Brennan v. Occupational Safety and Health Review Com'n

• Decision Date: 10 March 1975
• Docket Number: D,417,Nos. 357,s. 357
• Citation: 513 F.2d 1032
• Parties: 2 O.S.H. Cas.(BNA) 1641 Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Underhill Construction Corporation, Respondents. UNDERHILL CONSTRUCTION CORP. and Dic Concrete Corp., individually and as participants in a joint venture known as Dic-Underhill, a joint venture, Petitioners, v. Peter J. BRENNAN and Occupational Safety and Health Review Commission, Respondents. ockets 74-1579, 74-1568.
• Court: U.S. Court of Appeals — Second Circuit

Page 1032

513 F.2d 1032

2 O.S.H. Cas.(BNA) 1641

Peter J. BRENNAN, Secretary of Labor, Petitioner, v.OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION andUnderhill Construction Corporation, Respondents.

UNDERHILL CONSTRUCTION CORP. and Dic Concrete Corp.,

individually and as participants in a joint

venture known as Dic-Underhill, a joint

venture, Petitioners, v.Peter J. BRENNAN and Occupational Safety and Health Review

Commission, Respondents.

Nos. 357, 417, Dockets 74-1579, 74-1568.

United States Court of Appeals Second Circuit.

Argued Jan. 31, 1975.

Decided March 10, 1975.

Eloise E. Davies, Atty., Dept. of Justice(William J. Kilberg, Sol. of Labor, James D. Henry, Deputy Associate Solicitor, Michael H. Levin, Helen Schuitmaker, Attys., Dept. of Labor, Carla A. Hills, Asst. Atty. Gen., Stephen F. Eilperin, Atty., Dept. of Justice, of counsel), for petitioners-cross-respondents.

William J. Pastore, Sacks, Montgomery, Molineaux & Pastore, New York City, for respondents-cross-petitioners.

Before MEDINA, OAKES and GURFEIN, Circuit Judges.

OAKES, Circuit Judge:

This case involves important questions relating to occupational safety in the construction industry.Dic-Underhill, a joint enterprise made up of Underhill Construction Corp. and Dic Concrete Corp., was engaged as a subcontractor ¹ in the construction of a high-rise housing project in the Bronx, New York.On November 22 and November 27, 1972, a compliance officer or inspector under the Occupational Safety and Health Act ²(the Act), Mr. Grudzwick, inspected the partially completed structure and issued certain citations for "serious" and "non-serious"³ violations of rules setting forth safety standards (29 C.F.R. § 1926.250(b)(1)and§ 1926.500(d)(1) ) promulgated under § 655 of the Act by the Secretary of Labor.The Occupational Safety and Health Review Commission(OSHRC) upheld findings by the administrative law judge first of no violation of the nonserious charges based on the inapplicability of 29 C.F.R. § 1926.250(b)(1), which the Secretary petitions us to review, and second of a violation of the serious charge, under § 1926.500(d)(1), which Dic-Underhill petitions us to review.Jurisdiction here lies under 29 U.S.C. § 660.

The charge of a "nonserious" violation related to 29 C.F.R. § 1926.250(b)(1), which states that

Material stored inside buildings under construction shall not be placed within 6 feet of any hoistway or inside floor openings, nor within 10 feet of an exterior wall which does not extend above the top of the material stored.

Two separate incidents were involved in this citation.The first was on the eleventh floor of Bulding C in the housing project, where shoring material consisting of "four by fours," 4 X4 X8', was being stored.That floor in the partially completed structure had neither an exterior wall nor any temporary perimeter guard.The material was stacked in a pile four feet wide and four and one-half feet high, and it extended approximately a foot into space over the edge of the floor.Bricklayers, apparently not employees of Dic-Underhill, were observed several floors below, working on a scaffold directly beneath the overhanging materials.

On the fourteenth floor of another building in the project, the OSHA inspector observed a similar situation.There, in a building which was likewise partially completed with no exterior walls or perimeter guards on the upper floors, steel braces were being stored at the edge of the structure.The braces, used to tie in concrete forms, were in stacks of eight about three feet wide and three feet high, and like the shoring material in the other building they extended approximately a foot over the edge.A number of workers were directly below the overhanging braces, but there was no proof that any of these workers were employees of Dic-Underhill.In each instance the materials were purposely stored overhanging the edge in order to facilitate their being hoisted by crane for reuse on other floors.

