Marshall v. Southwestern Indus. Contractors & Riggers, Inc., 77-2471
| Citation | 576 F.2d 42 |
| Decision Date | 05 July 1978 |
| Docket Number | No. 77-2471,77-2471 |
| Parties | 6 O.S.H. Cas.(BNA) 1751, 1978 O.S.H.D. (CCH) P 22,840 Ray MARSHALL, Secretary of Labor, Petitioner, v. SOUTHWESTERN INDUSTRIAL CONTRACTORS AND RIGGERS, INC. and Occupational Safety and Health Review Commission, Respondents. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Carin A. Clauss, Sol. of Labor, Allen H. Feldman, Asst. Counsel for App. Lig., John A. Bryson, John A. Amodeo, Attys., U. S. Dept. of Labor, Washington, D. C., for petitioner.
Ray H. Darling, Jr., Executive Sec., Benjamin W. Mintz, Associate Sol. of OSHRC, Allen H. Sachsel, App. Section, Civ. Div., U. S. Dept. of Justice, Washington, D. C., Stephen B. Tatem, Jr., Scott, Hulse, Marshall & Feuille, El Paso, Tex., for S. W. Ind. Contractors & Riggers.
Petition for Review of an Order of the Occupational Safety and Health Review Commission.
Before GOLDBERG, AINSWORTH and HILL, Circuit Judges.
This case marks the fourth appearance before this court of an Occupational Safety & Health Act safety regulation relating to the use of safety nets to protect workers from falls. The regulation reads, in pertinent part,
Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.
The instant case arises from construction activity by respondent, Southwestern Industrial Contractors and Riggers, Inc. ("Southwestern" or "the company") at the Sheridan overpass on Interstate Highway 10 in El Paso, Texas. On July 22, 1975, at the time of the OSHA inspection, Southwestern was engaged in "hanging the beams," that is, lifting into place and securing 80 foot long pre-cast concrete beams upon which the actual road surface was to be laid. Two ironworkers employed by Southwestern had the specific task of securing the beams. To perform this function, the employees worked from adjacent beams, 25-30 feet from the ground, bolting angle irons and placing jacks between the beams at approximately ten foot intervals along the 80 foot length of the beams. While the actual bolting was done from a stooped or sitting position, the employees were required to walk along the beams both to move from one bracing location to the next and to receive equipment from the ground and transport it along the beams.
The two employees were supplied with safety belts and six foot lanyards, or safety lines. When working in stationary positions, the employees attached the lanyards to their safety belts, passed them through steel rebars embedded in the concrete beams, and doubled them back to reconnect to the safety belts. Thus, when in use, the lanyards moored the employees within three feet of the beams. The employees had to unhook the lanyards whenever the job required them to stand or walk along the beams. No safety net or other protective device was employed; thus, when the lanyards were unhooked, 1 the workers were totally unprotected from falls of 25-30 feet.
Following the OSHA inspection, the Secretary of Labor issued Southwestern a citation alleging a serious violation of § 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), for failure to comply with the safety standard, 29 C.F.R. 1926.105(a), in that "safety nets were not provided or installed where other protection was not practical at the Sheridan overpass where two employees were exposed to the hazard of falling . . . more than 25 feet . . .. " The Secretary also ordered immediate abatement of the condition and issued a Notification of Proposed Penalty in the amount of $500. Southwestern timely contested the citation and proposed penalty and a hearing was held before an administrative law judge ("ALJ") on December 2, 1975.
The ALJ, relying heavily on a decision of the Eighth Circuit, Brennan v. OSHRC, and Ron M. Fiegen, Inc., 513 F.2d 713 (8th Cir. 1975), held that the Secretary had not established that Southwestern had failed to comply with the cited standard and accordingly vacated the citation and proposed penalty. Following issuance of this order, Commissioner Moran of the Occupational Safety and Health Review Commission ("OSHRC" or "the Commission") directed sua sponte that the ALJ's decision "be reviewed for error" by the full Commission. The Secretary later petitioned for review of specific errors in the ALJ's decision. The Commission declined "to pass upon, modify or change the Judge's decision" and accorded the ALJ's order "the significance of an unreviewed Judge's decision." The Secretary now petitions for review under 29 U.S.C. § 660(b). We reverse.
