B & B Insulation, Inc. v. Occupational Safety and Health Review Com'n

• Decision Date: 16 November 1978
• Docket Number: No. 77-2211,77-2211
• Parties: 6 O.S.H. Cas.(BNA) 2062, 1978 O.S.H.D. (CCH) P 23,151 B & B INSULATION, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and F. Ray Marshall, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1364

583 F.2d 1364

6 O.S.H. Cas.(BNA) 2062, 1978 O.S.H.D. (CCH) P 23,151

B & B INSULATION, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and F. Ray Marshall, Secretary of Labor, Respondents.

No. 77-2211.

United States Court of Appeals Fifth Circuit.

Nov. 16, 1978.

P. Allan Port, Houston, Tex., for petitioner.

Carin A. Clauss, Sol. of Labor, U. S. Dept. of Labor, Benjamin W. Mintz, Assoc. Sol. for OSHC, Allen H. Feldman, Asst. Counsel for Appellate Litigation, Nancy L. Southard, Atty., Ray H. Darling, Jr., Executive Secretary, OSHRC, Thomas L. Holzman, Michael Levin, Counsel for Appellate Litigation, U. S. Dept. of Labor, Washington, D. C., for respondents.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before RONEY, RUBIN and VANCE, Circuit Judges.

RONEY, Circuit Judge:

This Occupational Safety and Health Act case raises the question of whether an employer can be held in violation of a general federal admonition (29 C.F.R. § 1926.28(a)) to require the "wearing of personal protective equipment" where there is "an exposure to hazardous conditions" where his conduct is representative of that of employers in his industry under similar circumstances. In holding that the employer cannot be so held, we sustain the regulation against a Facial constitutional challenge, but limit its application to those conditions which the cited employer's industry would recognize as hazards requiring the use of safety equipment, the absence of which constitutes a violation. The result in this case is to reverse the Commission's assessment of a nonserious violation on the ground that there is not substantial evidence in the record to support a finding that a reasonably prudent employer in the insulation industry would have understood that the use of safety belts was mandated by the conditions for which B&B was cited.

The employer, B & B Insulation, Inc. (B&B), pursuant to § 11 of the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C.A. § 651 Et seq., petitioned for review of a final order of the Occupational Safety and Health Review Commission (Commission). This Court has jurisdiction under 29 U.S.C.A. § 660(a). The Commission determined that B&B violated section 5(a)(2) of the Act, 29 U.S.C.A. § 654(a)(2), by failing to comply with 29 C.F.R. § 1926.28(a), a safety standard promulgated thereunder. ¹

The facts of an accident which led to the citation are undisputed. B&B is an insulation subcontractor which employs approximately 250 employees. On August 9, 1974, B&B was engaged in insulation of steam pipes at a lumber company. The 8-inch steam pipe being insulated was located approximately 23 feet above the ground. Two feet above the steam pipe was a network of steel girders supporting a conveyor belt. Two feet below was a series or "rack" of three parallel pipes on which the foreman and one employee stood. The rack consisted of a 16-inch and a 14-inch pipe separated by a 15-inch space through which ran a third pipe of unspecified diameter. The foreman and an employee straddled the center pipe with one foot on each outside pipe and walked down the rack as insulation of the steam pipe progressed. A third employee, who remained on the ground tied sections of the insulation to a rope which was pulled up by the employee on the rack. The sections were then carried along the rack and delivered to the foreman who placed them around the steam pipe.

The insulation was secured with stainless steel wire until a permanent covering could be installed. The coil of wire remained on the ground with the running end trailing from the foreman's position on the rack. Nine feet below the rack, mounted on poles, ran the energized and uninsulated power lines of an electric trolley used to transport lumber.

On the date in question, the trailing wire came into contact with the power line and electrocuted the foreman. When the other employee on the rack touched the foreman's body, he received an electrical shock, lost consciousness, and fell backward over the pipes and into a concrete ditch below, fracturing his skull. Neither the foreman nor the employee wore a safety belt.

In response to this accident, an Occupational Safety and Health Administration (OSHA) compliance officer inspected the worksite on August 13 and 14, 1974. B& B was cited for a nonserious violation ² because of failure to require its employees to use personal protective equipment, as required by 29 C.F.R. § 1926.28(a). ³ The citation was grounded on the failure to require the use of safety belts or lifelines.

