Bristol Steel & Iron Works, Inc. v. Occupational Safety and Health Review Com'n, No. 77-2485

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore WINTER and WIDENER, Circuit Judges and FIELD; FIELD; WIDENER
Citation601 F.2d 717
Parties7 O.S.H. Cas.(BNA) 1462, 1979 O.S.H.D. (CCH) P 23,651 BRISTOL STEEL & IRON WORKS, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Ray Marshall, Secretary of Labor, Respondents.
Decision Date25 June 1979
Docket NumberNo. 77-2485

Page 717

601 F.2d 717
7 O.S.H. Cas.(BNA) 1462, 1979 O.S.H.D. (CCH) P 23,651
BRISTOL STEEL & IRON WORKS, INC., Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Ray
Marshall, Secretary of Labor, Respondents.
No. 77-2485.
United States Court of Appeals,
Fourth Circuit.
Argued Jan. 9, 1979.
Decided June 25, 1979.

Page 719

James P. Jones, Abingdon, Va. (Penn, Stuart, Eskridge & Jones, Abingdon, Va., on brief), for petitioner.

Charles I. Hadden, U. S. Dept. of Labor, Washington, D. C. (Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol., for Occupational Safety and Health; Allen H. Feldman, Acting Counsel for Appellate Litigation, Dennis K. Kade, Asst. Counsel for Appellate Litigation, Washington, D. C., Marshall H. Harris, Regional Sol., Philadelphia, Pa., on brief), for respondents.

Before WINTER and WIDENER, Circuit Judges and FIELD, Senior Circuit Judge.

FIELD, Senior Circuit Judge:

Bristol Steel & Iron Works, Inc. (Bristol) appeals from an order of the Occupational Safety and Health Review Commission (Commission) holding that Bristol had violated § 5(a)(2) of the Occupational Safety and Health Act (Act), 29 U.S.C. § 651, Et seq. 1 Judicial review of the Commission's order is provided by § 11(a) of the Act, 29 U.S.C. § 660(a).

The parties stipulated to the underlying facts of the case. During an inspection by an Occupational Safety and Health Administration (OSHA) officer 2 of a work site where Bristol was engaged in skeleton steel erection, two of Bristol's employees, while rigging up a float scaffold which was to be used in skeleton steel erection, were observed on a wall, 12 to 18 inches wide, which was located on the second floor of a building and which was approximately 16 feet in height above concrete stairs. Both employees were wearing but not using safety belts, nor were they using lanyards or any other personal, protective, fall equipment. Bristol stipulated that the two employees were exposed to the hazard of falling and that if such a fall had occurred, there existed a substantial probability of serious injury or death.

Bristol was cited by the OSHA inspector 3 for violation of the general construction safety standard set forth at 29 C.F.R.

Page 720

§ 1926.28(a) 4 as well as four other standards. Bristol contested the § 1926.28(a) violation 5 but did not contest the remaining four violations. Reasoning that no specific safety standard was directly applicable to the facts presented which would preempt the general construction safety standard found in § 1926.28(a), the administrative law judge (ALJ) affirmed the citation for violation of § 1926.28(a) and assessed a $600 penalty. 6 On review the Commission affirmed the decision of the ALJ by a one-one vote. 7 Voting for affirmance, Commissioner Cleary felt that absent an applicable specific safety standard, the general construction safety standard of § 1926.28(a) was applicable and that avoidance of a duty to use safety belts under that section was an affirmative defense which had not been proven. Voting for reversal, Commissioner Barnako took the position that specific safety standards applicable to steel erection applied to the nature of the work performed by the two employees, and that these specific standards precluded the application of the § 1926.28(a) general construction safety standard; and that even if § 1926.28(a) applied, the Secretary had the burden of proving the feasibility and utility of the specific measures necessary to abate the hazard and had failed to carry that burden.
I

Not unexpectedly, Bristol adopts the position of Commissioner Barnako that the action of the Secretary in promulgating the specific safety standards applicable to steel erection in Subpart R of Section 1926 8 precludes

Page 721

a citation under the general construction standards set forth in 1926.28(a). Bristol argues that the Secretary considered the entire subject of fall protection for steel erectors in Subpart R and, accordingly, the specific standards are exclusive in this area. In our opinion, however, this argument runs counter to the legislative pattern and objectives.

The declared purpose of the Act is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources * * *." 29 U.S.C. § 651(b). Being remedial and preventative in nature, 9 the Act must "be construed liberally in favor of the workers whom it was designed to protect * * *." Southern Railway Co. v. OSHRC, 539 F.2d 335, 338 (4 Cir. 1976), Cert. den., 429 U.S. 999, 97 S.Ct. 525, 50 L.Ed.2d 609 (1976) (quoting Wirtz v. Ti Ti Peat Humus Co., 373 F.2d 209, 212 (4 Cir. 1967)). While the Act substantially contemplates specific safety standards promulgated by the Secretary, See American Smelting & Refining Co. v. OSHRC, 501 F.2d 504, 512 (8 Cir. 1974); Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340, 1343 (2 Cir. 1974), its purposes are also effectuated by the general safety standards and the general duty clause 10 which are designed to fill those interstices necessarily remaining after the promulgation of specific safety standards. 11

The specific standards relied upon by Bristol, while providing safety protection to employees engaged in steel erection, cannot achieve the goal of adequately protecting those employees in every conceivable situation. Infinite hypotheticals can be envisioned in which employees engaged in steel erection would be exposed to an unnecessary hazard not covered by a Subpart R specific safety standard. The general safety standard dealing with personal protective equipment found in 29 C.F.R. § 1926.28(a) complements the Subpart R specific standards dealing with steel erection by requiring "the wearing of appropriate personal protective equipment (where there is a need) for using such equipment to reduce the hazards to the employees."

