Power Plant Div., Brown & Root, Inc. v. Occupational Safety and Health Review Com'n, 79-3677

• Decision Date: 26 October 1981
• Docket Number: No. 79-3677,79-3677
• Citation: 659 F.2d 1291
• Parties: 10 O.S.H. Cas.(BNA) 1066, 1981 O.S.H.D. (CCH) P 25,741 POWER PLANT DIVISION, BROWN & ROOT, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Raymond J. Donovan, Respondents. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1291

659 F.2d 1291

10 O.S.H. Cas.(BNA) 1066, 1981 O.S.H.D. (CCH)

P 25,741

POWER PLANT DIVISION, BROWN & ROOT, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Raymond J. Donovan, Respondents.

No. 79-3677.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Oct. 26, 1981.

Powell, Brown & Maverick & Associate, P.C., Houston, Tex., for petitioner.

Allen H. Feldman, Dennis K. Kade, U.S. Dept. of Labor, Washington, D.C., for respondents.

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

Before GODBOLD, Chief Judge, TUTTLE and HILL, Circuit Judges.

GODBOLD, Chief Judge:

Like the petitioners in S&H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (5th Cir. 1981), decided today, petitioner Power Plant Division, Brown & Root, Inc. (Brown & Root) seeks review of a final order of the Occupational Safety and Health Review Commission finding it in serious violation of 29 C.F.R. § 1926.28(a) ¹ for failing to provide appropriate personal protective equipment for employees working at heights. Unlike our decision in S&H Riggers, however, we affirm the citation issued to Brown & Root.

Brown & Root is a large construction firm based in Texas. At the time of the inspection that gave rise to this proceeding Brown & Root was engaged in constructing a nuclear power plant in Glen Rose, Texas. The reinforced concrete structures were built by erecting a framework of steel reinforcing rods ("rebars"), mounting metal forms around the rebars to hold the concrete while it set, and then pouring concrete into the framework. Two groups of employees were exposed to the alleged hazard. Employees called "cadwelders" worked in vertical lines across the sides of the structure, burning off the overlapping ends of rebars and welding the rebars together. Because each cutting and welding operation took some time, a cadwelder generally did not move far during the course of a working day. Carpenters also worked on the side of the structure, their work being such that they frequently climbed up, down, and across the structure for some distance. Both cadwelders and carpenters worked at heights of up to 270 feet above the ground.

It was stipulated that Brown & Root had an extensive and enforced safety program. All employees working over six feet above the ground were required to wear safety belts tied off to lanyards ² except when moving from place to place. When working at a given location both cadwelders and carpenters tied off their safety belts to either rebars or metal forms by means of a one-quarter inch chain and a large hook. When moving from place to place on the side of the structure, however, neither group of employees were provided with any means of tying off their safety belts.

On the day before the inspection a carpenter fell to his death from the structure. At the time of the fall he was moving horizontally on the structure, attempting to maneuver around a corner of the building. He wore a safety belt, but it was not tied off.

At the time of the inspection the compliance officer observed both carpenters and cadwelders moving vertically and horizontally across the side of the structure without tying off their safety belts. A citation for violation of 29 C.F.R. § 1926.28(a) was issued, Brown & Root filed a timely notice of contest, and a hearing was held. In its post-hearing brief to the ALJ Brown & Root argued that the case was controlled by the Commission's decision in S&H Riggers & Erectors, Inc., 1979 CCH OSHD P 23,480. The brief, quoting from that opinion, stated the applicable standard as follows:

"Certainly, industry custom and practice are important reference points in determining whether a reasonable person familiar with the facts unique to a particular industry would recognize a hazard necessitating the use of personal protective equipment. However, custom and practice are not controlling."

Respondent's Brief to ALJ at 7 (emphasis added).

The ALJ found that some method of tying off employees moving from place to place on the side of the structure was both necessary and feasible and, accordingly, affirmed the citation. Brown & Root filed with the Commission a petition for discretionary review, again citing the Commission's S&H Riggers decision as the controlling precedent. Brown & Root argued that under S&H Riggers the Secretary was required to prove either that it was the industry practice to provide lifelines to workers moving about on the sides of such a structure or that a reasonable person would recognize a need for lifelines under these circumstances and that the Secretary had failed to meet either requirement. Brown & Root also argued that the methods of abatement suggested by the Secretary were not feasible. The Commission denied review, and Brown & Root petitioned this court for review of the ALJ's decision.