B&B timely contested the citation and the $90 penalty, 29 U.S.C.A. § 659(c), and the Secretary of Labor filed a formal complaint. 29 C.F.R. § 2200.33. The administrative law judge vacated the citation and proposed penalty, finding "no evidence in the record to show that a reasonably prudent person, fully knowledgeable of the insulation installation business would have known that safety belts and lifelines would be necessary equipment within the meaning and intent of section 29 C.F.R. § 1926.28(a)." On review the Commission reversed the decision by a 2-1 vote, affirming the citation and imposing a $90 penalty.

B&B argues that 29 C.F.R. § 1926.28(a) is unenforceably vague for failure to provide employers with reasonable notice of what is required. We share B& B's concern with the generality of the standard's command. ⁴ We conclude, however, that its requirements are not unforeseeable if the standard is read to require only those protective measures which the knowledge and experience of the employer's industry, which the employer is presumed to share, would clearly deem appropriate under the circumstances.

Because this is remedial civil legislation, rather than criminal, and because no potential deterrence of First Amendment activity is involved, the vagueness charge must be considered in light of the regulation's application. United States v. National Dairy Products Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Ryder Truck Lines, Inc. v. Brennan,497 F.2d 230, 233 (5th Cir. 1974).

Due process considerations mandate standards carrying "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947).

No Circuit Court of Appeals has yet considered a vagueness challenge to 29 C.F.R. § 1926.28(a) in its present form. The regulation was initially promulgated pursuant to authority granted the Secretary of Labor in § 107 of the Contract Work Hours and Safety Standards Act, 40 U.S.C.A. § 333 (1969). When adopted by the Secretary on May 29, 1971 as an OSHA standard under 29 U.S.C.A. § 655(a), this "established Federal standard" ⁵ read as follows:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions And where this part indicates the need for using such equipment to reduce the hazards to the employees.

(Emphasis added).

As so worded, the standard was held unenforceably vague by the Ninth Circuit in Hoffman Construction Co. v. OSHRC, 546 F.2d 281 (9th Cir. 1976), when applied to the asserted need for safety lines attached to a structure on which employees were working forty feet above the ground. The court acknowledged the danger involved as a matter of "general intuition." Noting the conjunctive structure of the standard's command, however, the court found no specific instructions among the subsections of Part 1926 to tell the employer when protective equipment is required. 546 F.2d at 283.

The regulation was reworded on December 16, 1972 to substitute "or" for the "and" in italics above. 37 Fed.Reg. 27,510 (1972). The Hoffman court expressly declined to comment on the revised versions. ⁶ 546 F.2d at 283 n.5.

Although the Commission has consistently upheld the standard as not unenforceably vague, each decision by the Commission has produced as many conflicting interpretations as there were participating commissioners, both under the old regulation, ⁷ and the new. ⁸ This case itself was decided with three different written opinions. This continuing "three-way split in the interpretation of the standard," as referred to in the concurring opinion of Commissioner Cleary, might well evidence to some the very vagueness charged by the petitioner. If the regulation is such that the commissioners themselves cannot agree upon what it demands, it may seem to require different things to different employers, the cornerstone of the uncertainty argument.

For the objectivity needed to rescue § 1926.28(a) from unconstitutional uncertainty, however, we look to cases construing analogous OSHA standards and to the tort law concept of the "reasonable man." Several circuits have upheld, despite its lack of precision, 29 C.F.R. § 1910.132(a), the subject standard's general industry analogue. ⁹ This Court rejected the employer's vagueness claim in Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974), finding that section drafted "with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury." The Court identified as inherent in the standard, the test of whether or not a reasonable person would have recognized the hazard. In Ryder the hazard recognized by the "reasonable person" to warrant use of protective footwear was that of foot injuries to dock workers in contact with heavy freight and equipment in a confined area.

The "reasonable person" test was also read into 29 C.F.R. § 1910.132(a) by the Fourth Circuit in McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4th Cir. 1974). Again the use of protective footwear for loading dock workers was the safety obligation of which the employer was deemed to have notice. The reasonable person approach, the Court noted,...