Fluor Constructors, Inc. v. Occupational Safety and Health Review Com'n

• Decision Date: 16 November 1988
• Docket Number: No. 87-4029,87-4029
• Parties: 13 O.S.H. Cas.(BNA) 1956, 1988 O.S.H.D. (CCH) P 28,350 FLUOR CONSTRUCTORS, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 936

861 F.2d 936

13 O.S.H. Cas.(BNA) 1956, 1988 O.S.H.D. (CCH)

P 28,350

FLUOR CONSTRUCTORS, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Secretary of Labor, Respondents.

No. 87-4029.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 6, 1988.

Decided Nov. 16, 1988.

Carl B. Carruth (argued) McNair Law Firm, P.A., Columbia, S.C., for petitioner.

Ray H. Darling, Jr., Executive Secretary, OSHRC, Daniel J. Mick, Office of the Solicitor, U.S. Dept. of Labor, Barbara Werthmann (argued), Washington, D.C., for respondents.

Before KENNEDY, KRUPANSKY and BOGGS, Circuit Judges.

KENNEDY, Circuit Judge.

Fluor Constructors, Inc. petitions for review of a final order of the Occupational Safety and Health Review Commission (the Commission) finding Fluor in violation of an Occupational Safety and Health Administration (OSHA) construction standard, 29 C.F.R. Sec. 1926.451(l)(4) (1987), for failure to require that an employee using a boatswain's chair scaffold be protected by a lifeline. In its petition Fluor argues that the Commission's interpretation of the standard is contrary to the express terms of the standard and constitutes a denial of Due Process because that interpretation gives insufficient notice of the types of conduct prohibited under the regulation. Fluor also disputes the standard's applicability to the facts of this case and the existence of substantial evidence to support the violation. We find that the Commission's interpretation is reasonable and does not violate Due Process. Furthermore, substantial evidence supports the Commission's version of the facts underlying the violation. Accordingly, we affirm the Commission's order in all respects.

Fluor was the prime contractor working on a steam plant project near Paducah, Kentucky. On September 2, 1986, Gary Roberts, an ironworker employed by Fluor on the Paducah site, fell to his death while working on the skeletal steel structure of a boiler building. Roberts' work involved the use of a boatswain's chair which the regulations define as "[a] seat supported by slings attached to a suspended rope, designed to accommodate one workman in a sitting position." 29 C.F.R. Sec. 1926.452(b)(2) (1987).

On the date of the accident Fluor had assigned Roberts and a co-worker, Joel Davis, the job of "changing out" bolts in a steel structure at a location approximately 59 feet above the concrete floor below. ¹ Roberts and Davis were to replace bolts located in reinforcing metal plates called "gussets" situated at the intersections of diagonal braces. These intersections and their gussets were located at intervals approximately ten feet above and below each horizontal beam on the structure. See Appendix A (taken from Brief for the Secretary at 6). Roberts performed the actual changing of the bolts while working from a boatswain's chair suspended from an overhead chain hoist. Davis assisted from the horizontal beam.

Roberts' method for protecting himself from the danger of falling involved use of at least one line six feet in length attached to a safety belt. ² According to Davis' testimony at a hearing conducted before an Administrative Law Judge (ALJ), Roberts reached the gussets by moving up or down the diagonal braces from a starting point on a horizontal beam. Although attached to a chain hoist by a boatswain's chair capable of pulling him directly to the gussets, Roberts chose to connect his six foot line to the diagonal brace and then climb/walk up or down the brace to reach the gusset pulling the line with him. This method allowed Roberts to keep his line Roberts' arrangement unfortunately did not provide continuous fall protection. Because the diagonal braces to which Roberts' six foot line was attached stopped at the level of each horizontal beam, Roberts was forced to disconnect this line from one diagonal brace, transfer it across the horizontal beam, and then reattach it to the next diagonal brace when he wished to move from one gusset to another. While standing or crouching on the horizontal beam during this transfer movement Roberts was without the protection of the six foot line and he would have to rely entirely upon his boatswain's chair's chain hoist for fall protection. Roberts' fall occurred when he was standing upon a horizontal beam after having disconnected both his six foot line and his boatswain's chair.

attached to the diagonal brace. It was only upon reaching the gusset, according to Davis, that Roberts was totally suspended from the boatswain's chair and chain hoist arrangement. After finishing the bolt replacement, Roberts returned to the horizontal beam the way he had come--moving along the diagonal brace and pulling his attaching line.