In this court Brown & Root argues for the first time that the ALJ's decision cannot stand because he relied on the Commission's decision in S&H Riggers & Erectors, Inc., 1979 CCH OSHD P 23,480, which held that industry practices are not controlling in determining whether failure to provide personal protective equipment is a violation of § 1926.28(a). Brown & Root contends that, under the law of this circuit, industry practices are determinative of an employer's duty under § 1926.28(a) and that the Secretary failed to establish that it is the customary practice in the industry to provide lifelines for workers climbing up, down, and across concrete forms and rebars. Although we have today reaffirmed that proof of a violation of § 1926.28(a) requires a showing that the employer either failed to provide or to require the use of personal protective equipment customarily used in its industry or had actual knowledge of the need for personal protective equipment, S&H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (5th Cir. 1981), rev'g 1979 CCH OSHD P 23,480, we are precluded from considering this argument in Brown & Root's case because it did not raise the issue below. ³

In a proceeding to review an order of the Commission or of one of its ALJ's "(n)o 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 "the language of section 660(a) indicates that proceedings targeted towards the Commission, not those before the administrative law judges, are the predicate to judicial review," McGowan v. Marshall, 604 F.2d 885, 890 (5th Cir. 1979), an employer who fails to either file a petition for discretionary review with the Commission, or to file a brief if review is directed sua sponte, is precluded from obtaining judicial review. Since Brown & Root petitioned the Commission for discretionary review, it is not entirely precluded from judicial review. However, on the issue of the effect of compliance with industry practices Brown & Root's petition was wholly inadequate to satisfy the requirement of § 660(a) that an objection be "urged before the Commission."

We have recently held that an argument need not necessarily be specifically raised in an employer's review petition in order to preserve it for judicial review, at least in the case of review petitions filed before the Commission's decisions in Gannett Rochester Newspaper Corp. and Rochester Newspaper Pressman's Union No. 36, 3 Empl. Safety and Health Guide (CCH) P 25,323 (1981) and Austin Bldg. Co., 1980 CCH OSHD P 24,839, which require greater specificity in review petitions. In Cleveland Consolidated, Inc. v. OSHRC, 649 F.2d 1160, 1164-65, (5th Cir. 1981), we held that "McGowan requires simply that the Commission be alerted to the issues and have the opportunity to pass on them before a court begins its review of the administrative process. Broad language in a petition for review might be sufficient to satisfy this requirement...." Thus, while great specificity is not required in a review petition, this court may not consider an argument unless the Commission has been "alerted to the issues."

Brown & Root's review petition is not only insufficient to alert the Commission to the arguments it now seeks to raise, but, in the context of this case, is actually affirmatively misleading with respect to Brown & Root's position on this issue. First, neither Brown & Root's brief to the ALJ nor its review petition cites any of the Fifth Circuit cases on which it now seeks to rely or mentions the conflict between those cases and the Commission's S&H Riggers opinion. Nor did Brown & Root argue to either the ALJ or the Commission that industry practices are controlling in a § 1926.28(a) citation proceeding. Although this alone might seem sufficient to preclude review, we do not rest our decision on it. In his opinion the ALJ discussed the Fifth Circuit cases and the conflict with S&H Riggers. The ALJ rejected the Fifth Circuit precedent and followed the Commission's S & H Riggers decision because, as an OSHA ALJ, he felt bound by Commission precedent even in a circuit holding to the contrary. The ALJ noted, however, that Brown & Root could probably obtain a reversal in this court on that ground. Despite this, Brown & Root's review petition accepts the Commission's S&H Riggers decision as controlling precedent and argues only that the ALJ misapplied that precedent. ⁴ In the face of the ALJ's clear discussion of the precise issue Brown & Root now seeks to raise, the Commission could only conclude from its review petition that, for whatever reason, Brown & Root had decided not to challenge the Commission's position on industry practice. Our reversal of S&H Riggers demonstrates that we cannot accept the Commission's position on industry practice but to reverse the...