Ace Sheeting & Repair Co. v. Occupational Safety and Health Review Commission, No. 76-1481

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore MORGAN and RONEY; RONEY
Citation555 F.2d 439
Decision Date05 July 1977
Docket NumberNo. 76-1481
Parties5 O.S.H. Cas.(BNA) 1589, 1977-1978 O.S.H.D. ( 21,953 ACE SHEETING AND REPAIR COMPANY, Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION and F. Ray Marshall, Secretary of Labor, Respondents.

Page 439

555 F.2d 439
5 O.S.H. Cas.(BNA) 1589, 1977-1978 O.S.H.D. ( 21,953
ACE SHEETING AND REPAIR COMPANY, Petitioner,
v.
OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION and F. Ray
Marshall, Secretary of Labor, Respondents.
No. 76-1481.
United States Court of Appeals,
Fifth Circuit.
July 5, 1977.

Stephen M. Vaughan, Houston, Tex., for petitioner.

Harry W. Scott, Jr., Atty., Benjamin W. Mintz, Associate Sol. of Labor, Michael H. Levin, Atty., Allen H. Feldman, Atty., U.S. Dept. of Labor, Washington, D.C., for respondents.

Petition for Review of an Order of the Occupational Safety & Health Review Commission (Texas Case).

Before MORGAN and RONEY, Circuit Judges, and KING *, District Judge.

RONEY, Circuit Judge:

This case involves a $30 fine for a violation of the Occupational Health and Safety Act. In 1970 Congress enacted the Occupational Safety and Health Act, 29 U.S.C.A. § 651 et seq., "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C.A. § 651(b). In this proceeding we review enforcement of a citation by the Occupational Safety and Health Review Commission. That citation was based on petitioner's failure to comply with regulations requiring a guard rail or cover for skylight openings in a roof work area. Deciding the employer has the burden of demonstrating that compliance with the regulations is impossible, we find substantial evidence on the record as a whole to support the finding of the Review Commission that compliance was feasible. Its decision enforcing the citation is affirmed.

The facts are undisputed. Petitioner Ace Sheeting and Repair Company is a roof

Page 440

repair company. In September 1973 J. C. Ledger, the owner of Ace, and employee Stroud were replacing corrugated metal panels on the roof of a warehouse in Houston. The roof was pitched rather steeply and contained 60 skylight openings arranged in two rows running the length of the building. The skylights were covered with a translucent plastic material called coralux. There was no guard rail or cover around or over any of these skylights. While walking to another section of the roof to obtain additional materials Stroud stepped in the middle of one of the coralux sheets. The sheet gave way beneath his 175-pound weight, and Stroud fell 25 feet to his death.

A few days after this fatality the Secretary of Labor, pursuant to 29 U.S.C.A. § 657(a), inspected the job site. On the basis of this inspection, Ace was served with a citation for violation of 29 C.F.R. § 1926.500(b)(4). That section provides:

Wherever there is danger of falling through a skylight opening, it shall be guarded by a fixed standard railing on all exposed sides or a cover capable of sustaining the weight of a 200-pound person.

This regulation was promulgated by the Secretary under the Act. Title 29 U.S.C.A. § 654(a)(2) imposes on all employers covered by the Act the duty to comply with such regulations. The proposed penalty in the citation served on Ace was a $30 fine.

Ace challenged the citation, and a hearing was held before an administrative law judge. See 29 U.S.C.A. § 659(c). Only the Secretary offered evidence at the hearing. The sole evidence concerning the feasibility of taking the prescribed measures to reduce the risks caused by the unguarded skylights came from an Occupational Safety and Health Administration compliance officer. The administrative law judge vacated the citation on the ground that the Secretary had failed to prove that compliance with the regulation was feasible under the circumstances. The Commission reversed by a two-to-one vote. Ace petitioned this Court for review of that decision. Jurisdiction in this Court is provided under 29 U.S.C.A. § 660(a).

The outcome of this case turns on who has the burden of proof. Must the Secretary prove that compliance with the regulation is feasible, as thought by the administrative law judge; or is feasibility of compliance assumed unless the employer proves otherwise?

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15 practice notes
  • Faultless Div., Bliss & Laughlin Industries, Inc. v. Secretary of Labor, No. 81-1740
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 30, 1982
    ...safety devices" are set out in the regulation. 29 C.F.R. § 1910.212(a)(1) (1980); see Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439 (5th Cir. 1977). Applying a like analysis to particularized standards, the First Circuit in A. E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 952 (......
  • Marshall v. Daniel Const. Co., Inc., No. 76-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 1977
    ...and to comply with standards promulgated under the Act. Id. § 654(a); see Ace Sheeting & Repair Co. v. OSHRC, (5th Cir. 1977) 555 F.2d 439. Employees are responsible for complying with the Secretary's standards and "all rules, regulations, and orders issued (under OSHA) which are a......
  • Diebold, Inc. v. Marshall, No. 76-1278
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 3, 1978
    ...that a violation has occurred. See General Electric Co. v. OSHRC, 540 F.2d 67, 70 (2d Cir. 1976); Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439, 440-41 (5th Cir. 1977); Irvington Moore, Division of U. S. Natural Resources, Inc. v. OSHRC,556 F.2d 431, 433 n. 3 (9th Cir. 1977). 8 Final......
  • Texas Independent Ginners Ass'n v. Marshall, UNIDOS-CAMPESINO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 14, 1980
    ...489 F.2d at 129; of feasibility, Marshall v. West Point Pepperell, Inc., 588 F.2d at 984-85; Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439, 441 (5th Cir. 1977); and of the best available evidence, see American Petroleum Inst. v. OSHA, 581 F.2d at 507. OSHA has the "burden of est......
  • Request a trial to view additional results
15 cases
  • Faultless Div., Bliss & Laughlin Industries, Inc. v. Secretary of Labor, No. 81-1740
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 30, 1982
    ...safety devices" are set out in the regulation. 29 C.F.R. § 1910.212(a)(1) (1980); see Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439 (5th Cir. 1977). Applying a like analysis to particularized standards, the First Circuit in A. E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 952 (......
  • Marshall v. Daniel Const. Co., Inc., No. 76-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 1977
    ...and to comply with standards promulgated under the Act. Id. § 654(a); see Ace Sheeting & Repair Co. v. OSHRC, (5th Cir. 1977) 555 F.2d 439. Employees are responsible for complying with the Secretary's standards and "all rules, regulations, and orders issued (under OSHA) which are a......
  • Diebold, Inc. v. Marshall, No. 76-1278
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 3, 1978
    ...that a violation has occurred. See General Electric Co. v. OSHRC, 540 F.2d 67, 70 (2d Cir. 1976); Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439, 440-41 (5th Cir. 1977); Irvington Moore, Division of U. S. Natural Resources, Inc. v. OSHRC,556 F.2d 431, 433 n. 3 (9th Cir. 1977). 8 Final......
  • Texas Independent Ginners Ass'n v. Marshall, UNIDOS-CAMPESINO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 14, 1980
    ...489 F.2d at 129; of feasibility, Marshall v. West Point Pepperell, Inc., 588 F.2d at 984-85; Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439, 441 (5th Cir. 1977); and of the best available evidence, see American Petroleum Inst. v. OSHA, 581 F.2d at 507. OSHA has the "burden of est......
  • Request a trial to view additional results

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