L.R. Willson and Sons, Inc. v. Occupational Safety and Health Review Com'n
| Decision Date | 18 January 1983 |
| Docket Number | 81-2385,Nos. 81-2101,s. 81-2101 |
| Citation | 698 F.2d 507,225 U.S.App.D.C. 341 |
| Parties | , 11 O.S.H. Cas.(BNA) 1097, 1983 O.S.H.D. (CCH) P 26,395 L.R. WILLSON AND SONS, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Raymond J. Donovan, Secretary of Labor, United States Department of Labor, Respondents. Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. L.R. WILLSON AND SONS, INC., and Occupational Safety and Health Review Commission, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition 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 Allen H. Feldman, Atty., Dept. of Labor, Washington, D.C., was on the brief for Donovan, Secretary of Labor, et al., respondents in 81-2101 and cross-petitioner in 81-2385. Edward G. Hoban and Dennis K. Kade, Attys., Dept. of Labor, Washington, D.C., also entered appearances for Donovan, Secretary of Labor, et al.
Gary Z. Nothstein, Baltimore, Md., with whom Ronald W. Taylor, Baltimore, Md., was on the brief, for L.R. Willson and Sons, Inc., petitioner in 81-2101 and respondent in 81-2385.
Before MacKINNON, GINSBURG and BORK, Circuit Judges.
Opinion for the Court filed by Circuit Judge MacKINNON.
These are cross appeals from a final order of the Occupational Safety and Health Review Commission ("OSHRC" or the "Commission") affirming an Administrative Law Judge decision to affirm one of two Occupational Safety and Health Act ("OSHA" or the "Act") 1 citations issued against the structural steel erection company of L.R. Willson and Sons, Inc. ("Willson"). For the following reasons, we reverse the Commission decision regarding each of the citations in question.
Willson is a structural steel erection company based in Annapolis, Maryland. In March, 1980, Willson was engaged in building a gymnasium-racquetball court at 8260 Greensboro Drive in McLean, Virginia. (JA 64, 85, 101). On March 26, the worksite was inspected by OSHA Compliance Officer Lillie M. Browne. At the time of the inspection, Willson was working only on the completion of the roof of the single story north racquetball court, performing the steel assemblage of joists 2 and frames 3 for the support of roof top units/air-handlers, welding roof joists, and fastening and bolting steel members. (JA 29-30, 102-04, 106). The structural steel framework of the building contained vertical columns placed one on top of another and bolted together. Horizontal beams and cross braces completed the framework. (JA 71, 104-05). The framework also contained interior columns, braces, and bar joists. (JA 102, 104, 107).
Upon inspection, Browne observed two employees sitting on the joists of the building's uncompleted roof performing various welding tasks approximately 24 feet above the ground. Neither workman was wearing a safety belt of any kind. (JA 29-31, 35, 124). Browne also observed an employee descending a 24 foot high ladder which was perpendicular to the floor. This ladder, which was the normal means of employee access to the roof, was not equipped with a cage or well nor with side or grab rails extending above the roof. (JA 38-47).
Based on this inspection, Browne issued citations for two "serious" 4 violations of the Occupational Safety and Health Act. With respect to the "welding workmen," Browne charged Willson with violating 29 C.F.R. 1926.28(a) (1981), 5 the general regulation which provides:
The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.
As for the ladder without cage or grab rails, Browne cited Willson for violating 29 C.F.R. 1926.450(a)(5) (1981), 6 which provides:
Fixed ladders shall be in accordance with the provisions of the American National Standards Institute ["Institute"], A 14.3-1956, Safety Code for Fixed Ladders.
Section 6.1.2 of the Institute Code provides:
Cages or wells ... shall be provided on ladders of more than 20 feet to a maximum unbroken length of 30 feet.
Section 6.3 of the Institute Code provides:
The side rails of through or side-step ladder extensions shall extend 3 1/2 feet above parapets and landings.
