Western Waterproofing Co., Inc. v. Marshall

• Citation: 576 F.2d 139
• Decision Date: 02 June 1978
• Docket Number: No. 77-1324,77-1324
• Parties: 6 O.S.H. Cas.(BNA) 1550, 1978 O.S.H.D. (CCH) P 22,731 WESTERN WATERPROOFING CO., INC., Petitioner, v. Ray MARSHALL, Secretary of Labor, and Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 139

576 F.2d 139

6 O.S.H. Cas.(BNA) 1550, 1978 O.S.H.D. (CCH) P 22,731

WESTERN WATERPROOFING CO., INC., Petitioner, v. Ray MARSHALL, Secretary of Labor, and Occupational Safety and Health Review Commission, Respondents.

No. 77-1324.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 10, 1978.

Decided May 9, 1978.

Rehearing and Rehearing En Banc Denied June 2, 1978.

Thomas M. Moore (argued), and Richard W. Miller of Miller, Simmons, Moore &amp Jung, Kansas City, Mo., on brief, for petitioner.

Charles I. Hadden, Atty. U. S. Dept. of Labor, Washington, D. C. (argued), Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for OS&HRC, Michael H. Levin, Counsel for App. Litigation, and Allen H. Feldman, Asst. Counsel for App. Litigation, Washington, D. C., for respondents.

Before BRIGHT, STEPHENSON and HENLEY, Circuit Judges.

STEPHENSON, Circuit Judge.

Appellant, Western Waterproofing Co., Inc. (Western), appeals from an Occupational Safety and Health Review Commission (Review Commission) decision finding Western in willful violation of the Occupational Safety and Health Act of 1970 ¹ (Act). ² In substance, the Review Commission found that Western had willfully failed to comply with construction safety standards requiring employees to be protected by approved safety belts attached to lifelines when working on two-point suspension scaffolds, ³ requiring such scaffolds to be securely lashed to the building, ⁴ and requiring such scaffolds to be equipped with toeboards and midrails. ⁵

The facts surrounding the alleged violations are largely uncontested. On July 11, 1974, Western employees were engaged in sandblasting and finishing operations on the exterior walls of a four-story brick building in Omaha, Nebraska. They were working from two-point suspension scaffolds suspended at various heights ranging from approximately 17 to 47 feet above the ground. The scaffolds were equipped with a guardrail on the platform edge facing away from the building, but had no toeboards or midrails on any of the sides and were not lashed to the walls of the building. No lifelines had been rigged, and some five employees were working from the scaffolds without safety belts.

Following an inspection by Occupational Safety and Health Administration (OSHA) compliance officers, Western was cited for willfully violating the safety belt and lifeline standard, ⁶ the lashing standard, ⁷ and a general scaffolding standard requiring scaffolds to have guardrails and toeboards. ⁸ The proposed penalty was $9000. Western timely filed its notice contesting the alleged violations contained in the citation and the proposed penalty as excessive.

The administrative law judge affirmed a willful violation of these three standards and the proposed penalty of $9000. Western timely filed its petition for discretionary review with the Review Commission and review was granted. The Review Commission, Commissioner Moran dissenting, held that Western had willfully violated the safety belt and lifeline standard and the lashing standard. The Review Commission refrained from ruling on whether Western had willfully violated the general scaffolding standard requiring guardrails and toeboards ⁹ and, instead, sua sponte amended the citation and held that Western had willfully violated the more specific standard requiring midrails in addition to guardrails and toeboards. ¹⁰ We have jurisdiction to hear Western's appeal under section 11(a) of the Act, 29 U.S.C. § 660(a), the alleged violations having occurred in Omaha, Nebraska.

The principal issues in this appeal are whether there was substantial evidence to support the finding of the Commission that Western willfully violated the lashing standard, toeboard standard, and the lifeline and safety belt standard and whether the Commission abused its discretion in imposing the $9000 penalty. 29 U.S.C. § 660(a); see Brennan v. OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973).