Following the accident OSHA conducted an accident investigation. As a result of the OSHA investigation, the Secretary of Labor (Secretary) cited Fluor for, inter alia, a serious violation of 29 C.F.R. Sec. 1926.451(l)(4) ³ (a regulation promulgated under the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. Sec. 651 et seq.) for allowing Roberts to work in a boatswain's chair without "a separate lifeline to which a safety belt and lanyard could be connected." ⁴

Fluor contested the Secretary's citation. Pursuant to 29 U.S.C. Sec. 659(c) a hearing was held before an ALJ of the Commission. The ALJ affirmed the violation. After the Commission failed to direct discretionary review, the ALJ's Decision and Order became the final order of the Commission. See 29 C.F.R. Sec. 2200.90(d) (1987). Fluor then petitioned under 29 U.S.C. Sec. 660(a) for review in this court.

We review orders of the Commission under 29 U.S.C. Sec. 660(a) and the Administrative Procedure Act (APA), 5 U.S.C. Sec. 706 (1982). See, e.g., Dunlop v. Rockwell Int'l, 540 F.2d 1283, 1287-88 (6th Cir.1976). Section 660(a) mandates that we affirm the Commission's findings of fact if they are "supported by substantial evidence on the record considered as a whole." 29 U.S.C. Sec. 660(a). The APA mandates that when reviewing a Commission decision we may reverse it only if we find it to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A). Two principles guide the court's inquiry into the rationality/reasonableness of the Commission's decision. An administrative agency's interpretation of its own regulations is entitled to substantial deference. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1332 (6th Cir.1978). An agency's interpretation of a regulation is valid, however, only if that interpretation complies with the actual language of the regulation. North Georgia Bldg. & Constr. Trades Council v. Goldschmidt, 621 F.2d 697, 710 (5th Cir.1980); Diamond Roofing Co. v. Occupational Safety & Health Review Comm'n, 528 F.2d 645, 649 (5th Cir.1976). An agency is bound by the regulations it promulgates and may not attempt to circumvent the amendment process through changes in interpretation unsupported by the language of the regulation. Cf. United States v. Nixon, 418 U.S. Fluor argues that the Commission's interpretation of the word "lifeline" in 29 C.F.R. Sec. 1926.451(l)(4) is contrary to the express terms of the regulations and thus is "not in accordance with law." Fluor maintains that under the definitions of "lanyard" and "lifeline" in the regulations, a rope satisfying the definition of a "lanyard" can also qualify as a lifeline within the meaning of section 1926.451(l)(4) when tied off to a structural member. ⁵ Notwithstanding the different performance standards for lanyards and lifelines, ⁶ Fluor maintains that a line can qualify both as a lanyard and a lifeline if it meets the specification providing the greatest degree of safety. Fluor agrees that a long vertically hung independent line to which a lanyard may be attached is one form of a lifeline. Nor does Fluor dispute that a short line attached to a safety belt is a lanyard. Fluor does assert that the Commission's interpretation of lifeline to exclude Roberts' line is not supported by the wording of the regulation because as defined in the regulation a "lanyard" may also be a "lifeline" when it is used as Roberts used it in this case.

683, 695-96, 94 S.Ct. 3090, 3101, 41 L.Ed.2d 1039 (1974) (regulation giving Special Prosecutor power to contest invocation of executive privilege binding until amended or revoked).

We hold that the Commission's interpretation of 29 C.F.R. Sec. 1926.451(l)(4) is reasonable and in accordance with law. The ALJ properly noted the explicit distinctions between "lifeline" and "lanyard" in the regulations. The two types of lines have different minimum dimensions and different definitions. Unrebutted testimony at the hearing demonstrated the clear distinction drawn in the construction industry between lanyards and lifelines. Industry-wide recognition of the complementary use of lifelines and lanyards is further demonstrated by Fluor's own practice of using lifeline and lanyard setups with boatswain's chair operations in other locations on the Paducah project.

Although a semantic argument can be made that a lanyard when used in a certain fashion could satisfy the lifeline definition, consideration of the regulations as a whole dictates that Roberts' system would violate the regulations. Section 1926.451(l)(4) clearly requires the use of a "lifeline." As previously mentioned, common usage in the industry differentiates between lifeline and lanyard regardless of the possibility under the regulations that a "lanyard" could satisfy the requirements for a "lifeline." Simply because a plausible argument can be made that under certain circumstances a "lanyard" may satisfy the requirements for a "lifeline" does not render the Commission's construction of the regulations unreasonable or arbitrary. The Commission's construction need not be the only reasonable one before we will...