Century Steel Erectors, Inc. v. Dole

• Decision Date: 03 October 1989
• Docket Number: No. 88-1621,88-1621
• Parties: , 58 USLW 2243, 14 O.S.H. Cas.(BNA) 1273, 1989 O.S.H.D. (CCH) P 28,682 CENTURY STEEL ERECTORS, INC., Petitioner, v. Elizabeth DOLE, Secretary of Labor, United States Department of Labor, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1399

888 F.2d 1399

281 U.S.App.D.C. 202, 58 USLW 2243,

14 O.S.H. Cas.(BNA) 1273,

1989 O.S.H.D. (CCH) P 28,682

CENTURY STEEL ERECTORS, INC., Petitioner, v. Elizabeth DOLE, Secretary of Labor, United States Department of Labor, Respondent.

No. 88-1621.

United States Court of Appeals District of Columbia Circuit.

Argued April 17, 1989.

Decided Oct. 3, 1989.

Richard R. Nelson II, Pittsburgh, Pa., for petitioner.

Barbara A. W. McConnell, Counsel, U.S. Dept. of Labor, with whom Cynthia L. Attwood, Associate Sol., Occupational Safety and Health Review Com'n, and Ann Rosenthal, Counsel, U.S. Dept. of Labor, Washington, D.C., were on the brief, for respondent.

Before BUCKLEY and WILLIAMS, Circuit Judges, and ROBINSON, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Century Steel Erectors, Inc. petitions for review of an Occupational Safety and Health Review Commission order finding Century in violation of 29 C.F.R. Sec. 1926.105(a). That regulation requires employers to provide safety nets at workplaces more than twenty-five feet above a surface where the use of other protective devices (e.g., safety belts) is impractical. The Commission determined that Century failed to safeguard its workers from a forty-foot fall and refused to consider Century's evidence that the steel erection industry's custom and practice was not to use safety belts while performing the job involved in this case. As we conclude that the Commission erred in dismissing Century's defense based on industry practice, we reverse and remand for further consideration.

I. BACKGROUND

On June 16, 1987, employees of Century Steel Erectors, Inc. ("Century") were dismantling a temporary overhead scaffolding structure made of steel bar joists (cross-beams) that had been tack-welded to large H-beams. The workers burned off tack welds (a process that takes only fifteen to forty seconds per weld) to remove the bar joists, moving quickly from one weld to the next. While engaged in this task, one of Century's employees plunged approximately forty feet to his death. See Secretary of Labor v. Century Steel Erectors, Inc., Docket No. 87-1348, ALJ Decision and Order at 3-6 (1988) ("Order").

The next day (June 17), Compliance Officer William Draper of the Occupational Safety and Health Administration ("OSHA") inspected Century's work site, where the dismantling operation was continuing. On observing workers wearing safety belts whose lanyards were not fastened to a secure object or safety line, he directed Century's foreman to instruct the employees to "tie off" (i.e., secure) the lanyards. Id. at 5. See 29 C.F.R. Sec. 1926.107(b) (1988) (describing lanyards).

Shortly thereafter, OSHA cited Century under 29 C.F.R. Sec. 1926.105(a) (1988) ("section .105(a)") for failure to ensure that its employees use safety belts while burning off the welds. Section .105(a) reads:

Sec. 1926.105 Safety nets.

(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.

After Century contested the citation, a hearing took place before an administrative law judge ("ALJ").

The ALJ apparently accepted Draper's opinion that safety nets could not have been hung at Century's work site. Order at 5. The ALJ also acknowledged Century's "well-established safety program," which included written rules requiring employees to wear safety belts when working in a stationary position, but not when performing jobs that required mobility (e.g., removing tack welds). Id. at 6. Although the use of nets was not feasible and Century had complied with its own safety rules during the dismantling operation, the ALJ held that the Secretary of Labor ("Secretary") had established a prima facie case by showing that none of the fall protection devices mentioned in section .105(a) had been used to protect workers from a fall of over twenty-five feet. Id. at 7-9 (citing Brock v. L.R. Willson & Sons, 773 F.2d 1377, 1383-84 (D.C.Cir.1985) ("Willson III ")). Specifically, the ALJ concluded that Century's employees had not worn secured safety belts on either June 16 or 17 while removing the bar joists and H-beams, based on evidence that Century had a policy of not requiring workers to tie off during this procedure, that the employees customarily did not do so, and that the only time the workers secured themselves was after prompting from Draper on June 17. Order at 8-9.

