Dole v. Williams Enterprises, Inc., 88-1658

• Decision Date: 06 July 1989
• Docket Number: No. 88-1658,88-1658
• Citation: 876 F.2d 186
• Parties: , 14 O.S.H. Cas.(BNA) 1001, 1989 O.S.H.D. (CCH) P 28,554 Elizabeth H. DOLE, Secretary of Labor, Petitioner, v. WILLIAMS ENTERPRISES, INC., and Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 186

876 F.2d 186

278 U.S.App.D.C. 1, 14 O.S.H. Cas.(BNA) 1001,

1989 O.S.H.D. (CCH) P 28,554

Elizabeth H. DOLE, Secretary of Labor, Petitioner, v. WILLIAMS ENTERPRISES, INC., and Occupational Safety and Health Review Commission, Respondents.

No. 88-1658.

United States Court of Appeals District of Columbia Circuit.

Argued May 4, 1989.

Decided May 30, 1989.

As Amended July 6, 1989.

Barbara A.W. McConnell, Atty., Dept. of Labor, with whom Cynthia L. Attwood and Barbara Werthmann, Washington, D.C., were on the brief, for petitioner.

Ann Rosenthal, Washington, D.C., also entered an appearance, for petitioner.

James Brent Clarke, Jr., Washington, D.C., was on the brief, for respondents.

Before WALD, Chief Judge, and ROBINSON and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

The Secretary of Labor ("Secretary") petitions for review of an order issued by the Occupational Safety and Health Review Commission ("OSHRC" or "Commission") under the Occupational Safety and Health Act ("OSHA"), 29 U.S.C. Secs. 651-78, which vacated an abatement order issued by the Secretary against Williams Enterprises, Inc., for a violation of 29 C.F.R. Sec. 1926.750(b)(1)(iii). We conclude that the Commission's order was not in accordance with governing law, and we therefore remand this case with directions to reinstate and enforce the citation against Williams.

I. BACKGROUND

Williams Enterprises, Inc. ("Williams") was the steel erection subcontractor at the Intelsat building construction site located at 4000 Connecticut Avenue, N.W., in Washington, D.C. On May 6 and 7, 1987, OSHA Compliance Officer Wilfred C. Epps conducted an inspection at the Williams worksite to determine whether the working conditions conformed to governing safety regulations. Epps discovered, inter alia, that Williams had failed to install a perimeter cable along two exposed edges of the second tier of the building structure, despite the fact that a large portion of the floor of the second tier was covered with temporary metal decking. This failure placed Williams in violation of 29 C.F.R. Sec. 1926.750(b)(1)(iii), which requires installation of a safety railing around the periphery of all temporary metal-decked floors in tier buildings. ¹ Williams' failure to install this protective measure left workers exposed to a fall hazard of 20 feet (at the southern exposure) to 30 feet (at the eastern exposure). Epps instructed Williams to abate the violation by installing a protective cable, and Williams did so. Epps proceeded to issue Williams a citation for violating the regulation, classifying the violation as "serious" as defined in section 17(k) of OSHA, 29 U.S.C. Sec. 666(k).

Williams appealed. At the hearing before the OSHRC's administrative law judge ("ALJ"), Williams targeted its questioning at two basic contentions. First, it sought to show that the tier at issue was not "fully decked"--i.e., that the temporary floor sheets had not all been put in place on the third level--in an effort to support its argument that Sec. 1926.750(b)(1)(iii) by its own terms did not apply to Williams' worksite. Second, it sought to elicit testimony that installation of the allegedly required safety cable in fact presented hazards to the workers responsible for doing the installation work.

The ALJ issued a brief opinion, Secretary of Labor v. Williams Enterprises, Inc., Docket No. 87-960, decision and order (O.S.H.R.C. (ALJ) July 11, 1988) ("ALJ op.") (reprinted in the Joint Appendix ("J.A.") at 35-42), in which he made the following relevant factual findings:

"3. The metal decking on the second tier was substantially complete. (Both Mr. Epps and [former Williams employee] Mr. Moore testified that the tier was 90% decked.... Mr. Graham [job foreman] testified that decking was 75% complete....) On the south and east sides of the second tier, decking was complete to the perimeter except for small triangular sections." ALJ op. at 2 (J.A. at 36).

"5. There was no perimeter cable at the edges of the south and east sides of the second tier.... The fall distance from the south side of the tier was 20 feet to the mechanical room roof. From the east side, the fall distance was 30 feet to the ground." ALJ op. at 3 (J.A. at 37).

"6. Respondent's employees were exposed to a fall hazard when pulling up welding lead and using the ladder." ALJ op. at 3 (J.A. at 37).

"7. Respondent's employees were exposed to a fall hazard when they installed cable on the south and east perimeters." ALJ op. at 3 (J.A. at 37).

