Ace Sheeting & Repair Co. v. Occupational Safety and Health Review Commission
| Decision Date | 05 July 1977 |
| Docket Number | No. 76-1481,76-1481 |
| Citation | 555 F.2d 439 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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.
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 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?
Title 29 U.S.C.A. § 654(a) creates two kinds of obligations requiring employers to take steps for the occupational safety and health of their employees:
Each employer
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this chapter.
Paragraph (1) has come to be called the "general duty clause," while paragraph (2) is referred to as the "specific duty clause." This case involves a safety standard promulgated under the specific duty clause. The Act itself gives no guidance as to who must bear the burden of proving the feasibility of eliminating a particular hazard under either clause.
Ace relies on National Realty & Construction Co., Inc. v. OSHRC, 160 U.S.App.D.C. 133, 489 F.2d 1257 (1973), to show that this burden is properly placed on the Secretary. But National Realty dealt with the general duty clause. No regulation or standard guided the employer as to the way to eliminate the hazard there involved. The D.C. Circuit for that reason placed the burden on the Secretary of demonstrating in what manner the Company's conduct fell short of the statutory mandate. The court reasoned that "the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures." 489 F.2d at 1268.
Two circuits have extended the National Realty principle to "specific duty clause" situations. In General Electric Co. v. OSHRC, 540 F.2d 67 (2d Cir. 1976), a standard promulgated by the Secretary required employees to wear protective eye equipment. The Commission had upheld a citation because of the...
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