In response, Century maintained that it was impractical for workers engaged in removing tack welds to use safety belts. In support of this position, several experienced Century ironworkers testified that it was not industry custom and practice to "tie off" belts during the process of burning off tack welds because it deprived workers of the mobility needed to perform this task and created the danger of snagged lanyards. (See Hearing Transcript at 391-94 (Beton testimony); 475-76 (Weber testimony); 525-32 (Schagle testimony).)

The ALJ, however, rejected this defense. First, he determined that tying off would have been feasible because mobility would not have been unduly hampered and any snagging hazard could have been avoided by taking the same precautions used to prevent welding torch hoses from snagging. Order at 10. Second, he concluded that Century's compliance with industry custom and practice was no defense to a violation of a "specific standard" such as section .105(a). Id. at 11 (citing Willson III, 773 F.2d at 1387).

Accordingly, the ALJ found that Century had committed a "serious" violation as defined in 29 U.S.C. Sec. 666(k)--"a substantial probability that death or serious physical harm could result" from the hazardous workplace practice. Order at 13. As the Occupational Safety and Health Review Commission ("OSHRC" or "Commission") declined to review the ALJ's decision, it became the agency's "final order" under 29 U.S.C. Sec. 661(j). Century has petitioned for review. See id. Sec. 660(a).

II. DISCUSSION

A. The Legal Framework

1. Section .105(a)

Pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. Secs. 651-678 (1982), the Secretary of Labor has promulgated safety regulations for the construction industry, see 29 C.F.R. Part 1926 (1988), which OSHRC interprets in the context of adjudications. Willson III, 773 F.2d at 1383. Part 1926 contains two types of regulations. Some are general, such as section 1926.28(a) ("appropriate personal protective equipment" is required "in all operations where there is an exposure to hazardous conditions"). Other regulations, by contrast, apply to specific industries (e.g., subsections .750-.752 cover steel erectors) and contain particularized requirements. See, e.g., 29 C.F.R. Sec. 1926.750(a)(1) (requirements for temporary flooring in tiered buildings). General construction safety standards apply to all industries and workplaces unless a specific standard covers the same hazard-creating "condition, practice, means, method, operation, or process." See id. Sec. 1910.5(c), construed in L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 669-70 (D.C.Cir.1982) ("Willson I "), and Willson III, 773 F.2d at 1380-81.

The regulation at issue here, section .105(a), declares that "[s]afety nets shall be provided when workplaces are more than 25 feet above the ground ... where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical." We have often characterized this regulation as "general." See, e.g., Willson I, 685 F.2d at 669-70, 673, 677; Willson III, 773 F.2d at 1380; Donovan v. Williams Enters., Inc., 744 F.2d 170, 179 (D.C.Cir.1984). The Willson cases have clarified the regulation's meaning and scope.

Willson I involved the Secretary's citation of a steel erection company under section .105(a) for failure to maintain perimeter netting outside a building under construction. The court found that section .105(a) plainly "suggests that if safety belts are practical then safety nets are not required." 685 F.2d at 674. Interpreting the word "impractical" in section .105(a) to mean both "not practical" and "not actually used," we rejected the Secretary's attempt to read "impractical" as meaning "the inability to use belts at all times." Id. at 674-75 (emphasis added). Instead, we held that the inability to wear safety belts during a "significant period of the work day" renders them "impractical" as a fall protection measure, thereby triggering the requirement of safety nets. Id. at 675. We concluded that the Secretary had failed to carry his burden of proving that the employees did not use safety belts "during a substantial portion of the work day" to protect against exterior falls. Id.

In Willson III, which also involved a citation for failure to use perimeter netting, we reaffirmed that section .105(a) applied to steel erectors and required them to use safety nets to prevent exterior falls where the use of the other listed safety devices was impractical. 773 F.2d at 1381-83. We emphasized that Willson I had ruled only that section .105(a) did not require an employer to use safety nets where his workers wore a practical alternative device (safety belts) for a "substantial portion of the work day"; this latter test did not come into play where "the employer's failure to provide any form of fall protection" precluded the use of protective devices at any time. Id. at 1385-86.

Finally, we determined that section .105(a) gave employers adequate notice that it applied to the steel erection industry and required use of one of the appropriate listed devices to protect against exterior falls. Id. at 1386-87. Rejecting the employer's contention that the industry's practice was not to use netting in these circumstances, we remarked:

[This argument] alludes to cases in which courts have remedied facial...