L.R. Willson & Sons, Inc. v. Donovan
| Decision Date | 13 August 1982 |
| Docket Number | No. 81-1603,81-1603 |
| Citation | 222 U.S. App. D.C. 214,685 F.2d 664 |
| Parties | , 10 O.S.H. Cas.(BNA) 1881, 1982 O.S.H.D. (CCH) P 26,178 L. R. WILLSON & SONS, INC., Petitioner, v. Raymond L. DONOVAN, Secretary of Labor, United States Department of Labor, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Occupational Safety & Health Review Commission.
Gary Z. Nothstein, Baltimore, Md., with whom Jeffrey P. Ayres and Ezra D. Singer, Baltimore, Md., were on brief, for petitioner.
Andrea Casson, Atty., U. S. Dept. of Labor, Washington, D. C., of the bar of the Supreme Court of Florida, pro hac vice, by special leave of court, with whom Allen H. Feldman, Atty., U. S. Dept. of Labor, Washington, D. C., was on brief, for respondent.
John A. Bryson, Westminster, Md., and Shelley D. Hayes, Attys., U. S. Dept. of Labor, Washington, D. C., also entered appearances for respondent.
Before TAMM and WILKEY, Circuit Judges, and GERHARD A. GESELL, * United States District Judge for the District of Columbia.
Opinion for the court filed by Circuit Judge TAMM.
We are required in this case to plunge into the world of Occupational Safety and Health Administration (OSHA) safety standards for the construction industry in general and the structural steel erection industry in particular. The standards at issue set forth the protections employers are required to provide to minimize the hazard to employees of falling from the buildings upon which they work. The employer in this case, L. R. Willson & Sons, Inc. (Willson), was cited for two violations of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. §§ 651-78 (1976). With regard to the citation for a "willful" violation of the Act, we reverse; we find that one of the standards involved is ambiguous and that the record lacks substantial evidence to support the violation. The standard upon which the citation for a "serious" violation was premised, however, sets forth clearly the requirements imposed upon employers. As there is substantial evidence in the record to support a finding of violation, we affirm with respect to the second citation.
In 1970 Congress enacted the Occupational Safety and Health Act "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions ...." 29 U.S.C. § 651(b). As one means of achieving this goal, Congress authorized the Secretary of Labor (the Secretary) "to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce." Id. at § 651(b)(3). In addition, the Occupational Safety and Health Review Commission (the Commission) was created to carry out "adjudicatory functions under (the Act) ...." Id. The Act imposes an affirmative duty on each employer to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees ... (and to) comply with occupational safety and health standards promulgated under this chapter." Id. at § 654(a).
Following an "inspection or investigation," if the Secretary believes that the requirements of section 654, of any promulgated standard, or of any prescribed regulation have been violated, "(he) shall with reasonable promptness issue a citation to the employer." Id. at § 658(a). Under section 666 of the Act, civil and criminal penalties may be assessed for any such violation. The nature and severity of the penalty imposed will depend, as a general matter, upon whether the violation is willful, serious, or repeated. 1 A willful violation, committed after a first conviction, that results in the death of any employee draws the most severe penalty-"a fine of not more than $20,000 or ... imprisonment for not more than one year, or ... both." Id. at § 666(e).
Pursuant to his statutory authority, the Secretary has promulgated literally hundreds of regulations and standards to govern innumerable safety and health considerations. The present case concerns Part 1926, "Safety and Health Regulations for Construction," 29 C.F.R. §§ 1926.1-1926.1051 (1981). 2 With this remedial, regulatory, and enforcement scheme as a backdrop, we turn to the facts of the case at bar.
In mid-February 1980, two OSHA compliance officers paid a visit to the worksite of petitioner L. R. Willson & Sons, Inc., in Vienna, Virginia. At that time, Willson had erected to the fourth floor level the structural steel for a nine level office building, the ninth level being the roof. Willson was the only contractor engaged in steel erection at that site. The compliance officers spoke with James Willson, Vice President and Safety Director for the company, concerning the absence of safety nets at the site. Mr. Willson explained that his employees were protected from falls by wearing safety belts and lanyards, and by "tieing off" at all times and all places. 3
On March 24, 1980, one of the compliance officers returned to the Willson worksite to conduct a follow-up visit. The officer observed several Willson employees on the seventh, eighth, and ninth levels. None of these employees was using a safety belt, nor were perimeter safety nets in use. On the basis of these observations, the compliance officers concluded that at least one Willson employee, the one on the ninth level, was exposed to an exterior fall hazard of approximately 109 feet. In addition, the compliance officer observed that there was neither an interior safety net nor a temporary floor above the sixth floor level. The officer therefore concluded that Willson's employees were also exposed to an interior fall hazard of approximately thirty-three feet, from the ninth to the sixth floor level below.
