S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Com'n, Nos. 79-2358

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GODBOLD, Chief Judge, TUTTLE and HILL; GODBOLD
Citation659 F.2d 1273
Parties10 O.S.H. Cas.(BNA) 1057, 1981 O.S.H.D. (CCH) P 25,733 S & H RIGGERS & ERECTORS, INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION and Raymond J. Donovan, Secretary of Labor, Respondents. STANDARD ROOFING & SHEET METAL, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Raymond J. Donovan, Secretary of Labor, Respondents, S & H RIGGERS & ERECTORS, INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION and Raymond J. Donovan, Secretary of Labor, Respondents. . Unit B *
Decision Date26 October 1981
Docket NumberNos. 79-2358,79-3319 and 80-7297

Page 1273

659 F.2d 1273
10 O.S.H. Cas.(BNA) 1057, 1981 O.S.H.D. (CCH)
P 25,733
S & H RIGGERS & ERECTORS, INC., Petitioner,
v.
OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION and Raymond
J. Donovan, Secretary of Labor, Respondents.
STANDARD ROOFING & SHEET METAL, INC., Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Raymond
J. Donovan, Secretary of Labor, Respondents,
S & H RIGGERS & ERECTORS, INC., Petitioner,
v.
OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION and Raymond
J. Donovan, Secretary of Labor, Respondents.
Nos. 79-2358, 79-3319 and 80-7297.
United States Court of Appeals,
Fifth Circuit.
Unit B *
Oct. 26, 1981.

Page 1274

Stokes & Shapiro, Ira J. Smotherman, Jr., Atlanta, Ga., for petitioners.

Dennis K. Kade, John R. Bradley, Atty., Ann D. Nachbar, Allen H. Feldman, U. S. Dept. of Labor, Washington, D. C., Anthony J. Steinmeyer, Marleigh Dover Lang, Dept. of Justice, Civil Div., Washington, D. C., for respondents.

Petitions for Review of Orders of the Occupational Safety and Health Review Commission.

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

Page 1275

GODBOLD, Chief Judge:

In these consolidated cases under the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., we are again presented with the question whether an employer whose conduct is in compliance with the custom and practice of its industry may be found to have violated 29 C.F.R. § 1926.28(a), 1 the primary OSHA regulation pertaining to the provision of personal protective equipment to employees in the construction industry. We have re-examined our earlier cases on this issue, and we reaffirm our conclusion in these cases that, at least in the absence of a clear articulation by the Occupational Safety and Health Review Commission of the circumstances in which industry practice is not controlling, due process requires a showing that the employer either failed to provide personal protective equipment customarily required in its industry or had actual knowledge that personal protective equipment was required under the circumstances of the case. 2

S&H Riggers & Erectors, Inc. is a prestress concrete 3 erection subcontractor that has been in business since 1970. Prestress concrete buildings are constructed of "tees," floor panels weighing approximately 12,000 pounds, and facia, wall panels weighing about 8,000 pounds. The panels are trucked to the site and lifted into place by crane. Once lifted into place they are held in position by the crane until welded to support pillars and beams by S&H's employees.

At the time of the inspection giving rise to the citation in No. 79-2358 (S&H I ) S&H was engaged in constructing a four-story office building. The record is unclear as to precisely what S&H's employees were doing at the time of the inspection, but it is uncontested that the compliance officer observed four employees standing within four feet of the open edge of the fourth floor without perimeter guarding (such as a guardrail) or personal protective equipment. At the hearing it was established that after S&H finished its work on each floor the general contractor erected perimeter guarding in order to comply with OSHA requirements for protection of employees in other trades. S& H's witnesses testified without contradiction that the only fall of which they were aware from the outside of a building in the prestress concrete erection industry was caused by an employee tripping over a "lifting loop" on the surface of a tee, and they also testified that in order to prevent such an accident S&H always burns the lifting loops off of tees and facia panels as soon as they have been welded in position.

