Donovan v. Williams Enterprises, Inc.
| Decision Date | 18 September 1984 |
| Docket Number | Nos. 83-1687,83-1690,s. 83-1687 |
| Parties | , 11 O.S.H. Cas.(BNA) 2241, 1984-1985 O.S.H.D. ( 27,057 Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. WILLIAMS ENTERPRISES, INC., Respondent. WILLIAMS ENTERPRISES, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of an Order of the Occupational Safety and Health Review Commission.
Arthur J. Amchan, Atty., Dept. of Labor, Washington, D.C., with whom Dennis K. Kade and Judith N. Macaluso, Attys., Dept. of Labor, Washington, D.C., were on the brief, for petitioner in No. 83-1687 and cross-respondent in No. 83-1690. Shelley D. Hayes, Atty., Dept. of Labor, Washington, D.C., also entered an appearance for petitioner in No. 83-1687.
James Brent Clarke, Jr., Washington, D.C., for respondent in No. 83-1687 and cross-petitioner in No. 83-1690.
Before EDWARDS, BORK and SCALIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge BORK.
Williams Enterprises, Inc. was one of several contractors involved in construction of the Hart Senate Office Building in Washington, D.C. After a series of on-site inspections, an OSHA compliance officer cited Williams for failing to comply with several of the construction industry safety regulations in 29 C.F.R. Part 1926 (1983). Both citations were vacated by an administrative law judge following an evidentiary hearing. On review, the Occupational Safety and Health Review Commission affirmed the dismissal of one citation but reinstated the second. These cross-appeals followed. In No. 83-1687, the Secretary of Labor seeks to reverse that portion of the Commission's order vacating the citation issued to Williams for violating 29 C.F.R. Sec. 1926.500(d)(1) (1983) ("citation one"). In No. 83-1690, Williams seeks to reverse the Commission's affirmance of the citation issued for violating 29 C.F.R. Secs. 1926.750(b)(2)(i) and 1926.105(a) (1983) ("citation two"). Jurisdiction and venue in this court are proper under 29 U.S.C. Sec. 660(a), (b) (1982).
The standards regulating safety in the construction industry are found in 29 C.F.R. Part 1926 (1983). Subpart R of those regulations specifically pertains to the structural steel erection industry. 29 C.F.R. Secs. 1926.750 through 1926.752 (1983). Subpart R is not, however, the exclusive source of safety regulation for businesses like Williams which are engaged in steel erection. The general construction standards "apply to all hazards native to the steel erection industry unless a specific standard in Subpart R sets forth a different mandatory or preferred method for protection against the particular hazard in question." L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 669 (D.C.Cir.1982).
Williams' primary responsibility on the project was to install corrugated sheets of metal decking on the steel frame of the building. The decking material was lifted by crane and stacked across steel I-beams in the structure's skeletal frame. Williams' employees would then move the material by hand to those areas on a floor where building plans called for it. When moving sheets of the decking, employees were required to traverse beams that were four to twelve inches in width. Before the individual sheets were welded to the frame of the building, the decking was spread loosely to form a temporary floor. This floor was used as a work surface and offered protection to employees working on higher levels. Ultimately, the decking was used as a form to pour the permanent concrete floor.
Williams' contract required it first to install decking on the third floor, and then on each odd-numbered floor up to the ninth level. Williams' employees thus began "decking" 47 feet above the ground. Because the architectural design called for numerous atria and open courtyards, some extending through several levels of the structure, decking did not cover the entire surface area of each floor. Consequently, Williams' employees were required to move decking material across open areas on several occasions. To do this, individual pieces of decking were used to construct makeshift bridges 1 spanning the openings.