These observations led to the issuance by the Secretary of two citations, one for failure to protect against the exterior fall hazard and the other for failure to provide interior fall protection. Willson timely contested the citations, and a hearing was held before an administrative law judge (ALJ), who affirmed the Secretary. L. R. Willson & Sons, Inc., OSHRC Docket No. 80-2760 (Mar. 17, 1981) (hereinafter ALJ Decision), Joint Appendix (J.A.) at 198-217. Following that decision, Willson petitioned the Commission for discretionary review. No Commissioner directed review, however, and the ALJ's decision became a final order of the Commission by operation of law. 29 U.S.C. § 661(i). Willson's petition for review of the Commission's final order is now before this court pursuant to 29 U.S.C. § 660(a).
Willson was cited for failure to protect adequately against an exterior fall hazard and was charged with a willful violation of OSHA standards 1926.28(a) and 1926.105(a). 4 The citation provided:
29 CFR 1926.28(a) and 1926.105(a): Employee(s) were not protected against falls of more than 25 feet by the use of safety nets, ladders, scaffolds, catch platforms, temporary floors, safety lines, safety belts, or other appropriate personal protective equipment:
(a) Ninth level, south side of building, approximately 109 feet above the ground-employees were checking connections and re-tightening bolts by hand, on 3/24/80.
Citation and Notification of Penalty, J. A. at 1.
Willson challenges the validity of this citation on three major grounds. Initially, Willson claims that the cited standards are not applicable to the steel erection industry. This argument is premised on two distinct claims: first, that Subpart R of Part 1926 of the Secretary's regulations provides the exclusive source of safety standards applicable to the steel erection industry, and, second, that if the general safety standards contained in Subparts C and E normally apply to the steel erection industry, they do not apply under the circumstances of this case because they are preempted by a specific steel erection standard. Assuming the cited standards are applicable to steel erectors, Willson contends that the safety belt violation under section 1926.28(a) is not supported by substantial evidence. In addition, petitioner claims that section 1926.105(a) is vague and does not provide employers with adequate notice that safety nets are required. We address each of these contentions in turn. 5
Willson's first line of attack on the citation for a "willful" violation consists of the assertion that a steel erection firm is required to comply only with the standards governing steel erection set forth in Subpart R of Part 1926 and not with the health and safety standards that apply generally to the construction industry, including Subparts C and E, which contain the standards under which Willson was cited. This argument is supported, Willson argues, by Commission precedent, by court decisions, and by the Secretary's regulation that governs the applicability of all standards, 29 C.F.R. § 1910.5(c). 6 We disagree.
A specific standard preempts a general one only if "a condition, practice, means, method, operation, or process" is already dealt with by a specific standard. 29 C.F.R. § 1910.5(c)(1). The words of the regulation evince no intent that the general standards be preempted for an entire industry simply because some specific standards for that industry have been promulgated. In fact, the regulations provide expressly to the contrary. Id. at § 1910.5(c) (2). We think it clear from the plain language employed in section 1910.5(c) that the general 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 protecting against the particular hazard in question.
The Commission decisions and the court cases upon which petitioner relies are inapposite. 7...
To continue reading
Request your trial
-
Donovan v. A.A. Beiro Const. Co., Inc., s. 83-2008
...The question is whether that point was reached in this case. This court faced a similar question in L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 674-76 (D.C.1982). The question in L.R. Willson was at what point the use of safety belts became "impractical" within the meaning of 29 C.F......
-
Ensign-Bickford Co. v. Occupational Safety and Health Review Com'n
...indifference to, the Act's requirements." Cedar Constr. v. OSHRC, 587 F.2d 1303, 1305 (D.C.Cir.1978); see L.R. Willson & Sons v. Donovan, 685 F.2d 664, 667 n. 1 (D.C.Cir.1982); Universal Auto Radiator Mfg. v. Marshall, 631 F.2d 20, 23 (3d Cir.1980); Georgia Electric v. Marshall, 595 F.2d 30......
-
Donovan v. Adams Steel Erection, Inc., AFL-CIO
...for an entire industry simply because some specific standards for that industry have been promulgated." L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 669 (D.C.Cir.1982); see also 29 C.F.R. Sec. 1910.5(c)(2). At stake here is a citation issued under a general construction industry safe......
-
Kaspar Wire Works v. Secretary of Labor
..."the Commission is not bound by the representations or interpretations of OSHA Compliance Officers." L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 676 (D.C. Cir. 1982). Further, two other OSHA inspectors testified that based on the 1990 inspection, Kaspar Wire had clearly and intentio......