Reich v. Trinity Industries, Inc., No. 92-2559

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore HATCHETT and COX, Circuit Judges, and RONEY; HATCHETT; RONEY
Citation16 F.3d 1149
Parties, 16 O.S.H. Cas.(BNA) 1670, 1994 O.S.H.D. (CCH) P 30,374 Robert B. REICH, United States Secretary of Labor, Petitioner, Cross-Respondent, v. TRINITY INDUSTRIES, INC., Respondent-Cross Petitioner, Occupational Safety and Health Review Commission, Respondent.
Docket NumberNo. 92-2559
Decision Date22 March 1994

Page 1149

16 F.3d 1149
62 USLW 2604, 16 O.S.H. Cas.(BNA) 1670,
1994 O.S.H.D. (CCH) P 30,374
Robert B. REICH, United States Secretary of Labor,
Petitioner, Cross-Respondent,
v.
TRINITY INDUSTRIES, INC., Respondent-Cross Petitioner,
Occupational Safety and Health Review Commission, Respondent.
No. 92-2559.
United States Court of Appeals,
Eleventh Circuit.
March 22, 1994.

Page 1150

John Shortall, U.S. Dept. of Labor, Washington, DC, for appellant.

Robert E. Rader, Jr., Dallas, TX, for appellee.

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

Before HATCHETT and COX, Circuit Judges, and RONEY, Senior Circuit Judge.

HATCHETT, Circuit Judge:

The Secretary of Labor petitions this court for review of the Occupational Safety and Health Commission's determination that Trinity Industries, Inc. did not "willfully" violate 29 U.S.C. Sec. 654(a) and applicable regulations. We hold that the Commission misinterpreted the law, and Trinity willfully violated the Occupational Safety and Health Administration's (OSHA's) regulations.

BACKGROUND

Noise at the work place is a serious health problem. E.g., 46 Fed.Reg. 4078 (January 16, 1981). In enacting the Occupational Safety and Health Act of 1970 (the Act), Congress

Page 1151

aspired to deal with this and other health problems and "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions...." 29 U.S.C. Sec. 651(b) (1993). As part of Congress's goal to eradicate health hazards at the work place, the Secretary of Labor promulgated specific regulations in an effort to protect employees from unhealthy noise levels. The Secretary, pursuant to 29 U.S.C. Secs. 654(a) & 655, requires that employers establish and maintain a hearing conservation program when information indicates that employee noise exposures equal or exceed an eight hour time-weighted average sound level of eighty-five decibels. 29 C.F.R. Sec. 1910.95(c) (1992).

Periodic audiometric testing makes it possible to determine hearing loss resulting from noise in the work place. An audiogram is a record of an individual's hearing sensitivity and indicates how intense or loud a sound must be before the individual perceives it. With periodic audiometric testing, it is possible to document hearing loss and implement protective measures to prevent further loss. Pursuant to section 1910.95, an employer subject to the hearing conservation program must develop and implement a monitoring system at the plant, and perform baseline (initial) audiograms of employees against which subsequent audiograms may be compared. After the initial test, the employer must obtain a new audiogram at least annually and compare it to the initial audiogram. If the annual audiogram reveals a specified change in an employee's hearing threshold, further procedures are required.

Trinity in 1983, and the Secretary upon inspection in 1987, found that employee noise exposures at the Jacksonville, Florida plant equaled or exceeded an eight hour time-weighted average of eighty-five decibels. Trinity's Corporate Environmental and Safety Director, Jerry Riddles, testified that Trinity performed noise tests at the Jacksonville plant in 1983 that resulted in readings that "the time-weighted average of employee exposure was over 85 dBA [decibels]," but decided not to provide monitoring as required. 1 Riddles also testified that in 1983 Trinity was aware of OSHA's regulations under section 1910.95.

As an alternative, Trinity required its production employees to wear hearing protection devices all the time regardless of noise levels at any particular time or place. Trinity reasoned that because noise levels in different parts of its plants varied from day-to-day depending on the particular job, and employees moved in and out of the noisier areas frequently, its alternative hearing conservation program was superior to the program outlined in OSHA regulations. According to Trinity, the hearing protectors attenuated employee exposure to below 75 decibels.

