Brock v. Dun-Par Engineered Form Co., DUN-PAR

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore McMILLIAN, ARNOLD and BOWMAN; McMILLIAN
Citation843 F.2d 1135
Docket NumberDUN-PAR,No. 86-2365
Decision Date06 April 1988
Parties, 13 O.S.H. Cas.(BNA) 1652, 1988 O.S.H.D. (CCH) P 28,178 William E. BROCK, Secretary of Labor, Petitioner, v.ENGINEERED FORM COMPANY, and Occupational Safety & Health Review Commission, Respondents.

Page 1135

843 F.2d 1135
56 USLW 2595, 13 O.S.H. Cas.(BNA) 1652,
1988 O.S.H.D. (CCH) P 28,178
William E. BROCK, Secretary of Labor, Petitioner,
v.
DUN-PAR ENGINEERED FORM COMPANY, and Occupational Safety &
Health Review Commission, Respondents.
No. 86-2365.
United States Court of Appeals,
Eighth Circuit.
Submitted Nov. 10, 1987.
Decided April 6, 1988.

Laura V. Fargas, Washington, D.C., for petitioner.

Thomas M. Moore, Kansas City, Mo., for respondents.

Before McMILLIAN, ARNOLD and BOWMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

William E. Brock, Secretary of Labor (the Secretary), appeals from an order of the Occupational Safety and Health Review Commission (the Commission) vacating a citation against Dun-Par Engineered Form

Page 1136

Co. (Dun-Par) for a serious violation of 29 C.F.R. Sec. 1926.500(d)(1) 1 (failure to provide a guard rail at the perimeter of open-sided floors). Before the Commission, Dun-Par asserted the affirmative defense of impossibility; it argued that guard rails were not possible and that there were no alternative measures of compliance available. While the Commission was satisfied that guard rails were infeasible, it did not pass on the second aspect of Dun-Par's asserted defense. Rather, the Commission held that the Secretary had the burden of demonstrating that alternative measures of compliance were available and that the Secretary had failed to carry this burden. For reversal, the Secretary argues that the Commission erred in shifting to the Secretary the burden of proving that alternative measures of compliance were available. For the reasons discussed below, we reverse and remand to the Commission for a determination of whether Dun-Par has met its burden of demonstrating that alternative means of compliance were not available.

Background

In May 1979, in response to a complaint that an employee had fallen from the perimeter of a sixth floor worksite, a compliance officer of the Occupational Safety and Health Administration (OSHA) inspected a multi-story construction project in Excelsior Springs, Missouri, where Dun-Par was performing concrete formwork. Concrete formwork is the process by which the structural framework of a building is formed. A wooden formwork is erected and then filled with concrete. After the concrete hardens, the wooden mold is then torn away. The process moves upward, floor by floor, although the wooden formwork for the next floor cannot be erected until the concrete for the previous floor has hardened. At the time of the inspection, the building was partially constructed to the sixth floor. Dun-Par's employees were working on the fifth and sixth floors of the project, where there was no perimeter protection of any kind. A fall from either of the floors would result in probable death.

Following the inspection, OSHA issued citations to Dun-Par charging various repeated and non-serious violations of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. Secs. 651-678, including a repeated violation of 29 C.F.R. Sec. 1926.500(d)(1), by failing to provide perimeter guardrails on the fifth and sixth floors of the construction site. The Secretary later amended his citation to allege, in the alternative, that Dun-Par should have protected its employees against perimeter falls by providing them with safety belts under the personal protective equipment standard set forth at 29 C.F.R. Sec. 1926.28(a). 2

At a hearing before an Administrative Law Judge (ALJ), Dun-Par asserted the defense of impossibility. Under this defense, Dun-Par was required to demonstrate (a) that compliance with the guardrail standard's literal requirements was not possible or would preclude performance of Dun-Par's work, e.g., Bratton Furniture Manufacturing Co., 11 O.S.H.Cas. (BNA) 1433, 1434-35, (O.S.H.Rev.Comm'n 1983), and (b) that Dun-Par used alternative means of protection not specified in the standard, or that alternative means of protection were unavailable. Id. The ALJ rejected Dun-Par's offered defense, concluding that "[g]uardrails, cables, catch platforms, outriggers and nets, and safety belts" were all feasible methods of protecting Dun-Par's employees from the unguarded

Page 1137

perimeters of the floors under construction. Dun-Par Engineered Form Co., 12 O.S.H.Cas. (BNA) 1949, 1950 (O.S.H.Rev.Comm'n 1986) (Dun-Par) (quoting the unpublished opinion of the ALJ). The ALJ affirmed the citation for the violation of 29 C.F.R. Sec. 1926.500(d)(1), but characterized it as a serious rather than a repeated violation. The ALJ assessed a penalty of $1,620.00 for the violation.

