Brennan v. Southern Contractors Service, No. 73-2682. Summary Calendar.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtGEWIN, COLEMAN and MORGAN, Circuit
Citation492 F.2d 498
PartiesPeter J. BRENNAN, Secretary of Labor, Petitioner, v. SOUTHERN CONTRACTORS SERVICE and Occupational Safety and Health Review Commission, Respondents.
Docket NumberNo. 73-2682. Summary Calendar.
Decision Date12 April 1974

492 F.2d 498 (1974)

Peter J. BRENNAN, Secretary of Labor, Petitioner,
v.
SOUTHERN CONTRACTORS SERVICE and Occupational Safety and Health Review Commission, Respondents.

No. 73-2682. Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

April 12, 1974.


492 F.2d 499

Walter H. Fleischer, Stanton R. Koppel, Stephen F. Eilperin, U. S. Dept. of Justice, Washington, D. C., for petitioner.

Allen H. Sachel, Sp. Counsel, William McLaughlin, Executive Sec., Occ. Safety & Health Review Comm., Washington, D. C., for respondents.

Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

GEWIN, Circuit Judge:

Pursuant to 29 U.S.C. § 660(b),1 the Secretary of Labor appeals from a final order of the Occupational Safety & Health Review Commission (the Commission) which found that regulation 29 C.F.R. 1926.105(a) (1973), under which Southern Contractors Service Company (Southern) had been charged with a serious violation, was inapplicable to the facts alleged in the complaint. This regulation provides as follows:

"(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical."

It is solely upon an interpretation of the language employed therein that the disposition of this appeal is contingent. The Commission maintains that where the use of one of the safety devices listed in this regulation is practical, then resort to safety nets is not required even though the practical device is not in fact utilized by the employer.2 Concluding that this construction is infirm, we reverse.

I

The Occupational Safety & Health Act of 1970, 29 U.S.C. § 651 et seq. (1970), was enacted to provide "so far as possible every working man and woman in the Nation safe and healthful working conditions. . . ." 29 U.S.C. § 651. To effectuate this benevolent purpose, Congress authorized the Secretary of Labor, charged with enforcing the Act, to "set mandatory occupational safety and health standards. . . ." 29 U. S.C. § 651(b) (3). Employer noncompliance with the standards promulgated by the Secretary may result in the issuance of citations and the imposition of fiscal penalties. See 29 U.S.C. §§ 658(a), 659(a), 666.

The facts which gave rise to the sanctions imposed by the Secretary and subsequently vacated by the Commission are uncontroverted. Southern was engaged in disassembling the structural steel members of a missile launching tower at

492 F.2d 500
Launch Complex 34, Cape Kennedy Air Force Station, Cape Kennedy, Florida. Although its employees were required to work at various heights on the 300 foot structure, Southern failed to utilize any of the safety measures prescribed by 29 C.F.R. 1926.105(a). The tragic death of Darrell Ramsey, a Southern employee who fell from an exposed beam on the launching tower, brought Southern's dereliction to the attention of the Secretary of Labor.3 An inspection4 of the missile launching tower by a compliance officer of the Occupational Safety & Health Administration confirmed the allegations of Southern's noncompliance with 29 C.F.R. 1926.105(a) and inexorably led to the issuance of a citation for a serious violation of the Act5 and the imposition of a $500 penalty

Pursuant to section 659(a), Southern sought review of the Secretary's decision to impose these sanctions. At the proceedings conducted before the Administrative Law Judge, a safety specialist with the Air Force testified, at the behest of the Secretary, that in a dismantling operation such as the one conducted at Launch Complex 34 only safety belts with lanyards could properly protect workers while at the same time afford them the mobility required. Such safety belts, he claimed, would have been the practical safety equipment to utilize. The Administrative Law Judge ascribed paramount significance to this testimony, but much to the Secretary's chagrin, seized upon it as the rationale for retracting not countenancing the sanctions imposed by the Secretary. His reasoning was as follows:

"The regulation in issue requires safety nets `where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is
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45 practice notes
  • American Federation of Government Emp. v. Hoffmann, Civ. A. No. 75-G-0652-NE.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • August 13, 1976
    ...is reasonable, even though that interpretation may not appear as reasonable as some others. Brennan v. Southern Contractors Services, 492 F.2d 498 (5th Cir.1974); Roy Bryant Cattle Co. v. United States, 463 F.2d 418, 420 (5th Cir.1972); Allen M. Campbell Co., General Contractors, Inc. v. Ll......
  • Marshall v. Daniel Const. Co., Inc., No. 76-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 1977
    ...Moreover, as the Secretary's interpretation of OSHA's requirements is entitled to "great weight," Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir. 1974), Daniel has the burden of proving that the Secretary's regulation is inconsistent with his congressional grant of auth......
  • United Steelworkers of America, AFL-CIO-CLC v. Schuylkill Metals Corp., AFL-CIO-CLC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 2, 1987
    ...v. Southwestern Industrial Contractors & Riggers, Inc., 576 F.2d 42, 44-45 (5th Cir.1978); Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir.1974); see RSR Corp. v. Brock, 764 F.2d 355, 365 (5th Cir.1985). We have held repeatedly "that the Secretary's interpretation 'is co......
  • Donovan v. Anheuser-Busch, Inc., ANHEUSER-BUSC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 20, 1982
    ...the interpretation of the Commission is inconsistent with unequivocal language of the regulation; Brennan v. Southern Contractors Service, 492 F.2d 498, at 501 (C.A. 5 1974), holding that the interpretation of the Secretary, conflicting with that of the Commission, is controlling; and Marsh......
  • Request a trial to view additional results
45 cases
  • American Federation of Government Emp. v. Hoffmann, Civ. A. No. 75-G-0652-NE.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • August 13, 1976
    ...is reasonable, even though that interpretation may not appear as reasonable as some others. Brennan v. Southern Contractors Services, 492 F.2d 498 (5th Cir.1974); Roy Bryant Cattle Co. v. United States, 463 F.2d 418, 420 (5th Cir.1972); Allen M. Campbell Co., General Contractors, Inc. v. Ll......
  • Marshall v. Daniel Const. Co., Inc., No. 76-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 1977
    ...as the Secretary's interpretation of OSHA's requirements is entitled to "great weight," Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir. 1974), Daniel has the burden of proving that the Secretary's regulation is inconsistent with his congressional grant of auth......
  • United Steelworkers of America, AFL-CIO-CLC v. Schuylkill Metals Corp., AFL-CIO-CLC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 2, 1987
    ...v. Southwestern Industrial Contractors & Riggers, Inc., 576 F.2d 42, 44-45 (5th Cir.1978); Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir.1974); see RSR Corp. v. Brock, 764 F.2d 355, 365 (5th Cir.1985). We have held repeatedly "that the Secretary's interpretati......
  • Donovan v. Anheuser-Busch, Inc., ANHEUSER-BUSC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 20, 1982
    ...the interpretation of the Commission is inconsistent with unequivocal language of the regulation; Brennan v. Southern Contractors Service, 492 F.2d 498, at 501 (C.A. 5 1974), holding that the interpretation of the Secretary, conflicting with that of the Commission, is controlling; and Marsh......
  • Request a trial to view additional results

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