As a result of the inspections conducted during October of 1978 and continuing through January of 1979, Williams was cited for violating both general safety and Subpart R standards. On November 1, 1978, an OSHA compliance officer observed four Williams employees moving sheets of metal decking across a "bridge" on the fourth floor of the building. The bridge--made by interlocking three or four individual sheets of decking material--extended 30-40 feet across an atrium and exposed the employees to a fall of 58 feet. The compliance officer cited Williams for a serious violation of 29 C.F.R. Sec. 1926.500(d)(1) (1983) (the "platform" regulation). 2 That regulation requires "every open-sided floor or platform 6 feet or more above adjacent floor or ground level [to] be guarded by a standard railing, or the equivalent ... on all open sides, except where there is an entrance to a ramp, stairway, or fixed ladder." 3 The Secretary later amended citation one to charge a willful and/or repeated violation of that regulation. 4
The second citation alleged four separate and willful violations of the Subpart R standard set out in 29 C.F.R. Sec. 1926.750(b)(2)(i) and the general standard in 29 C.F.R. Sec. 1926.105(a) (1983). Section 1926.750(b)(2)(i) requires the maintenance of a "tightly planked and substantial floor ... two stories or 30 feet" (whichever is less) below the area where skeletal steel erection is being performed. Section 1926.105(a) requires the use of safety nets "when workplaces are more than 25 feet above the ground ... [and] where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical." Citation two specifically charged Williams with violating each of the cited standards in connection with the company's failure to protect employees from (1) an interior fall hazard of 47 feet while installing decking on the third floor of the building on October 5, 1978; (2) an interior fall hazard of the same type on October 6, 1978; (3) an interior and exterior fall hazard of 58 feet while walking a beam on the fourth floor building perimeter on January 11, 1979; and (4) an interior fall hazard of 40 feet while installing decking on the elevator machine room roof on October 5, 1978. Appendix ("App.") at 12-13.
After an evidentiary hearing, an Administrative Law Judge dismissed both citations. App. at 110-33. In the ALJ's view, Subpart R "preempted" any application to this case of the general industry regulations in 29 C.F.R. Part 1926. App. at 127-28, 130. He thus vacated citation one which alleged a violation of the "platform" rule in section 1926.500(d)(1), as well as those portions of citation two charging violations of Section 1926.105(a). App. at 128, 130. 5 The ALJ then dismissed the Subpart R violations in citation two. According to the judge, the numerous atria incorporated into the building's structure prevented and excused Williams from compliance with section 1926.750(b)(2)(i) which would otherwise have required the maintenance of a floor beneath the areas where employees worked. App. at 129.
On review before the Occupational Safety and Health Review Commission, the ALJ was reversed to the extent that he ruled Subpart R the exclusive source of safety regulation for skeletal steel erection. App. at 161-64. Nonetheless, the Commission vacated citation one because, in its view, the bridge used by Williams to move sheets of decking through the atrium on November 1, 1978 did not constitute a "platform" within the meaning of the cited standard. Id. at 165. The Commission stated:
To regard each of such surfaces as platforms that require guarding would mean that, as the work progresses, each piece of decking on which employees stood to place the next piece of decking would have to be guarded. Such a requirement would not only be infeasible, but would also unnecessarily expose employees to fall hazards for the time involved in erecting guardrails. Thus, the use by employees of interlocked temporary decking sections as working surfaces from which to install or transport other sections of decking does not convert those working surfaces into platforms within the meaning of section 1926.500(d)(1).
App. at 166. 6
The Commission reversed the ALJ on the merits of citation two and reinstated, for the most part, each charge in the citation. App. at 166-73. With respect to the alleged violations of section 1926.750(b)(2)(i), the Commission rejected as inconsistent with the testimony presented the ALJ's finding that building design prevented and excused compliance. App. at 166-67. Williams' argument that it need not comply with fall protection standards because the endangered employees' work was undertaken to provide fall protection for those working above them was also rejected. All employees must be protected, the Commission stated, "even while they are in the process of installing safety protection." Id. at 166.
The Commission did vacate alleged violations of section 1926.105(a), but only to the extent that those allegations sought to sanction Williams for the company's failure to protect employees from interior fall hazards on various occasions. According to the Commission, the interior fall protection in section 1926.105(a) was duplicative of the interior protection offered by section 1926.750(b)(2)(i) under which violations had been found to exist. App. at 168. Williams had, however, violated section 1926.105(a) by failing to protect an employee from an exterior fall hazard; that portion of the citation was affirmed and reinstated. App. at 170-71. 7
Finally, the Commission held that the violations set out in citation two were properly...
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