Frank Lill & Son, Inc. v. Secretary of Labor

• Decision Date: 06 April 2004
• Docket Number: No. 03-1096.,03-1096.
• Parties: FRANK LILL & SON, INC., Petitioner, v. SECRETARY OF LABOR, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

362 F.3d 840

FRANK LILL & SON, INC., Petitioner, v. SECRETARY OF LABOR, Respondent.

No. 03-1096.

United States Court of Appeals, District of Columbia Circuit.

Argued January 20, 2004.

Decided April 6, 2004.

On Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Paul M. Sansoucy argued the cause for the petitioner.

Michael P. Doyle, Attorney, United States Department of Labor, argued the cause for the respondent. Allen H. Feldman, Associate Solicitor, and Nathaniel I. Spiller, Deputy Associate Solicitor, United States Department of Labor, were on brief. Joseph M. Woodward, Attorney, United States Department of Labor, entered an appearance.

Before: HENDERSON, RANDOLPH and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The Secretary of Labor (Labor), through the Occupational Safety and Health Administration (OSHA), cited Frank Lill & Son, Inc. (Lill) for willful violation of 29 C.F.R. § 1926.501(b)(1) which requires an employer to provide fall protection where employees work on a surface with an unprotected edge more than 6 feet above the level below. The Administrative Law Judge (ALJ) affirmed the citation as serious (rather than willful) and his decision became the final order of the Occupational Safety and Health Review Commission (OSHRC, Commission). Lill petitioned for review of the final order. For the reasons set forth below, we deny the petition for review.

I.

Lill is in the business of constructing power plants and process piping installations. In April 2001 Lill began construction of two eighty-foot heat recovery steam generators (HRSGs) in Newington, New Hampshire under a subcontract with general contractor Fluor Constructors (Fluor). On January 24, 2002 at about 9:30 a.m. OSHA Compliance Officer Stephen Rook visited the construction site to conduct a safety inspection. When he arrived, Rook went to Fluor's job trailer and spoke with Fluor safety director Jim Reese, who accompanied Rook on an inspection of the site.

During his inspection, Rook observed two Lill employees at HRSG No. 2 "working at a platform approximately 100 feet up in the air without fall protection." Tr. 16. He walked to HRSG No. 2 and began to climb its stairway toward the workers. While ascending, he encountered Lill site foreman Bob Brown. According to Rook, he informed Brown he was "on site for a complaint" and had "observed employees working without fall protection." Tr. 18. Rook then continued up the stairs and saw two employees, Real Savoy and Kevin Gross, "working at the edge of the platform without fall protection." Tr. 19. He photographed Savoy. Savoy's only visible protection consisted of a horizontal wire rope, about 18 inches high, at the edge of the platform and "a ratline or horizontal lifeline" above his shoulder. Tr. 23. Rook spoke with Savoy and Gross who informed him that working without fall protection "was a pattern throughout the worksite or throughout the HRSGs on days prior, that employees weren't always tied off" and that "there isn't a convenient place to tie off." Tr. 25. They also told Rook that members of Lill management "had been working in the area when employees weren't tied off." Id.

A short time later, Rook met with Lill foreman Ron Tanguay, explained who he was and why he was at the site and stated he had seen employees working without fall protection. When asked, Tanguay confirmed that working without fall protection was "a recurring pattern," Tr. 29, and told him of an incident 7-10 days earlier when Lill employee Rick Chamberlain "had slipped and fallen while walking along the platform on the HRSG," Tr. 30. After this conversation, Rook began to climb down the stairs to interview Chamberlain. While descending the stairs, Rook observed and photographed another Lill employee, Steve Drew, working without fall protection about 75 feet above the ground. Rook proceeded down the stairs and located Chamberlain. When asked about his fall, Chamberlain explained he had fallen toward the edge of the platform from about eight feet in and had landed about three feet from the edge. He also told Rook he had not been tied off. After this conversation, Rook inspected HRSG No. 1 and, although the workers there were tied off, Lill foreman Dwight Grant informed him "it was a frequent occurrence for employees not to be tied off while working on the HRSG." Tr. 40.

