Austin Bldg. Co. v. Occupational Safety and Health Review Com'n, 79-1114

• Decision Date: 08 May 1981
• Docket Number: No. 79-1114,79-1114
• Citation: 647 F.2d 1063
• Parties: 9 O.S.H. Cas.(BNA) 1718, 1981 O.S.H.D. (CCH) P 25,389 AUSTIN BUILDING COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1063

647 F.2d 1063

9 O.S.H. Cas.(BNA) 1718, 1981 O.S.H.D. (CCH) P 25,389

AUSTIN BUILDING COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Secretary of Labor, Respondents.

No. 79-1114.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Sept. 17, 1980.

Decided May 8, 1981.

Steven R. McCown, Dallas, Tex. (Phillip R. Jones, also of Clark, West, Keller, Butler & Ellis, Dallas, Tex., with him, on brief), for petitioner.

Allen H. Feldman, Acting Counsel for Appellate Litigation, U. S. Dept. of Labor, Washington, D. C. (Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Nancy L. Southard, Acting Asst. Counsel for Appellate Litigation, Rita E. Seeligson, Atty., and T. A. Housh, Jr., Regional Sol., Washington, D. C., with him, on brief), for respondents.

Before SETH, Chief Judge, LOGAN, Circuit Judge, and TEMPLAR, District Judge ^*.

LOGAN, Circuit Judge.

Austin Building Company seeks review of an order of the Occupational Safety and Health Review Commission (OSHRC), finding Austin guilty of four serious and two nonserious violations of the Occupational Safety and Health Act (OSHA or the Act), 29 U.S.C. § 651 et seq. After a consolidated hearing covering the citations from two inspections, an administrative law judge found Austin guilty of the violations charged and assessed $900 in penalties. Since OSHRC did not exercise its discretion to review the report, the hearing report became the final order of OSHRC pursuant to 29 U.S.C. § 661(i).

The case arises from safety inspections conducted by the Occupational Safety and Health Administration at the construction site of the Jeffery Energy Center in St. Mary's, Kansas, where petitioner was one of several contractors building a power plant for Kansas Power and Light Company. As a result of the first inspection, conducted from November 15 through November 29, 1977, by compliance officer Hershel W. Hensley, the Secretary of Labor issued two citations charging Austin with serious violations for failing to provide or require personal protective equipment for employees working more than seventeen feet above the ground as required by 29 C.F.R. § 1926.28(a) and for requiring employees to work near the edge of open-sided floors and floor openings which lacked guardrails or protective cables in contravention of 29 C.F.R. §§ 1926.500(b)(1) and (d)(1). Petitioner was also cited for nonserious violations of 29 C.F.R. §§ 1926.25(a) and 29 C.F.R. 1926.400(a) for exposing employees to a tripping hazard and for permitting employees to use electrical equipment with unprotected electrical leads. On December 28, 1977, a second inspection was conducted in response to an employee complaint about insecure scaffolding and an injury to an employee who fell through the scaffolding on December 22, 1977. After this investigation, Austin was cited for a serious violation of 29 C.F.R. § 1926.451(a)(12) for failing to secure the planking on a scaffold deck.

The Secretary proposed a penalty of $600 for the three serious violations cited after the first inspection and $300 for the serious violation found in the second inspection. See 29 U.S.C. § 659(a). Austin contested the Secretary's citations within the time limit prescribed by 29 U.S.C. § 659(c).

Our jurisdiction is based on 29 U.S.C. § 660(a), which provides that the Commission's findings of fact are conclusive if supported by substantial evidence in the record considered as a whole. See Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309 (10th Cir. 1976). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). See also Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). We also may set aside agency conclusions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

I

The facts giving rise to the charge of violation of 29 C.F.R. § 1926.28(a) (1979) follow. During the first inspection, compliance officer Hensley observed two Austin employees welding metal brackets to a steel column at the first elevation of a fly ash silo on the site. Notwithstanding petitioner's assertions, photographic evidence shows the welder was balancing with one foot on a midrail above the flooring and the other foot on the midrail of a stairway which was pushed up against the building but not attached to it. Testimony established that he was approximately nineteen feet above the ground. The other employee, who was handing metal brackets to the welder, was standing on the first floor elevation, seventeen feet six inches above the ground. ¹ The area below was littered with construction equipment and angle iron. Neither employee was using a safety belt or other safety device.