Case No. 80-7297 (S&H II ) involves two citations arising out of separate inspections of two different work sites in Atlanta, Georgia. At the World Congress Center site employees of S&H were observed working near the edge of an open temporary floor some 60 feet above the ground installing facia panels without perimeter protection or personal protective equipment. At the MARTA site S&H employees were observed working at the edge of the top level of the building, again installing facia panels.

Page 1276

When the compliance officer arrived on the site he noticed S&H's employees working without belts. When he came to their work position during his walkaround inspection, however, they were wearing the belts.

The evidence in S&H II established that at some time after the inspection in S&H I the company instituted a policy requiring its employees to wear safety belts except when the employees felt it was unsafe to do so. In practice this seems to have meant that employees performing initial tack welds holding the facia panels in position did not wear belts, while other employees who followed and applied the permanent welds were expected to wear belts.

Standard Roofing & Sheet Metal, Inc., case No. 79-3319, is a roofing and sheet metal contractor. At the time of the inspection that gave rise to this citation Standard was repairing the flat roof of a four story building. The compliance officer observed employees of Standard in the act of "scratching back" the gravel around the edge of the roof in preparation for resurfacing. The employees were not provided with any form of fall protection. "Scratching back" involves bending over at the waist and using short strokes with the claw of a claw hammer to dislodge gravel from the tar or asphalt in which it is embedded.

According to testimony of the compliance officer and of Standard's foreman, the compliance officer remarked at the time of the inspection that it was a windy day, but the two disagreed on whether it was windy enough to present a risk that a worker might be blown off the edge of the roof. No attempt was made to determine the force of the wind, and the record does not indicate whether the wind was steady or gusting.

After the inspection an officer of Standard brought safety belts and lifelines to the worksite, and the employees used them thereafter, fastening the lifelines to air conditioners and similar protrusions on the roof. Standard had previously used safety belts on a job on the roof of an 18 story building under what were described as "very windy" conditions. Standard's witnesses testified that they considered the conditions on that job to be substantially different from those on the job involved herein, but the record does not contain a detailed description of conditions on the 18-story job.

Standard had previously been cited for failure to provide safety belts to employees working on the roof of a two story building. Standard did not contest this citation and stated at the time that it had abated the alleged hazard. The record does not reflect, however, whether safety belts were actually used by Standard employees at that time.

As a result of the inspection of their work sites S&H and Standard were issued citations for alleged violations of § 1926.28(a). 4 In each case the employer timely contested the citation, 29 U.S.C. § 659(c), and the Secretary of Labor filed a formal complaint. 29 C.F.R. § 2200.33. The Administrative Law Judge in each case affirmed the citations, and the employers petitioned the Commission for discretionary review under 29 U.S.C. § 661(i) and 29 C.F.R. § 2200.91. The Commission granted review in S&H I and S&H II and issued opinions affirming the ALJs. Review was denied in Standard, whereupon the decision of the ALJ became the final order of the Commission. Each employer timely invoked the jurisdiction of this court under 29 U.S.C. § 660(a). The standard of review is the same in each case, see Fred Wilson Drilling Co. v. Marshall, 624 F.2d 38 (5th Cir. 1980). We must affirm if the decisions below are supported by substantial evidence in the record as a whole and if in accordance with law. Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564, 567 (5th Cir. 1976).

Before turning to the orders of the Commission in these cases it is helpful to examine briefly the history of § 1926.28(a) in the Fifth Circuit. This court's struggle to define the requirements of due process in

Page 1277

connection with broadly worded OSHA regulations began with Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974), a case involving 29 C.F.R. § 1910.132(a), 5 the general industry analog to § 1926.28(a). In Ryder we rejected the employer's argument that § 1910.132(a) lacked any ascertainable standard of conduct and was therefore void for vagueness:

The regulation appears to have been drafted with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury. Moreover, we think inherent in that standard is an external and objective test, namely, whether or not a reasonable person would recognize a hazard of foot injuries to dockmen, in a somewhat confined space, from falling freight and the rapid movement of heavy mechanical and motorized equipment, which would warrant protective footwear. So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster.

