Phoenix Roofing, Inc. v. Dole, 88-4492

• Decision Date: 09 June 1989
• Docket Number: No. 88-4492,88-4492
• Parties: 14 O.S.H. Cas.(BNA) 1036, 1989 O.S.H.D. (CCH) P 28,571 PHOENIX ROOFING, INC., Petitioner, v. Elizabeth DOLE, Secretary of Labor, and Occupational Safety and Health Administration, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1027

874 F.2d 1027

14 O.S.H. Cas.(BNA) 1036, 1989 O.S.H.D. (CCH)

P 28,571

PHOENIX ROOFING, INC., Petitioner, v. Elizabeth DOLE, Secretary of Labor and Occupational Safety and Health Administration, Respondents.

No. 88-4492.

United States Court of Appeals Fifth Circuit.

June 9, 1989.

Robert E. Rader, Jr., Dallas, Tex., for petitioner.

Patrick D. Gilfillan, Barbara E. Kahl, Ann Rosenthal, Ray H. Darling, Executive Secretary, OSHRC, Washington, D.C., James A. Wirz, Office of the Solicitor, Atty. for Secretary of Labor, U.S. Dept. of Labor, Dallas, Tex., for respondents.

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

Before GARWOOD, JONES, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The petitioner in this case contests a citation issued by the Occupational Safety and Health Administration (OSHA) for an asserted violation of certain safety regulations. Our task is twofold: On the one hand, we must determine at what point the zealous enforcement of administrative employee safety regulations becomes hypertechnical and counterproductive in light of employer compliance with the purposes of the regulations; on the other hand, we must circumscribe carefully the extent to which employers may disregard the regulations and make their own safety evaluations without facing serious penalties.

I. Factual and Procedural Background.

The determinative facts in this case are not complicated. Petitioner Phoenix Roofing, Inc. ("Phoenix"), was reroofing a building at Dallas's Love Field Airport at the time the citation was issued. The roof measured 350 feet by 150 feet. However, work was performed to completion on sections measuring only 24 feet by 32 feet. Each section was subjected to a three-phase process.

There is no dispute that Phoenix complied with all appropriate regulations through the first and most of the second phases of work on the section in question. However, OSHA contends that Phoenix failed to meet fall-protection requirements near the completion of the second phase and during the third phase.

Phoenix admits that it was in technical noncompliance with the regulations during the third stage because of its use of monitors as the sole safety device. It contends, however, that the employment of any of the conforming methods at this point was either infeasible or would have created additional dangers because the work involved the pouring of hot asphalt. Phoenix also denies that there was sufficient evidence indicating a violation during phase two.

OSHA cited Phoenix for its use of monitors as an exclusive safety device, pursuant to 29 C.F.R. Sec. 1926.500(g)(1), (3). The citation was issued after OSHA's compliance officer had observed, for about one-half hour, six Phoenix employees working near the edge of the roof. ¹ Phoenix contested the citation before an administrative law judge (ALJ), who dismissed the charge that was issued under section 1926.500(g)(3) but upheld the one issued under section 1926.500(g)(1). Following proper administrative procedures, Phoenix then petitioned the Occupational Safety and Health Review Commission (OSHRC) for review of the ALJ's decision; review was denied because OSHRC did not have a quorum at that time. This petition followed.

II. Standard of Review.

We must uphold the ALJ'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). Fred Wilson Drilling Co. v. Marshall, 624 F.2d 38, 40 (5th Cir.1980). Substantial evidence means " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 232 (5th Cir.1974) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951)). We will not reweigh the evidence or independently evaluate evidentiary conflicts. Irwin Steel Erectors, Inc. v. OSHRC, 574 F.2d 222, 223-24 (5th Cir.1978) (per curiam).

In interpreting administrative statutes and regulations, we accord great deference to those officers and bodies charged with their administration. Brock v. Schwarz-Jordan, Inc., 777 F.2d 195, 196 (5th Cir.1985) (per curiam). Ordinarily, we will reverse on such matters only upon finding a plain error or an inconsistency with the regulation's purpose. United Steelworkers of Am. v. Schuylkill Metals Corp., 828 F.2d 314, 319 (5th Cir.1987) (citing Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-02, 13 L.Ed.2d 616 (1965)).