PROCEDURAL HISTORY

The Secretary brought this enforcement action against Trinity. 29 U.S.C. Sec. 658(a). This action was the result of OSHA's inspection of Trinity's work place in 1987 at the Jacksonville, Florida plant. The Secretary issued a citation charging that Trinity willfully violated the Act, in failing to comply with occupational safety and health standards. 29 U.S.C. Sec. 654(a)(2). The secretary specifically charged that Trinity failed to develop and implement an employee hearing monitoring program, pursuant to 29 C.F.R. Sec. 1910.95(d)(1), and did not obtain baseline and annual audiograms from employees exposed to an eight hour time-weighted average of 85 decibels, pursuant to 29 C.F.R. Sec. 1910.95(g).

Trinity contested the citation, and on June 26, 1990, an administrative law judge (ALJ) determined that the Secretary erred in classifying the citation as "willful." The ALJ determined that substantial evidence did not support the Secretary's finding, and labeled the citation as "nonserious." The Secretary

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appealed the ALJ's decision to the Occupational Safety and Health Review Commission (Commission).

The Commission rejected the Secretary's determination that the citation was willful and agreed with the ALJ that Trinity's violation was "other than serious," based upon its findings that Trinity acted in good faith and the employees were "largely protected." After the Commission's ruling, the Secretary filed this appeal. Trinity filed a cross-petition requesting that this court classify the citation as de minimis. The Secretary's motion to dismiss Trinity's cross-petition has been carried with the case.

CONTENTIONS OF THE PARTIES

The Secretary contends that the Commission improperly applied the law when determining that Trinity did not willfully violate the Act, and that Trinity's intentional disregard of OSHA's regulations constitutes a willful violation. The Secretary also contends that Trinity's cross-petition is untimely. Trinity contends that the Commission correctly determined that it did not willfully violate OSHA regulations. Trinity also contends that this court should consider its cross-petition as timely filed in the interests of justice.

ISSUES

This appeal presents the following issues: (1) whether the Commission properly applied the test for a "willful" violation as that term is used in 29 U.S.C. Sec. 666(a); and (2) whether this court has jurisdiction over Trinity's cross-petition.

DISCUSSION

I. Willful violation

This court reviews the Commission's order to determine whether it is in accordance with the law. Horne Plumbing & Heating Co. v. OSHA, 528 F.2d 564, 567 (5th Cir.1976) (citing to 5 U.S.C.A. Sec. 706(2)(A)). The precise question is whether the Commission properly defined and applied the term "willful" as used in section 666 of the Act in reviewing the Secretary's citation.

The Commission acknowledged that Trinity was aware of section 1910.95 and its requirements: yet, Trinity intentionally chose to proceed at variance with the requirements. In determining whether Trinity willfully violated the Act, the Commission gave great weight to Trinity's belief that its alternative program was superior to the program outlined in the OSHA regulations and made compliance with section 1910.95 redundant and unnecessary. The Commission also considered relevant the apparent protection afforded Trinity employees through the alternative program. In effect, the Commission allowed (1) Trinity's good faith belief that its system was superior to the OSHA program and (2) the lack of evidence showing any employee harm from the alternative system to compel a finding that Trinity's failure to comply with the regulations was not willful.

Title 29 U.S.C. Sec. 666(a), titled "Willful or repeated violation," provides that "[a]ny employer who willfully or repeatedly violates the requirements of section 654 of this title, any standard, rule, or order promulgated pursuant to section 655 of this title, or regulations prescribed pursuant to this chapter, may be assessed a civil penalty of not more than $10,000 for each violation." The Secretary issued the citation at issue under this provision. The Act does not define the term "willful" or "willfully," and thus, we employ pertinent case law to discover the meaning of "willful."