In challenging the Commission's finding that it violated 29 C.F.R. § 1926.28(a), Austin contends that (1) the regulation is unconstitutionally vague and therefore unenforceable, (2) the regulation is void because the Secretary failed to comply with requirements of the Administrative Procedure Act (APA) in amending the provision, (3) the Secretary failed to establish the elements of a violation of section 1926.28(a), and (4) the employees' misconduct was an unforeseeable, isolated occurrence.

A

In considering a challenge that an administrative regulation is void for vagueness, we do not view the language of the statute as an abstraction or apply it in hypothetical fact situations; rather we judge the regulation in the light of the conduct to which it is applied. United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 599, 9 L.Ed.2d 561 (1963); Brennan v. OSHRC and Santa Fe Transport Co., 505 F.2d 869 (10th Cir. 1974).

29 C.F.R. § 1926.28(a) reads as follows: "Personal protective equipment. (a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees."

In Jensen Constr. Co. v. OSHRC, 597 F.2d 246 (10th Cir. 1979), we upheld that same regulatory provision against a challenge of impermissible vagueness and upheld the Commission's finding of a violation. We have considered each of Austin's attempts to distinguish the instant case from Jensen and find them unpersuasive. In Jensen the construction company permitted its employees to work astride structural beams seventeen to twenty-three feet above a travelled expressway with no protective equipment. In the instant case, the welder was balancing with each foot on a narrow railing, approximately nineteen feet above the ground, which was littered with equipment and angle iron. In Jensen and this case, the hazardous conduct could have been discovered simply by checking the employee's position.

The fact that the employee in this case apparently was exposed to the hazardous condition for a shorter period of time than the employees in the Jensen case does not require a different result. The regulation makes no exception for hazardous conditions of short duration. Austin points out that if the employee fell straight down he could have landed on the stairway platform only eighteen inches below. This possibility of a fortunate fall does not cure the hazardousness of the situation since it does not disspell the real possibility that the employee would fall away from the platform. Thus, we hold that the regulation, as it applies here, is not void for vagueness.

B

Austin also argues the Secretary failed to establish that the welder's activity involved a recognized hazard or that the employer failed to require personal protective equipment. As we have indicated in comparing the instant case with Jensen, we believe the fall hazard here was obvious. It was unnecessary in this case for the Secretary to establish a hazard recognized by the construction industry. See CTM, Inc. v. OSHRC, 572 F.2d 262, 264 (10th Cir. 1978). Cf. S&H Riggers & Erectors, 1979 OSHD P 23,480, p. 28,438 (fall hazard established when a reasonable person familiar with the circumstances would recognize a hazard requiring protective equipment). The administrative law judge found that Austin recognized the hazardous condition. That finding is supported by substantial evidence in the record; the employer's own written safety policy required protective equipment for all employees working at elevations of four feet or higher. It contained no variance or exception for tack welding above that height.

C

Austin next contends that 29 C.F.R. § 1926.28(a) has been rendered invalid and unenforceable by the Secretary's failure to comply with 5 U.S.C. § 553 and 29 U.S.C. § 655(b) in amending this section. ² As we have indicated, our jurisdiction in this case is predicated on 29 U.S.C. § 660(a), which limits the scope of our review to consideration of objections raised in the proceeding below. "No objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." Id. Austin did not raise its objection with respect to section 1926.28(a) in the proceeding below, nor has the company suggested to this Court any extraordinary circumstances which could excuse the failure to make the objection below. We are, therefore, without jurisdiction to consider this objection. Cf. Stockwell Mfg. Co. v. Usery, 536 F.2d 1306 (10th Cir.) (no jurisdiction exists under 29 U.S.C. § 660(a) to consider claim of deprivation of constitutional rights not raised by petitioner in proceedings before the hearing judge).

D

Austin argues there was no evidence that the employer had knowledge of the violation; it claims the...