Page 722

Bristol suggests that its position is supported by 29 C.F.R. § 1910.5(c)(1) 12 which provides that a specific standard applicable to a condition shall prevail over any different general standard which might otherwise be applicable thereto. This argument, however, elides the language of § 1910.5(c)(2) that any standard shall apply according to its terms, even though particular standards are also prescribed for an industry, to the extent that none of such particular standards apply. Were § 1910.5(c) read in the manner Bristol suggests, the Secretary would be prevented from coping with the variety of hazards not covered by the specific standards, and we decline to read it in such a limited fashion.

II

While § 1926.28(a) is not preempted by the Subpart R specific safety standards, it cannot be so broadly construed and applied as to deny Bristol reasonable notice of what safety precautions are required. 13 To satisfy due process requirements the courts have applied some form of the reasonable man test to the general duty clause and the various general safety standards found in the regulations. 14 In McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4 Cir. 1974), we rejected a vagueness challenge to 29 C.F.R. § 1910.132(a), a general personal protective equipment safety standard, by adopting "an external and objective test, namely, whether or not a reasonable person would recognize a hazard of foot injuries to dockmen * * *." 503 F.2d at 10 (quoting Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5 Cir. 1974)). The Fifth Circuit, from which the above test was quoted, continued: "So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster." 497 F.2d at 233.

This reasonable man test has recently been more fully considered by the Fifth Circuit in B. & B. Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5 Cir. 1978). Like the present case, the company in B. & B. was cited for a violation of 29 C.F.R. § 1926.28(a). Rejecting the argument that § 1926.28(a) was unenforceably vague, the court read the standard

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.

* * * (T)he employer whose activity is not yet addressed by a specific regulation and whose conduct conforms to the

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common practice of those similarly situated in his industry should generally not bear an extra burden.

Where the Government seeks to encourage a higher standard of safety performance from the industry than customary industry practices exhibit, the proper recourse is to the standard-making machinery provided in the Act, selective enforcement of general standards being inappropriate to achieve such a purpose.

583 F.2d at 1367, 1371 (footnotes omitted).

Unlike the Fifth Circuit, other courts have not limited the reasonable man test to the custom and...

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32 practice notes
  • Faultless Div., Bliss & Laughlin Industries, Inc. v. Secretary of Labor, No. 81-1740
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 30, 1982
    ...Secretary to await an industry consensus about unsafe conditions before moving to enforce. See Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979). Page 1188 Faultless also asserts, we think erroneously, that because its presses are either exempted or not covered under o......
  • Berardi v. Getty Refining & Marketing Co.
    • United States
    • United States State Supreme Court (New York)
    • December 5, 1980
    ...v. Whirlpool Corp., 6 Cir., 593 F.2d 715; Bristol Steel & Iron Works Inc. v. Occupational Safety and Health Review Commission, 4 Cir., 601 F.2d 717), intended to prevent first injury (Kent Nowlin Const. v. O.S. & H. Review Commission, 10 Cir., 593 F.2d 368; Ark.-Best Freight Systems Inc. v.......
  • S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Com'n, Nos. 79-2358
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 26, 1981
    ...citation for failure to require safety belts for workers on flat roof with sharply sloping edges); Bristol Steel & Iron Works v. OSHRC, 601 F.2d 717, 723 (4th Cir. 1979) (reversing citation for failure to require safety belts for employees erecting float scaffold on ground Secretary had fai......
  • Modern Drop Forge Co. v. Secretary of Labor, No. 81-1579
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 26, 1982
    ...at 1333; Schriber Sheet Metal & Roofers, Inc. v. OSHRC, 597 F.2d 78, 79 (6th Cir. 1979); see also, Bristol Steel & Iron Works v. OSHRC, 601 F.2d 717, 723-24 (4th Cir. 1979); National Realty & Const. v. OSHRC, 489 F.2d 1257, 1268 (D.C.Cir.1973). This case falls into the latter category since......
  • Request a trial to view additional results
32 cases
  • Faultless Div., Bliss & Laughlin Industries, Inc. v. Secretary of Labor, No. 81-1740
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 30, 1982
    ...to await an industry consensus about unsafe conditions before moving to enforce. See Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979). Page 1188 Faultless also asserts, we think erroneously, that because its presses are either exempted or not covered under other m......
  • Berardi v. Getty Refining & Marketing Co.
    • United States
    • United States State Supreme Court (New York)
    • December 5, 1980
    ...v. Whirlpool Corp., 6 Cir., 593 F.2d 715; Bristol Steel & Iron Works Inc. v. Occupational Safety and Health Review Commission, 4 Cir., 601 F.2d 717), intended to prevent first injury (Kent Nowlin Const. v. O.S. & H. Review Commission, 10 Cir., 593 F.2d 368; Ark.-Best Freight Systems......
  • S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Com'n, Nos. 79-2358
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 26, 1981
    ...for failure to require safety belts for workers on flat roof with sharply sloping edges); Bristol Steel & Iron Works v. OSHRC, 601 F.2d 717, 723 (4th Cir. 1979) (reversing citation for failure to require safety belts for employees erecting float scaffold on ground Secretary had failed t......
  • Modern Drop Forge Co. v. Secretary of Labor, No. 81-1579
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 26, 1982
    ...Schriber Sheet Metal & Roofers, Inc. v. OSHRC, 597 F.2d 78, 79 (6th Cir. 1979); see also, Bristol Steel & Iron Works v. OSHRC, 601 F.2d 717, 723-24 (4th Cir. 1979); National Realty & Const. v. OSHRC, 489 F.2d 1257, 1268 (D.C.Cir.1973). This case falls into the latter category si......
  • Request a trial to view additional results

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