Western argues that its failure to install toeboards or to lash the scaffold to the building was not a willful violation of the Act because it met the underlying purpose of the provision through other means. ¹¹ In dealing with this argument we must define what constitutes a willful violation under the Act. Although a "willful violation" is not defined in the Act, the Review Commission and the Secretary of Labor have interpreted a willful violation to be "an act done voluntarily with either an intentional disregard of, or plain indifference to, the Act's requirements." General Electric Co., (1977) 3 Empl. Safety & Health Guide (CCH) (1977-1978 Occup. Safety & Health Dec.) P 21,853 (May 19, 1977); Kent Nowlin Constr., Inc., (1977) 3 Empl. Safety & Health Guide (CCH) (1977-1978 Occup. Safety & Health Dec.) P 21,550 (Feb. 15, 1977); Williams Enterprises, Inc., (1976-1977) Occup. Safety & Health Dec. (CCH) P 21,071 (Sept. 8, 1976). "When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration." Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Usery v. Godfrey Brake & Supply Service, Inc., 545 F.2d 52, 55 (8th Cir. 1976).

The Review Commission's definition is in accord with that adopted by the Fourth, Tenth and First Circuits. In Intercounty Constr. Co. v. OSHRC,522 F.2d 777, 779-80 (4th Cir. 1975), cert. denied, 423 U.S 1072, 92 S.Ct. 854, 47 L.Ed.2d 82 (1976), the court observed that "(n)o showing of malicious intent is necessary. * * * Regardless of any good-faith belief that the work area remained safe the fact is that the company knowingly chose not to comply with the OSHA regulations and requirements. That decision was a willful action in violation of the law."

In United States v. Dye Constr. Co., 510 F.2d 78, 81 (10th Cir. 1975), the court approved a jury instruction on willfulness which reads as follows:

The failure to comply with a safety standard under the Occupational Safety and Health Act is willful if done knowingly and purposely by an employer who, having a free will or choice, either intentionally disregards the standard or is plainly indifferent to its requirement. An omission or failure to act is willfully done if done voluntarily and intentionally.

In F. X. Messina Const. Corp. v. OSHRC, 505 F.2d 701, 702 (1st Cir. 1974), the court, in affirming the Commission's finding of willfulness, observed: "Petitioner, through its foreman, made its choice, a conscious, intentional, deliberate, voluntary decision, which, regardless of a venial motive, properly is described as willful." Cf. Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3d Cir. 1974), aff'd en banc, 519 F.2d 1215 (3d Cir. 1975), aff'd on other grounds, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977). "Willfulness connotes defiance or such reckless disregard of consequences as to be equivalent to a knowing, conscious, and deliberate flaunting of the Act. Willful means more than merely voluntary action or omission it involves an element of obstinate refusal to comply." Id. at 1207. We are in accord with the views expressed in the Fourth, Tenth and First Circuits set out above.

In applying this standard to the present case, we need not decide whether or not Western did in fact believe that their actions met the underlying purpose of the standards through other means. Western's management personnel were well aware of the scaffolding standards for which they were cited. Western's officials substituted their own judgment for the provisions of the standards and therefore cannot escape the conclusion that they acted voluntarily with either intentional disregard of, or plain indifference to, the requirements of the Act. ¹² The regulations allow no such unbridled discretion.

For example, the Commission made the following observation with respect to the lashing citation:

With respect to the lashing allegation, however, the standard is unequivocal, and Respondent argues only that it did not comply with the standard because it thought the scaffold was adequately prevented from swaying without lashing. Essentially, Respondent's position is that it may disregard the standard if it unilaterally determines that compliance is not necessary. We agree with the Judge that Respondent's position amounts to a deliberate choice to disregard the requirements of the standard. The violation of 1926.451(i)(9) was therefore willful. (Footnote omitted.)

We agree with the Commission. We note further that the record indicates that without lashing there was little protection if a storm or wind came up.

Western also contends it was an abuse of discretion for the Review Commission to sua sponte amend the citation to show a willful violation of the more specific standard at 29 C.F.R. § 1926.451(i)(11) requiring midrails and toeboards instead of the originally cited standard at 29 C.F.R. § 1926.451(a) (4) which required only toeboards. The evidence clearly shows that Western made a conscious decision not to use toeboards and therefore was in willful violation of the originally cited standard requiring toeboards. However, the Commission's amendment of the citation to allege a violation of the standard requiring midrails is another matter.

During the hearing before the administrative law judge at the time the Secretary offered evidence concerning the absence of midrails on the scaffolding, counsel for the Secretary stated:

As I say, I'm offering the evidence on midrails to just show the issue of willfulness generally. I am not attempting to show a violation of the standard (29 C.F.R. § 1926.451(i)(11)) since it wasn't alleged.

In view of the Secretary's statement that no attempt was being made to show a violation of the midrail standard, we agree that the Commission erred in amending the citation during the review proceedings. We have recognized that in a proper case both the citation and the proposed penalty may be...