III. Violation of 29 C.F.R. Sec. 1926.500(g)(1).

In order to comply with 29 C.F.R. Sec. 1926.500(g)(1), when working on a roof more than 50 feet in width, an employer must use either (i) a motion-stopping device, such as safety nets or guardrails, at the edge of the roof, or (ii) a warning line which an employee will bump into when he or she is within 6 feet of the edge of the roof. ² At the time the instant citation was issued, Phoenix admits that it was working on a roof more than 50 feet in total width without employing either type of approved safety measure. Instead, it was using a monitor system whereby two experienced employees had as their sole responsibility the duty to watch those working on the roof and to warn them if they approached the edge.

Under the regulations, such a safety system is acceptable as an exclusive safety measure only as to work on a roof less than 50 feet in total width. 29 C.F.R. Sec. 1926.500(g)(1)(iii). On wider roofs, the visual difficulties in monitoring, and the problem of hearing far-away monitors, are thought by the agency to be too great for this method to be effective. See 29 C.F.R. Sec. 1926.502(p)(7); 45 Fed.Reg. 75,621 (Nov. 14, 1980).

Phoenix acknowledges this consideration but argues that it constructively complied with the requirements in that the roof section it was working on was without question less than 50 feet wide, so that workers were never spread over an area of more than 50 feet. Moreover, Phoenix maintains, apparently without contradiction from OSHA, that it was physically impracticable or impermissible under Federal Aviation Administration regulations to use any of OSHA's approved methods during phase three because of the characteristics of the building and the type of work being performed. ³

Finally, Phoenix reminds us that safety monitors are a permissible form of protection for employees working within 6 feet of the edge where only a warning line is in place. Here, the citation was issued based upon the compliance officer's observation of employees working 4 feet from the edge. ⁴ Thus, even though there was no warning line, the monitors provided at least the same protection which the workers in question would have received if there had been a warning line in place. ⁵ In fact, Phoenix's system likely provided greater protection, since Phoenix assigned at least two employees to monitor a work area for which the regulations would require only one. ⁶

While it is evident that Phoenix was in compliance with the spirit of the regulations, and that the safety measures taken equaled or exceeded the protections afforded by the approved methods, we nevertheless cannot reverse on such a basis. ⁷ This is because as a matter of undisputed fact, Phoenix's actions did violate OSHA's interpretation of the regulation that the entire roof, rather than the effective work area, must be measured in determining the applicability of the 50-foot convention.

Moreover, under the above standard of review, we are not free to overrule this plain-meaning interpretation and substitute our own. See Austin Commercial v. OSHRC, 610 F.2d 200, 201 (5th Cir.1979) (per curiam); Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir.1976). Section 1926.500(g)(1)(iii) explicitly provides that the width of the "roof" controls; section 1926.502(p)(6) defines "roof" as "the exterior surface on the top of a building." Phoenix's common-sense argument that "work area" width should control simply cannot be sustained once OSHA has chosen to issue citations based upon the literal wording of the regulation.

It would also be improvident for us to overrule OSHA's interpretation of its regulations, for to do so would send employers the message that they could ignore the obvious mandates of the safety regulations and independently determine what, if any, measures should be undertaken in a given situation. In this case, we are satisfied that the measures taken provided protection equal to or greater than those required by regulation. ⁸ In its brief on appeal, OSHA does not appear to contend otherwise. However, under our settled precedent, "an employer must follow the law even if it has a good faith belief that its own policy is wiser." RSR Corp. v. Brock, 764 F.2d 355, 363 (5th Cir.1985).

IV. De Minimis Classification.

A violation of the Occupational Safety and Health Act of 1970 (the "Act") is designated as serious, not serious, or de minimis. See Brennan v. Butler Lime & Cement Co., 520 F.2d 1011, 1019 n. 10 (7th Cir.1975). "Absent ... a direct, immediate nexus between noncompliance and employee safety or health, a violation of an OSHA standard may be classified as de minimis.... The consequence of [such] a determination ... is that, though a violation has [technically] occurred, abatement is unnecessary and no penalty is imposed." Donovan v. Daniel Const. Co., 692 F.2d 818, 821 (1st Cir.1982) (citations omitted). See also Keco Industries, Inc., 11 O.S.H.Cas. (BNA) 1832, 1834 (Rev. Comm'n 1984).

Despite Phoenix's convincing argument that its violation was purely technical at worst and created no additional safety risk, the ALJ found it to be "serious" and deserving of penalties. Phoenix concedes that a de minimis citation, rather than no citation at all, may have been appropriate but asserts that the "serious" designation is uncalled for here. We agree with Phoenix and reverse the agency's determination, based upon our conclusion that the ALJ...