Judith N. Macaluso, Asst. Counsel and Dominique Kirchner, Atty., Dept. of Labor, Washington, D.C., were on brief, for petitioner. Arthur J. Amchan, Atty., Dept. of Labor, Washington, D.C., also entered an appearance for petitioner.
Edward S. Dorsey, Baltimore, Md., for respondent.
Elihu I. Leifer, Washington, D.C., for intervenors.
Before WALD, EDWARDS and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
The Secretary of Labor petitions here for review of an order issued by the Occupational Safety and Health Review Commission ("OSHRC" or "Commission") under the Occupational Safety and Health Act ("OSHA"), 29 U.S.C. Secs. 651-78 (1982), vacating a citation issued to L.R. Willson & Sons, Inc. ("Willson") for failure to use perimeter netting to protect against exterior falls on a structural steel erection site in violation of 29 C.F.R. Sec. 1926.105(a) (1984) [hereinafter Sec. .105(a) ]. We find that the Commission misconstrued our decision in L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664 (D.C.Cir.1982) [hereinafter Willson I ] in interpreting Sec. .105(a). That section, properly applied, was violated by Willson's failure to provide any form of protection against exterior fall hazards. Since this is the only conclusion that can be drawn from the record before us, we remand with directions to reinstate the citation against Willson.
On July 17 and 21, 1980, OSHA Compliance Officer John Wiseman inspected a construction site at 9th and G Streets in Washington, D.C. where Willson was performing steel erection work on the YWCA building. Wiseman observed two employees at the perimeter of the building, approximately ninety and one hundred feet above the ground, who were not wearing safety belts or otherwise protected from the dangers of exterior falls by perimeter netting. A temporary steel floor was in place at the eighth floor level, one and two floors below the two employees, but the deck did not extend beyond the perimeter of the building. The employees were "connectors," ironworkers who climb vertical steel columns where horizontal steel beams are lifted up to them with a crane. They guide the beams into place, bolt them, and then climb out on the beams in order to release the line connecting the beam to the crane. 1 Connectors cannot wear safety belts while connecting because they need mobility in order to avoid being struck and injured by the beams.
As a result of the inspection, Willson was issued a number of citations, only one of which is involved here. That citation charged Willson with a serious violation of a general construction industry standard, 29 C.F.R. Sec. 1926.105(a) (1984), which requires that "[s]afety 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." A serious violation exists when "there is a substantial probability that death or serious physical harm could result" from the violation. 29 U.S.C. Sec. 666(k) (1982).
The administrative law judge (ALJ) chose not to decide the question of whether 29 C.F.R. Sec. 1926.750(b) (1984) [hereinafter Sec. .750(b) ], a fall protection regulation under the Subpart R steel erection standards, 2 preempted enforcement of the more general construction industry standard in Sec. .105(a). Instead, he concluded that the two standards, "when construed separately and together ... [do not] provide a steel erector with fair warning that he must obey the general standard by installing so-called perimeter nets." A. at 20. The ALJ's notice analysis also rested in part on voluminous record evidence which he felt raised a concern that "lack of enforcement [of Sec. .105(a) ] lulled the industry into a false sense of security." A. at 35. Alternatively, the ALJ found that if Willson was on notice that Sec. .105(a) applied, the company had complied with the regulation by installing temporary floors. A. at 38.
OSHRC affirmed the ALJ's decision to vacate the citation, but on different grounds. L.R. Willson & Sons, Inc., 11 O.S.H.Cas. (BNA) 2182 (Rev.Comm'n 1984). First, the Commission concluded that steel erection standard Sec. .750(b) was specifically applicable to the hazard of falling and so preempted enforcement of the general construction standard Sec. .105(a). Id. at 2184. OSHRC acknowledged that its conclusion was contrary to this court's decision in Willson I, and so went on to assume that Sec. .105(a) applied. Purportedly basing its interpretation of Sec. .105(a) on Willson I, the Commission held that use of one of the listed safety devices was "impractical," so as to require use of perimeter netting, only if the device did not provide protection during a substantial portion of the work day. Id. at 2184-85. Using this rationale, the Commission affirmed the ALJ's vacation of the citation, finding that the Secretary had not met his burden of proving the violation because he presented almost "no evidence which would indicate the amount of time during the work day that the employees would work on the outside perimeter." Id. at 2185.