497 F.2d at 233 (emphasis added).

Our next encounter with this issue was B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir. 1978), a case under § 1926.28(a). Adopting the approach we had taken in Ryder, we again sustained the regulation against a vagueness attack. In doing so, however, we elaborated on the content of the "reasonable person" standard applicable to §§ 1910.132(a) and 1926.28(a). We noted that the "reasonable person" standard is borrowed from tort law and that industry custom is not dispositive on the issue of the standard of care in negligence actions. 583 F.2d at 1370. We concluded, however, that rigid application of the tort law concept would be inconsistent with the preventive goals of OSHA and Congress's expressed preference for specific rather than general standards. 6

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35 practice notes
  • Faultless Div., Bliss & Laughlin Industries, Inc. v. Secretary of Labor, No. 81-1740
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 30, 1982
    ...of Labor, 657 F.2d 119 (7th Cir. 1981) (noise regulation-29 C.F.R. § 1910.95(b) (1980)); S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (5th Cir. 1981) (personal protective equipment for construction industry-29 C.F.R. § 1926.28(a) (1980)); Pratt & Whitney Aircraft, Division of Unit......
  • Chemetron Corp. v. Business Funds, Inc., No. 80-1658
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 16, 1982
    ...are bound by it until it is reversed by the Supreme Court or overruled by this circuit en banc. S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1278-79 (5th Cir. 1981). In Huddleston, plaintiffs sought damages for alleged materially misleading statements in a prospectus. 640 F.2d at......
  • United Steelworkers of America, AFL-CIO-CLC v. Schuylkill Metals Corp., AFL-CIO-CLC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 2, 1987
    ...fair advance warning to employers of the compensation mandated during an employee's removal. See S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1282 (5th For the foregoing reasons, this case is REVERSED and REMANDED for further proceedings attuned to this opinion. EDITH H. JONES, C......
  • Johnson v. U.S. R.R. Retirement Bd., Nos. 90-1243
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 11, 1992
    ...the conflicting views of U.S. Courts of Appeals. See, e.g., S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Comm'n, 659 F.2d 1273, 1278 (5th Cir. Unit B Oct.1981). At oral argument before this court, similarly, the Railroad Board emphasized its responsibilities as a "n......
  • Request a trial to view additional results
35 cases
  • Faultless Div., Bliss & Laughlin Industries, Inc. v. Secretary of Labor, No. 81-1740
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 30, 1982
    ...of Labor, 657 F.2d 119 (7th Cir. 1981) (noise regulation-29 C.F.R. § 1910.95(b) (1980)); S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (5th Cir. 1981) (personal protective equipment for construction industry-29 C.F.R. § 1926.28(a) (1980)); Pratt & Whitney Aircraft, Division of Unit......
  • Chemetron Corp. v. Business Funds, Inc., No. 80-1658
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 16, 1982
    ...are bound by it until it is reversed by the Supreme Court or overruled by this circuit en banc. S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1278-79 (5th Cir. 1981). In Huddleston, plaintiffs sought damages for alleged materially misleading statements in a prospectus. 640 F.2d at......
  • United Steelworkers of America, AFL-CIO-CLC v. Schuylkill Metals Corp., AFL-CIO-CLC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 2, 1987
    ...fair advance warning to employers of the compensation mandated during an employee's removal. See S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1282 (5th For the foregoing reasons, this case is REVERSED and REMANDED for further proceedings attuned to this opinion. EDITH H. JONES, C......
  • Johnson v. U.S. R.R. Retirement Bd., Nos. 90-1243
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 11, 1992
    ...the conflicting views of U.S. Courts of Appeals. See, e.g., S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Comm'n, 659 F.2d 1273, 1278 (5th Cir. Unit B Oct.1981). At oral argument before this court, similarly, the Railroad Board emphasized its responsibilities as a "n......
  • Request a trial to view additional results

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