The following day Rook returned to the Newington site and spoke with three members of Lill management-site manager Bill Cole, site foreman Brown and site safety representative Neil Briscoe-and told them of his "findings the day earlier, inadequate fall protection which had occurred on the HRSGs." Tr. 45. He then accompanied them to the top of HRSG No. 1 and "explained to them they had three options that they use according to the minimum OSHA standards, a fall protection system, a safety net system or a guardrail system." Tr. 46. Rook visited the site a third time on January 28, 2002 and spoke with Briscoe and Cole. Finally, on February 22, 2002 Rook met with management from all of the site contractors, including Lill, and discussed his inspection and the deficiencies he had observed.

On March 8, 2002 OSHA issued a citation to Lill for willful violation of 29 C.F.R. § 1926.501(b)(1), which provides: "Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems." Specifically, the citation alleged that Lill employees "were not adequately protected from falls of approximately 85 feet while working on HRSG #2." JA 327. OSHA proposed a penalty of $49,500. Lill contested the citation and on April 14, 2002 the Secretary issued a complaint alleging that Lill had violated section 1926.501(b)(1) as described in the citation. Following an evidentiary hearing, the ALJ issued a decision, docketed January 9, 2003, which affirmed OSHA's citation but amended it from "willful" to "serious" and imposed a $5,000 fine.

Lill filed a petition for discretionary review by the Commission. When no Commissioner directed review within 30 days of the ALJ's decision, that decision became the Commission's final order on February 10, 2003. See Notice of Final Order, OSHRC Docket No. 02-0564 (dated Feb. 11, 2003) (citing 29 C.F.R. §§ 2200.90(d), 661(j)).

Lill filed a timely petition for review on April 3, 2003.

II.

Lill first challenges the substance of the ALJ's violation finding and then raises three additional legal arguments. We address Lill's contentions in order.

A. The Finding of Violation

First, Lill challenges the ALJ's finding of a violation on four grounds: (1) it is contrary to the evidence because the wire rope stretched along the platform perimeter qualifies as a "guardrail system" within the meaning of section 1926.501(b)(1); (2) the interpretation of the statutory term "guardrail system" adopted by the Secretary is unreasonable; (3) the ALJ erred in finding that anyone other than Gross and Savoy was exposed to fall hazard and (4) the ALJ erred in finding Lill had constructive and actual notice of the violative conditions.

We conclude that the last three challenges have not been preserved for review because they were not raised in the petition for discretionary review (PDR) before the Commission. The Occupational Safety and Health Act expressly states: "No objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." 29 U.S.C. § 660(a). Because of this statutory prohibition, "[i]n cases where the Commission declines to review the ALJ decision, we and our sister circuits have uniformly held that courts of appeals lack jurisdiction over objections not raised in the PDR." A.J. McNulty & Co., Inc. v. Sec'y of Labor, 283 F.3d 328, 332 (D.C.Cir. 2002) (citing Durez Div. of Occidental Chem. Corp. v. OSHA, 906 F.2d 1, 5 (D.C.Cir.1990); P. Gioioso & Sons v. OSHRC, 115 F.3d 100, 107 (1st Cir.1997)). In its PDR Lill raised the following objection to the finding of violation:

The Judge's finding that the Secretary had met her burden of proof with respect to a violation of the fall protection standard was contrary to the evidence and Commission precedent. Contrary to the Judge's finding, there is no proof that an unprotected edge existed, in that the total perimeter of the HRSG was guarded by 5/8" wire rope.

JA 426. This language put the Commission on notice of only the first of Lill's challenges here-that the wire rope constitutes a "guardrail system" in compliance with the OSHA standard. The PDR makes no reference to the other three objections Lill now asserts. Because the Commission had no opportunity to consider these objections, we are without jurisdiction to do so. Cf. Durez, 906 F.2d at 5 (where PDR simply stated "the Standard exceed[s] the statutory authority granted," with no discussion, citation to authority or basis for challenge, "petitioner's abbreviated mention of its challenge to the validity of the Standard is `wholly inadequate to satisfy the requirement of § 660(a) that an objection be "urged before the Commission"'") (quoting Power Plant Div., Brown & Root, Inc. v. OSHRC, 659 F.2d 1291, 1293 (5th Cir.1981) (quoting 29 U.S.C. § 660(a))); see also P. Gioioso, 115 F.3d at 107 ("[A]n aggrieved party desiring to preserve an issue for judicial review must raise it before the ALJ, articulate it clearly in its PDR, and offer a modicum of developed argumentation in support of it.") (citing Durez, 906 F.2d at 5). We now address the one challenge properly before the court.

Lill contends the ALJ ignored the presence of the perimeter wire rope which, Lill insists, qualifies as a...