The nonserious violation, which carried with it a proposed $35 penalty, was contested by Dic-Underhill.After hearing, the citation was vacated by the administrative law judge on two grounds.First, he quite remarkably read the standard, 29 C.F.R. § 1926.250(b)(1), as prohibiting only the storing of material within six feet of any hoistway or inside floor openings (emphasis in his original).He thus viewed the standard as intended only "to prevent material from falling into openings in the floors, and not to protect material from falling off the floors and outside the building."Secondly, he found no evidence to demonstrate that Dic-Underhill employees were directly exposed to the hazard contemplated by 29 C.F.R. § 1926.250(b)(1), that is, being injured by falling material.

OSHRC review upheld this decision.The petitioning Secretary of Labor argues (1) that the plain language of 29 C.F.R. § 1926.250(b)(1) makes it applicable to the present case, (2) that proof of direct employee exposure to a hazard is not necessary to prove a violation of the Act, and (3) that even if direct exposure was necessary, it was proved here since all employees who must move around a construction site can be said to be directly exposed to a hazard such as the one here involved.

The second citation issued to Dic-Underhill concerned a serious violation of 29 C.F.R. § 1926.500(d)(1), which provides

Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.The railing shall be provided with a standard toe-board wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.⁴

Three separate incidents involving a violation of this regulation were noted by the compliance officer.On November 22, 1972, inspection on the fifteenth floor of Building D in the housing complex 150 feet above ground found two field engineers, wearing no safety equipment whatsoever, "checking targets"⁵ located at the edge of a floor with no perimeter guarding.There was some dispute as to whether the men could have done their work had the perimeter protection been in place, ⁶ but since this was at most an affirmative defense, under 29 U.S.C. § 661(f)andFed.R.Civ.P. 8(c), the burden was on the employer to prove that this was not the case, a burden unsatisfied below or here.SeeNLRB v. Mastro Plastics Corp., 354 F.2d 170, 176-77(2d Cir.1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682(1966).

On November 27, 1972, while inspecting the seventeenth floor of Building B, 170 feet above ground, Mr. Grudzwick again found no perimeter protection.He also observed a man standing some 15 feet from the edge of the floor who identified himself as a Dic-Underhill employee.There was no conclusive evidence that the man was actually assigned to work on that floor, but the evidence was that he had a hammer in his hand.

In an inspection of the eighteenth floor of Building B, 180 feet above ground, also on November 27, 1972, the compliance officer observed two of Dic-Underhill's employees sanding a ceiling with a machine called a Giraffe.The men were working some 10-feet from the edge of the floor, which was at that time open sided.No perimeter guard was present, and the men were wearing no safety belts or other protective equipment.

On the basis of these observations, a serious violation of 29 C.F.R. § 1926.500(d)(1) was issued and a penalty of $800 proposed.The administrative law judge upheld the issuance of the citation, but reduced the amount of the penalty to $600.OSHRC review upheld the judge in all respects.⁷

The three issues raised by the cross-appeals are as follows:

1.Whether the language of 29 C.F.R. § 1926.250(b)(1)(the "nonserious" violation) is sufficiently clear to make it applicable to a situation where, as here, the materials were stacked at the edge of a floor in order to facilitate construction;

2.Whether there must be proof both of the existence of a hazard attributable to an employer, and direct exposure to the hazard by the employees of that employer; and

3.If so, whether that proof was met by the facts presented here in connection with the "serious" violation of 29 C.F.R. § 1926.500(d)(1).

The question of the coverage of 29 C.F.R. § 1926.250(b)(1) is easily disposed of.The administrative law judge's finding that the standard had application only to prevent material from falling into interior openings in floors is clearly erroneous.The standard quite plainly states that "Material stored inside buildings under construction shall not be placed within 6 feet on any hoistway or inside floor openings, nor within 10 feet of an exterior wall which does not extend above the top of the material stored"(emphasis added).The plain language of the regulation refers to the situation here, where a hazard was created by Dic-Underhill, a hazard involving the likely possibility that material could fall from the exterior of a building.Only the narrowest reading of the standard, a reading which we are not prepared to give, would lend any credence to Dic-Underhill's argument that the materials in question were not "stored" since they were going to be reused.All construction materials are "stored" until they are incorporated in the building or reused.We similarly reject their argument that the regulation could be violated with impunity because it interfered with their construction practice.Congressional authority to the Secretary of Labor was broad enough, 29 U.S.C. § 655(a), (b), and when viewed in connection with available remedies by way of individual administrative variances, § 655(d), or judicial review of the standards, § 655(f), this defense must be rejected here.Moreover, even if...