This petition for review followed.
OSHRC's first ground for vacating the citation was that Sec. .105(a) does not apply to fall hazards in the steel erection industry. The rules of preemption, as specified in OSHA regulations, provide that a general construction standard like Sec. .105(a) applies to steel erectors unless another standard is specifically applicable to the same hazard. 29 C.F.R. Sec. 1910.5(c) (1985). 3 In three decisions handed down the same day, OSHRC held that Sec. .105(a) may not be applied in the steel erection industry because a Subpart R steel erection standard, 29 C.F.R. Sec. 1926.750(b) (1984), is specifically applicable to the hazard of falling. Willson, 11 O.S.H.Cas. at 2184; Adams Steel Erection, Inc., 11 O.S.H.Cas. (BNA) 2073, 2074-79 (Rev.Comm'n 1984), rev'd sub nom. Donovan v. Adams Steel Erection, Inc., 766 F.2d 804 (3d Cir.1985); Daniel Marr & Son Co., 11 O.S.H.Cas. (BNA) 2088, 2089 (Rev.Comm'n 1984), rev'd sub nom. Donovan v. Daniel Marr & Son Co., 763 F.2d 477 (1st Cir.1985). This result was a reversal of the Commission's prior position that Sec. .750(b) did not preempt Sec. .105(a) with respect to exterior fall hazards in the steel erection industry. Williams Enters., Inc., 11 O.S.H.Cas. (BNA) 1410, 1419 (Rev.Comm'n 1983), aff'd sub nom. Donovan v. Williams Enters., Inc., 744 F.2d 170, 177-78 (D.C.Cir.1984).
While it is not clear whether Willson is even defending this portion of OSHRC's decision any longer, we address the issue briefly in order to permanently lay to rest any doubts the company and the Commission may have as to which regulation governs exterior fall hazards in the steel erection industry. Willson, respondent here and petitioner in Willson I, argued in both instances that Sec. .750(b)(1)(ii) was more specific and preempted the general construction industry standard. In Willson I this court found that Sec. .105(a) was the applicable standard, rejecting the company's argument because "[a] general standard is not preempted unless a specific standard sets forth the measures that an employer must take to protect employees from a particular hazard." 685 F.2d at 670 (emphasis added). The particular hazard at issue in Willson I was exterior falls from above the level of temporary floors or decking, 4 and the court read Sec. .750(b)(1)(ii) to apply only to interior falls because the regulation would be satisfied by the use of temporary flooring and "it appears obvious that temporary flooring protects only against interior falls." Id. at 672. This court has consistently followed Willson I, relying on it to find that Sec. .750(b) did not preempt 29 C.F.R. Sec. 1926.28(a) (1984), another one of the general construction standards, L.R. Willson & Sons, Inc. v. OSHRC, 698 F.2d 507, 511-12 (D.C.Cir.1983), and to affirm OSHRC's aforementioned decision applying Sec. .105(a) to exterior fall hazards in the steel erection industry, Donovan v. Williams Enters., Inc., 744 F.2d 170, 179 (D.C.Cir.1984).
On July 20, 1984, however, the Commission announced that it had changed its mind about which regulation governed exterior fall hazards in the steel erection industry. In reviewing the Commission's position as applied in this case, we recognize that an agency is entitled to change course if it gives a principled and rational reason for the reversal. Greyhound Corp. v. ICC, 551 F.2d 414, 416 (D.C.Cir.1977). One court has taken the stricter position that OSHRC cannot, in an adjudicatory proceeding, reject the interpretation given to a regulation by the appellate court for the circuit in which the case arose. Borton, Inc. v. OSHRC, 734 F.2d 508, 510 (10th Cir.1984). In the past, however, this court has been unable to agree on the extent of an agency's authority not to follow a statutory interpretation made by a court of appeals, so it is unclear that we would follow suit. See Yellow Taxi Co. v. NLRB, 721 F.2d 366, 382-83 (D.C.Cir.1983); id. at 384-85 (Wright, J., concurring); id. at 385 (Bork, J., concurring). Fortunately, we do not need to settle the question of OSHRC's general authority to reject circuit precedent, because in this case the Commission clearly exceeded its authority by resting its decision on a...
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