The Commission reversed the ALJ's decision, 3 concluding that Dun-Par had successfully demonstrated its affirmative defense of impossibility. The Commission began by reinterpreting the first element of the impossibility defense, and concluded that it would be satisfied by a showing by the employer that compliance with the standard was "infeasible." Dun-Par, 12 O.S.H.Cas. (BNA) at 1956. The Commission then turned to the second element of the defense and reallocated the burden of proof as to the infeasibility of alternative methods of compliance. Id. at 1957. While prior to this case the employer had been required to prove both elements of its affirmative defense, the Commission concluded that "the burden of proposing alternative means of protection and persuading the trier of fact that the employer failed to use them more fairly rests with the Secretary." Id. The Commission then applied its newly reformulated infeasibility defense, and concluded that Dun-Par had established the infeasibility of guardrails, while the Secretary had failed to carry its burden of demonstrating the feasibility of alternative methods of compliance. Id. at 1960.

The Standard of Review

In this appeal, the Secretary concedes the correctness of the Commission's finding that Dun-Par established the infeasibility of the guardrails. 4 Rather, the Secretary challenges the Commission's reallocation of the burden of demonstrating the feasibility of alternative means of compliance to the Secretary.

This issue raises a question of law, and we accordingly review the Commission's ruling to determine whether it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A). We note, however, that the Commission's reinterpretation of the impossibility defense is owed no special deference, because "it is the Secretary, not the Commission, who exercises policymaking and prosecutorial...

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7 practice notes
  • Spancrete Northeast, Inc. v. Occupational Safety and Health Review Com'n, No. 722
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 22, 1990
    ...Sec. 1926.28(a). See, e.g., Carlyle Compressor Co. v. OSHRC, 683 F.2d 673, 674 (2nd Cir.1982); Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135, 1136 (8th Cir.1988); Voegele Company v. OSHRC, 625 F.2d 1075, 1077 (3rd Cir.1980). No such charge was made. Neither did the complaint allege a ......
  • Harry C. Crooker v. Occupational Safety and Health, No. 07-2770.
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 11, 2008
    ...of proving each of these elements. See A.J. McNulty, 283 F.3d at 334; Bancker Constr., 31 F.3d at 34; Brock v. Dun-Par Eng'd Form Co., 843 F.2d 1135, 1138-40 (8th Cir.1988). In mounting an infeasibility defense here, Crooker paints a bleak picture of awkward working conditions and on-the-jo......
  • Kmart Corp. v. County of Stearns, No. A05-442.
    • United States
    • Supreme Court of Minnesota (US)
    • February 9, 2006
    ...determinations may be overturned if they "inexplicably [depart] from established policies"); Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135, 1137-38 (8th Cir.1988) (stating that "while [the agency] may change its position, it must give adequate reasons for doing so"); Michigan v. Thoma......
  • State ex rel. Jackson Tube Serv., Inc. v. Indus. Comm'n of Ohio, No. 2017-0790
    • United States
    • United States State Supreme Court of Ohio
    • September 27, 2018
    ...112 N.E.3d 899and (2) that no alternative means of employee protection had been available. See Brock v. Dun-Par Engineered Form Co. , 843 F.2d 1135, 1136 (8th Cir.1988) (concluding that the employer has the burden to establish that alternative means of compliance were not available); Bancke......
  • Request a trial to view additional results
7 cases
  • Spancrete Northeast, Inc. v. Occupational Safety and Health Review Com'n, No. 722
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 22, 1990
    ...Sec. 1926.28(a). See, e.g., Carlyle Compressor Co. v. OSHRC, 683 F.2d 673, 674 (2nd Cir.1982); Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135, 1136 (8th Cir.1988); Voegele Company v. OSHRC, 625 F.2d 1075, 1077 (3rd Cir.1980). No such charge was made. Neither did the complaint allege a ......
  • Harry C. Crooker v. Occupational Safety and Health, No. 07-2770.
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 11, 2008
    ...of proving each of these elements. See A.J. McNulty, 283 F.3d at 334; Bancker Constr., 31 F.3d at 34; Brock v. Dun-Par Eng'd Form Co., 843 F.2d 1135, 1138-40 (8th Cir.1988). In mounting an infeasibility defense here, Crooker paints a bleak picture of awkward working conditions and on-the-jo......
  • Kmart Corp. v. County of Stearns, No. A05-442.
    • United States
    • Supreme Court of Minnesota (US)
    • February 9, 2006
    ...determinations may be overturned if they "inexplicably [depart] from established policies"); Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135, 1137-38 (8th Cir.1988) (stating that "while [the agency] may change its position, it must give adequate reasons for doing so"); Michigan v. Thoma......
  • State ex rel. Jackson Tube Serv., Inc. v. Indus. Comm'n of Ohio, No. 2017-0790
    • United States
    • United States State Supreme Court of Ohio
    • September 27, 2018
    ...112 N.E.3d 899and (2) that no alternative means of employee protection had been available. See Brock v. Dun-Par Engineered Form Co. , 843 F.2d 1135, 1136 (8th Cir.1988) (concluding that the employer has the burden to establish that alternative means of compliance were not available); Bancke......
  • Request a trial to view additional results

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