The definition of "willful" in this circuit is, in its simplest form, "an intentional disregard of, or plain indifference to, OSHA requirements." Georgia Elec. Co. v. Marshall, 595 F.2d 309 (5th Cir.1979). Both parties agree that this is the proper definition and test for determining whether an employer "willfully" violated the Act. Trinity interprets this language as requiring a lack of good faith, or, stated in the inverse, a finding of good faith on the part of the employer precludes willfulness. Trinity argues that if an employer knows of OSHA regulations applicable to it, but considers compliance either not feasible or useless to protect its employees, the employer may disregard the regulations and create an alternative program in an attempt to accomplish

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what the OSHA regulations aim to do, and not be in willful violation.

In Georgia Elec. Co., 595 F.2d at 309, the Fifth Circuit interpreted the term "willful" in section 666. 2 The Georgia Electric Company petitioned the court to set aside the Commission's order upholding the Secretary's citation alleging a willful violation of an OSHA regulation. The court found that Georgia Electric was aware of its duty to conform to OSHA's requirements, yet "never made any effort" to so comply. Georgia Elec. Co., 595 F.2d at 319. With these facts, the court stated:

The Secretary of Labor ... urges us to adopt [the Commission's] definition of willful conduct. Under this definition, willful means an act done voluntarily, with either an intentional disregard of, or plain indifference to, OSHA requirements. General...

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    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 24, 2013
    ...that “ ‘every working man and woman in the Nation [had] safe and healthful working conditions.’ ” See Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1151 (11th Cir.1994) (quoting 29 U.S.C. § 651(b)). The Act “granted employees a new set of important rights and [intended] that they play a vita......
  • Bd. for Asbestos and Lead v. ABATECO SERV., Record No. 1719-99-2
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    • Virginia Court of Appeals of Virginia
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    ..."willful" has been defined as "`an intentional disregard of, or plain indifference to, OSHA requirements'" Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1152 (11th Cir.1994) (citation omitted). An employer's good faith belief is irrelevant to the question of whether an employer "willfully" v......
  • ComTran Grp., Inc. v. U.S. Dep't of Labor, No. 12-10275
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 24, 2013
    ...assure that "'every working man and woman in the Nation [had] safe and healthful working conditions.'" See Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1151 (11th Cir. 1994) (quoting 29Page 3U.S.C. § 651(b)). The Act "granted employees a new set of important rights and [intended] that they ......
  • J.A.M. Builders Inc. v. Herman, No. 99-11917
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 22, 2000
    ...1436, 1440 (11th Cir. 1997). We also review whether the Commission's order is "in accordance with the law." Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1152 (11th Cir. 1994). The safety standard at issue, 29 C.F.R. 1926.416(a)(1), No employer shall permit an employee to work in such proxim......
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20 cases
  • Comtran Grp., Inc. v. U.S. Dep't of Labor, No. 12–10275.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 24, 2013
    ...that “ ‘every working man and woman in the Nation [had] safe and healthful working conditions.’ ” See Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1151 (11th Cir.1994) (quoting 29 U.S.C. § 651(b)). The Act “granted employees a new set of important rights and [intended] that they play a vita......
  • Bd. for Asbestos and Lead v. ABATECO SERV., Record No. 1719-99-2
    • United States
    • Virginia Court of Appeals of Virginia
    • September 26, 2000
    ...has been defined as "`an intentional disregard of, or plain indifference to, OSHA requirements'" Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1152 (11th Cir.1994) (citation omitted). An employer's good faith belief is irrelevant to the question of whether an employer "willful......
  • ComTran Grp., Inc. v. U.S. Dep't of Labor, No. 12-10275
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 24, 2013
    ..."'every working man and woman in the Nation [had] safe and healthful working conditions.'" See Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1151 (11th Cir. 1994) (quoting 29Page 3U.S.C. § 651(b)). The Act "granted employees a new set of important rights and [intended] that th......
  • J.A.M. Builders Inc. v. Herman, No. 99-11917
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 22, 2000
    ...(11th Cir. 1997). We also review whether the Commission's order is "in accordance with the law." Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1152 (11th Cir. 1994). The safety standard at issue, 29 C.F.R. 1926.416(a)(1), No employer shall permit an employee to work in such proximi......
  • Request a trial to view additional results

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