Willson contested these citations before an Administrative Law Judge, who, after an evidentiary hearing, affirmed the citation issued for violation of 29 C.F.R. 1926.28(a) (1981) and vacated the citation for violation of 29 C.F.R. 1926.450(a)(5) (1981). Both Willson and the Secretary of Labor petitioned OSHRC for review of the respective adverse portions of the Administrative Law Judge's report. However, no member of the Commission directed that the report be reviewed by the Commission and on August 26, 1981, the order by virtue of such inaction became a final order of the Commission pursuant to section 12(j) of OSHA, 29 U.S.C. Sec. 661(i) (Supp. IV 1980). 7
On October 12, 1981, Willson filed a petition for review of the OSHRC final order with this Court, which was assigned Docket No. 81-2101. On October 22, 1981, the Secretary filed a petition for review of the OSHRC final order with the United States Court of Appeals for the Fourth Circuit. Pursuant to 28 U.S.C. Sec. 2112(a) (1976), 8 that proceeding was transferred to this Court on December 29, 1981, and was assigned Docket No. 81-2385. The two cases were thereafter consolidated.
Willson challenges the section 1926.28(a) citation by arguing that section 1926.28(a), a "general construction industry regulation," is preempted by 29 C.F.R. 1926.750(b) (1981), a "specific" regulation imposing safety provisions on the structural steel erection industry. Accordingly, Willson asserts that section 1926.28(a) may not be used as the basis for a citation issued to Willson. Alternatively, Willson argues that the Commission erred in affirming the section 1926.28(a) citation because the Secretary did not demonstrate that a reasonably prudent employer familiar with the structural steel erection industry would have required its workers to use safety belts at the gymnasium-racquetball court construction site. 9 Although we conclude that the specific safety regulation, section 1926.750(b), does not preempt application of the general safety regulation, section 1926.28(a), to the structural steel erection industry under the circumstances presented by this case, we hold that the Commission's finding of a violation of section 1926.28(a) is not supported by substantial evidence in the record.
This Court recently considered Willson's preemption argument in a case involving two other OSHA citations issued to Willson. In L.R. Willson & Sons v. Donovan, 685 F.2d 664 (D.C.Cir.1982), we rejected Willson's claim that the mere presence of a specific safety regulation for an industry rendered inapplicable a general safety regulation that would, but for the specific regulation, apply to the industry under the circumstances. "A general standard is not preempted unless a specific standard sets forth the measures that an employer must take to protect employees from a particular hazard." Id. at 670. 10 Thus, we must determine whether section 1926.750(b) sets forth, to the exclusion of the measures required under section 1926.28(a), all the measures that Willson was required to implement to protect its workers from the hazard of falling 24 feet from the steel beams on which they were working to the concrete floor below. We hold that it does not.
Section 1926.750(b) 11 provides that temporary floors must be provided within two stories or 30 feet, whichever is less, whenever steel erection work is being done. 12 If a building or structure is not adaptable to a temporary floor, then a scaffold must be provided. Should neither a floor nor scaffolding be practicable, a safety net must be provided whenever the potential fall distance exceeds two stories or 25 feet. We read section 1926.750(b) as establishing the measures required of employers engaged in the erection of structural steel to reduce the exposure of workers to falls of more than 30 feet. However, in our view section 1926.750(b) was not intended to relieve such employers of their general obligation, expressed in section 1926.28(a), to take appropriate measures to protect workers from hazardous falls of less than 30 feet. 13
The Fourth Circuit reached the same conclusion in an opinion by Judge Field, Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir.1979). Bristol was assembling a scaffolding preparatory to the erection of structural steel. Two employees were observed by an OSHA inspector on a wall, approximately 16 feet above some concrete stairs, without any fall protection. Accordingly, Bristol was cited for a violation of section 1926.28(a). Id. at 719. Bristol contested the citation, arguing that the specific structural steel safety regulation, section 1926.750(b), preempted application of section 1926.28(a) to its activities. Id. at 720-21.
The Fourth Circuit rejected Bristol's argument. Id. at 722. Recognizing that OSHA should be liberally construed to provide protection to workers, the court concluded that the general safety regulation was "designed to fill those interstices necessarily remaining after the promulgation of specific safety standards." Id. at 721 (footnote omitted).
The specific standards relied upon by Bristol, while providing safety protection to employees engaged in steel erection, cannot achieve the goal of adequately protecting those employees in every conceivable situation. Infinite hypotheticals can be envisioned in which employees engaged in steel erection would be exposed to an unnecessary hazard not covered by a ... specific safety standard. The general safety standard dealing...
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