The first case in this circuit to consider safety rule 1926.105(a) was Brennan v. OSHRC and Bounds, 488 F.2d 337 (5th Cir. 1973). In that case the court affirmed a decision of the Commission holding that the employer's failure to utilize a safety net was not in violation of the safety rule where both affected employees were working on surfaces construed by the Commission as "permanent flooring." The court, in approving the Commission's determination that "the cited standard is inappropriate to the factual situation," focused its analysis on the regulation's use of the "imprecise term 'impractical' ":
We read the Commission's interpretation of the regulation as equivalent to finding that if the ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are used, then a safety net is not required by 1926.105. The term "impractical" is simply not precise enough to be synonymous either with absence of use of the other devices or with ineffective use of them.
Id. at 338. The court declined in that case to delineate the respective rights, powers, duties, and responsibilities of the Secretary of Labor and the OSHRC, finding such a determination unnecessary to its decision insofar as "(t)he fault lies in the wording of the regulation."
The safety regulation next appeared in Brennan v. Southern Contractors Service and OSHRC, 492 F.2d 498 (5th Cir. 1974). In that case, the employer argued, and the Commission held, "that where the use of one of the safety devices listed in this regulation is practical, then resort to safety nets is not required even though the practical device is not in fact utilized by the employer." Id. at 499 (note omitted). The Secretary then petitioned for review.
The Southern Contractors court reached an issue reserved in Bounds, holding that since the Secretary of Labor is authorized to promulgate regulations, "his interpretation is entitled to great weight," id. at 501, and "is controlling as long as it is one of several reasonable interpretations, although it may not appear as reasonable as some other." Id. (citations omitted). While acknowledging the ambiguity inherent in the term "impractical," the court held that "(i)n view of the salutary purpose of the . . . Act, we cannot conclude that the ambiguity . . . is so fatal as to warrant condemnation of the Secretary's interpretation of the regulation as unreasonable." Id. The court distinguished Bounds, finding significance in the Commission's interpretation of the regulation in that case
as equivalent to finding that if ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are used, then a safety net is not required by 1926.105.
Id. at 501 ().
Southern Contractors was held to be controlling in a subsequent Fifth Circuit case, ...
To continue reading
Request your trial
-
Donovan v. Anheuser-Busch, Inc.
...interpretation of the Secretary, conflicting with that of the Commission, is controlling; and Marshall v. Southwestern Industrial Contractors and Riggers, Inc., 576 F.2d 42, at 44-45 (C.A. 5 1978), holding that deference be given to the conflicting interpretation of the Secretary, if reason......
-
S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Com'n
...device when it is both worn and attached by a lanyard or lifeline to a stationary object.' " Marshall v. Southwestern Industrial Contractors & Riggers, Inc., 576 F.2d 42, 44 (5th Cir. 1978). Accordingly, in this opinion unless the context otherwise requires, references to the "wearing" of s......
-
United Steelworkers of America, AFL-CIO-CLC v. Schuylkill Metals Corp.
...Brock v. Schwarz-Jordan, Inc., 777 F.2d 195, 196-97 (5th Cir.1985) (per curiam); Marshall v. Southwestern Industrial Contractors & Riggers, Inc., 576 F.2d 42, 44-45 (5th Cir.1978); Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir.1974); see RSR Corp. v. Brock, 764 F.2d 35......
-
Cleveland Consol., Inc. v. Occupational Safety and Health Review Com'n
...(1970); Kelly Constr. Serv. 1976-77 OSHD P 20,925 at p. 25,131 (1976); See also 29 U.S.C. § 651; Marshall v. Southwestern Ind. Contractors & Riggers, Inc., 576 F.2d 42, 45 (5th Cir. 1978); Brennan v. Southern Contractors Serv., supra, 492 F.2d at 501. This view is entitled to substantial de......