Beatty Equipment Leasing, Inc. v. Secretary of Labor, U.S. Dept. of Labor
| Decision Date | 22 June 1978 |
| Docket Number | No. 76-2497,76-2497 |
| Parties | 6 O.S.H. Cas.(BNA) 1699, 1978 O.S.H.D. (CCH) P 22,899 BEATTY EQUIPMENT LEASING, INC., Petitioner, v. SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jerry M. Ackeret (argued), of Ackeret, Colteaux & Laird, San Rafael, Cal., for petitioner.
Diane E. Burkley (argued), Washington, D. C., for respondent.
On Petition to Review a Decision of the Occupational Safety & Health Review Commission.
Before MERRILL and SNEED, Circuit Judges, and EAST, * District Judge.
Petitioner Beatty Equipment Leasing, Inc. (Beatty), seeks a review of a decision of the Occupational Safety and Health Review Commission (the Commission) which upheld a citation for a nonserious violation of § 5(a)(2) of the Occupational Safety and Health Act (OSHA or the Act), 29 U.S.C. § 654(a) (2). The citation was issued for failure to comply with a scaffolding safety standard, promulgated by the Secretary of Labor under the Act. The question on this appeal is whether a materialman for a multi-employer construction site is in violation of the Act when the materialman creates a hazardous condition to which its own employees are not exposed. This court has jurisdiction under 29 U.S.C. § 660(a).
The facts in this case are not in dispute. Pursuant to a contract with the general contractor, petitioner supplied and erected a tubular-welded frame scaffold on a site at which a three-story apartment building was then under construction. The scaffolding standard promulgated by the Secretary and set forth in 29 C.F.R. § 1926.451(d)(1), states that:
"Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), and approximately 42 inches high, with a midrail of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor."
No midrails were installed by petitioner although much of the scaffolding was more than 10 feet above ground level. Petitioner's employees left the construction site after the scaffolding was installed. About one week later, an OSHA inspector visited the site and observed employees of the lathing and plastering subcontractors on the substandard scaffolds. As a result of the inspection, the Secretary of Labor cited Beatty for violating § 5(a)(2) of the Act and the scaffolding standard set forth above. A fine of $105 was proposed by the Secretary and the parties stipulated that such a fine is reasonable and appropriate if Beatty is determined to have been in violation of the standard.
Beatty contested the finding of a violation and, after a hearing, the citation and penalty were vacated by an Administrative Law Judge (ALJ). The ALJ concluded that the Secretary had not established a violation of 29 C.F.R. § 1926.451(d)(10) because, on the record, none of Beatty's employees was exposed to the alleged hazards. The Secretary then petitioned for discretionary review by the Commission and the petition was granted. The Commission, with one member dissenting, reversed the decision of the ALJ and found that the evidence did establish that Beatty was in nonserious violation of 29 C.F.R. § 1926.451(d)(10) as charged and reassessed the $105 penalty.
In its decision, the Commission conceded that it had at one time held that an employer is not liable under OSHA where its employees are not exposed to the cited conditions. However, it noted that it had modified this rule in Grossman Steel and Aluminum Corp., No. 12775, 4 OSHC 1185 (May 12, 1976), and Anning- Johnson Co., Nos. 3694 and 4409, 4 OSHC 1194 (May 12, 1976), with regard to multi-employer construction sites, 1 and stated:
" * * * we specifically adopted the court of appeals decision in Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032 (2d Cir. 1975), to the extent that it would impose liability on a subcontractor who creates a hazard or has control over the condition on a multi-employer construction site even though only employees of other subcontractors are exposed."
The Commission also found that Beatty's status as a materialman did not warrant the application of a standard different from that applied to subcontractors. It therefore concluded that the evidence did show a violation because Beatty created the hazard at the multi-employer construction site by erecting the scaffold and employees of other subcontractors were exposed to the hazard.
Beatty then filed this petition for review. It contends that the Commission acted beyond its statutory authority because petitioner was not an "employer" as the term is used in the Act because none of its employees was at the site after erecting the scaffolding and, therefore, none was exposed to the hazard.
Section 5 of the Act states that:
(a) 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."
29 U.S.C. § 654(a).
Petitioner was cited under subparagraph (2) of this section for violating the standard set forth in 29 C.F.R. § 1926.451(d)(10). As the Second Circuit noted in Brennan v. OSHRC (Underhill Construction Corp.), supra (hereinafter "Underhill ");
513 F.2d at 1038 (footnotes omitted). We agree with this interpretation of the statute. It facilitates the broad remedial purpose of the Act which Congress declared is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. § 651. As this court has stated, "Congress clearly intended to require employers to eliminate all foreseeable and preventable hazards." California Stevedore and Ballast Co. v. OSHRC, 517 F.2d 986, 988 (9th Cir. 1975). We agree with the Commission that this policy can best be...
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