Power Plant Div., Brown & Root, Inc. v. Occupational Safety and Health Review Com'n, No. 79-3677

CourtU.S. Court of Appeals — Fifth Circuit
Writing for the CourtBefore GODBOLD, Chief Judge, TUTTLE and HILL; GODBOLD
Citation659 F.2d 1291
Parties10 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 *
Decision Date26 October 1981
Docket NumberNo. 79-3677

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.

Page 1292

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."

Page 1293

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...

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11 practice notes
  • RSR Corp. v. Donovan, No. 81-4379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 26, 1984
    ...disregard this jurisdictional prerequisite. Power Plant Division, Brown & Root, Inc. v. Occupational Safety and Health Review Commission, 659 F.2d 1291, 1294 (5th Cir.1981), modified, 673 F.2d 111 (5th Cir.1982), quoting Keystone Roofing Co. v. Occupational Safety and Health Review Commissi......
  • P. Gioioso & Sons, Inc. v. Occupational Safety and Health Review Com'n, No. 96-1807
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 13, 1997
    ...language in a petition for review might be sufficient to satisfy this requirement." Power Plant Div., Brown & Root, Inc. v. OSHRC, 659 F.2d 1291, 1294 (5th Cir.1981) (quoting Cleveland Consolidated, 649 F.2d at 1164-65). But short of holding that the Commission is satisfactorily alerted to ......
  • D.A. Collins Const. Co., Inc. v. Secretary of Labor, No. 1713
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 1, 1997
    ...of the violative condition were in error. See Power Plant Div., Brown & Root, Inc. v. Occupational Safety & Health Review Comm'n, 659 F.2d 1291, 1293 & n. 3 (5th Cir. Unit B 1981) ("We have previously characterized [29 U.S.C. § 660(a) ] as a limit upon our jurisdiction"), modified and aff'd......
  • McNulty & Co., Inc. v. Secretary of Labor, No. 00-1508.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 19, 2002
    ...be considered by the court [of appeals]." See also Power Plant Div., Brown & Root, Inc. v. Occupational Safety & Health Review Comm'n, 659 F.2d 1291, 1293 & n. 3 (5th Cir. Unit B 1981) ("We have previously characterized [29 U.S.C. § 660(a)] as a limit upon our jurisdiction."), modified and ......
  • Request a trial to view additional results
11 cases
  • RSR Corp. v. Donovan, No. 81-4379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 26, 1984
    ...disregard this jurisdictional prerequisite. Power Plant Division, Brown & Root, Inc. v. Occupational Safety and Health Review Commission, 659 F.2d 1291, 1294 (5th Cir.1981), modified, 673 F.2d 111 (5th Cir.1982), quoting Keystone Roofing Co. v. Occupational Safety and Health Review Commissi......
  • P. Gioioso & Sons, Inc. v. Occupational Safety and Health Review Com'n, No. 96-1807
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 13, 1997
    ...language in a petition for review might be sufficient to satisfy this requirement." Power Plant Div., Brown & Root, Inc. v. OSHRC, 659 F.2d 1291, 1294 (5th Cir.1981) (quoting Cleveland Consolidated, 649 F.2d at 1164-65). But short of holding that the Commission is satisfactorily alerted to ......
  • D.A. Collins Const. Co., Inc. v. Secretary of Labor, No. 1713
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 1, 1997
    ...of the violative condition were in error. See Power Plant Div., Brown & Root, Inc. v. Occupational Safety & Health Review Comm'n, 659 F.2d 1291, 1293 & n. 3 (5th Cir. Unit B 1981) ("We have previously characterized [29 U.S.C. § 660(a) ] as a limit upon our jurisdiction"), modified and aff'd......
  • McNulty & Co., Inc. v. Secretary of Labor, No. 00-1508.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 19, 2002
    ...be considered by the court [of appeals]." See also Power Plant Div., Brown & Root, Inc. v. Occupational Safety & Health Review Comm'n, 659 F.2d 1291, 1293 & n. 3 (5th Cir. Unit B 1981) ("We have previously characterized [29 U.S.C. § 660(a)] as a limit upon our jurisdiction."), modified and ......
  • Request a trial to view additional results

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