"8. Respondent's employees received a longer exposure to the fall hazard during installation of the guardrails than during the work that made the guardrails necessary. That part of the installation requiring Respondent's employees to 'coon' across four- to eight-inch wide steel beams exposed Respondent's employees to a more serious fall hazard than pulling up welding lead and using the ladder." ALJ op. at 3-4 (J.A. at 37-38) (emphasis added).

Based on these factual findings, the ALJ determined that the regulation did apply to Williams' worksite, ALJ op. at 5 (J.A. at 39), but nevertheless concluded that "entry of an abatement order requiring the installation of perimeter cable would not provide Respondent's employees with 'appropriate' relief." ALJ op. at 6 (J.A. at 40) (citing 29 U.S.C. Sec. 659(c)).

The Secretary of Labor petitioned the full Commission for discretionary review of the ALJ's decision, but no Commissioner directed review, and the ALJ's order therefore became the final order of the Commission pursuant to 29 U.S.C. Sec. 661(j).

II. ANALYSIS

The Secretary argues that the Commission's order effectively vacated the citation against Williams under a theory of "greater hazard," but that the Commission did so without any regard whatsoever for the substantial body of law that has grown up around the "greater hazard" defense--law that, had it been observed, would have plainly precluded the doctrine's application in this case. We agree.

"Greater hazard" refers to a well-established Commission doctrine that, in brief, allows employers to escape sanctions for violations of otherwise applicable safety regulations if they can establish that the act of abating a violation would itself pose an even greater threat to the safety and health of their employees. "Greater hazard" is an affirmative defense that is subject to certain specific pleading requirements under the Commission's procedures. See 29 C.F.R. Sec. 2200.36(b). Moreover, Commission precedent clearly requires that to prevail on the "greater hazard" defense, an employer must establish the three substantive elements of the defense: "(1) the hazards of compliance with a standard are greater than the hazards of noncompliance, (2) alternative means of protection are unavailable, and (3) a variance was unavailable or inappropriate." Lauhoff Grain Co., 1986-1987 O.S.H. Dec. (CCH) p 27,814, at 26,397-98 (Rev. Comm'n 1987) (citations omitted). See also M.J. Lee Constr. Co., 1979 O.S.H. Dec. (CCH) p 23,330, at 28,227 (Rev. Comm'n 1979). This three-part test, each prong of which employers must satisfy, has been recognized and approved by several federal courts of appeals. See, e.g., Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1389 n. 13 (D.C.Cir.1985) (denying the availability of the affirmative defense of "greater hazard" because "[t]here [was] no indication in the record that Willson attempted to obtain a variance"); Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1116 (7th Cir.1982); General Electric Co. v. Secretary of Labor, 576 F.2d 558, 560-62 (3d Cir.1978).

It is beyond serious doubt that the Commission's order vacated the citation on the ground that abatement of the railing violation exposed Williams' employees to a "more serious ... hazard" than did the violation itself. This is the very essence of the "greater hazard" defense, ² and it can be sustained only if the requirements of that defense have been met. Williams' argument--indeed, Williams' only argument to join issue with the basis of the Secretary's appeal--is that "[t]he ALJ did not use the term 'greater hazard' and indeed he did not intend to." Br. for Appellee at 6. This much is evidently true. Yet clearly the ALJ's failure to label his analysis with its correct name--or, more properly, his apparent failure to realize that he was invoking the doctrine of "greater hazard"--cannot free him from the standards developed by the Commission for this line of reasoning. ³ Moreover, he cannot evade the constraints on his discretion by claiming that he was acting under his authority to grant "other appropriate relief." 29 U.S.C. Sec. 659(c). This radical approach would transform the law as we know it: all OSHRC doctrines and precedent would be held applicable to ALJ adjudicationsunless the ALJ decided that they were not "appropriate." Such an authority would run counter to the whole statutory scheme, which provides for relatively predictable adjudicatory outcomes that are governed by generally accepted and binding legal norms, rather than the unbridled discretion of a single magistrate. ⁴

Just as it is clear to us that the substance of the "greater hazard" defense was invoked by the Commission, so too it is clear that the requirements of the defense were not met. First, as a procedural matter, Williams never pleaded "greater hazard," and thus it was never properly brought into the case. "Greater hazard" is an affirmative defense, which, according to Commission regulations, "[t]he employer shall state in its answer in [a] separate numbered paragraph[ ]." 29 C.F.R. Sec. 2200.36(b)(1). Furthermore, our understanding of affirmative defenses, buttressed by years of experience under Rule 8(c) of the Federal Rules of Civil Procedure, ⁵ is that these defenses place the burden on the party raising them to affirmatively plead the claim in order to bring them into the action. See, e.g., Camalier &...