United States Court of Appeals,
Fifth Circuit.
No. 93-4913.
PETERSON BROTHERS STEEL ERECTION COMPANY, Petitioner,
v.
Robert B. REICH, Secretary of Labor and Occupational Safety and Health Review Commission, Respondents.
July 21, 1994.
Petition for Review of an Order of the Occupational Safety and Health Review Commission.
Before GARWOOD and EMILIO M. GARZA, Circuit Judges, and HEAD*, District Judge.
HAYDEN W. HEAD, Jr., District Judge:
Peterson Brothers Steel Erection Company ("Peterson Brothers")
petitions for review from a final order of the Occupational Safety
and Health Review Commission (the "Commission") affirming a
citation issued under the Occupational Safety and Health Act, 29
U.S.C. § 651 et seq. This Court has jurisdiction pursuant to 29
U.S.C. § 660(a).
The citation was issued for a violation of 29 C.F.R. §
1926.105(a) after a Peterson Brothers employee, a "connector," was
killed from a fall on the job.1 Peterson Brothers was hired to
* District Judge of the Southern District of Texas sitting by designation. 1 29 C.F.R. § 1926.105(a) provides:
Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.
1 erect the structural steel framework for a seven-building IBM
complex in Austin, Texas in July, 1990. The construction was
performed two stories at a time. Connectors would install the
upright columns first. Crane operators would then raise the
horizontal beams for both floors being constructed in a Christmas
tree formation and hold them in position to be attached.
Connectors would temporarily secure each beam with two bolts.
Other employees, called "bolters," then followed to install the
remainder of the bolts.
Though the connectors wore safety belts while they worked,
they did not attach any safety lines, or lanyards, to their belts
in order to maintain the necessary mobility to perform their jobs.
The bolters used safety belts and lanyards to secure themselves to
the beams while they worked. After the bolts were tightened,
temporary floors were installed on every other level to protect
employees from falling into the interior of the structure. In
addition, a cable was installed around the edge of the floor to
protect the employees from perimeter falls. However, Peterson
Brothers did not install safety nets on the outside of the building
to protect against falls to the outside of the building.
Accordingly, all employees were protected against falling while
they worked, except the connectors were not protected from an
exterior fall.
During the process of securing the horizontal beams, a beam
suspended from a crane fell a short distance. Kevin Dean, one of
the connectors, was straddling a beam at the perimeter of the
2 building when the beam struck him. The beam knocked Dean from his
perch, and he fell 70 feet to the ground. After the accident, a
compliance officer conducted an investigation. As a result of the
investigation, a serious citation was issued to Peterson Brothers
for failing to install safety nets to protect connectors working on
perimeter beams as required by 29 C.F.R. § 1926.105(a).
Peterson Brothers contested the citation. After a hearing, an
administrative law judge found Peterson Brothers committed a
serious violation of § 1926.105(a), and affirmed the citation. On
April 27, 1993, the Commission affirmed the administrative law
judge's finding and assessed a penalty of $400.00. The Commission
held (1) Peterson Brothers had fair notice that § 1926.105(a)
applied to the steel erection industry, (2) the prima facie
requirements for establishing a violation of § 1926.105(a) were
satisfied, and (3) the use of safety nets was not infeasible due
either to impossibility of compliance or to the economic
infeasibility of using nets. On June 10, 1993, Peterson Brothers
petitioned this Court for review of the Commission's order and
challenges here each holding of the Commission.
I. Whether the Application of § 1926.105(a) Violated Peterson Brothers' Due Process Rights
Peterson Brothers contends it had no notice that it was
required to install safety nets, and thus a citation based on a
failure to do so violates the company's due process rights. The
citation against Peterson Brothers would violate "the due process
clause of the [F]ifth [A]mendment if a reasonable employer in
[Peterson Brothers'] position would not have known that section
3 1926.105(a) required it to install safety nets." Corbesco, Inc. v.
Dole, 926 F.2d 422, 427 (5th Cir.1991). In other words, the
Secretary of Labor must prove that the company had actual or
constructive notice that § 1926.105(a) required it to install
safety nets. Id. The wording of a regulation establishing
"explicit, unambiguous safety precautions that employers must take
in specific situations" would satisfy the "reasonableness" test
without requiring the consideration of additional factors. Id.
(citing Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretary
of Labor, 674 F.2d 1177, 1186-87 (7th Cir.1982)). However, if the
language is not specific enough, other sources, such as industry
custom and practice, the injury rate for that particular type of
construction work, the obviousness of the hazard, and the
interpretation of the regulation by the Commission, may provide
adequate constructive notice. Id. (citations omitted).
The Secretary argues Peterson Brothers had adequate notice of
the safety net requirement. The Secretary points to Peterson
Brothers' contention that prior to the inspection in this case, it
read, and was familiar with, the decision in Peterson Brothers
Steel Erection Co., 13 O.S.H.Cas. (BNA) 1936 (Rev. Comm'n J. 1988)
(digest) ("Peterson Brothers I "). In Peterson Brothers I, the
Administrative Law Judge held that only the specific steel erection
standards, embodied in Subpart R of the regulations, applied to the
steel erection industry. In reaching that holding, the
Administrative Law Judge relied on two Commission decisions, which
were reversed on appeal to the Third and Eleventh Circuits. See
4 Brock v. Williams Enters. of Georgia, Inc., 832 F.2d 567, 573 (11th
Cir.1987); Donovan v. Adams Steel Erection, Inc., 766 F.2d 804 (3d
Cir.1985). The Secretary argues that because the Administrative
Law Judge cited that subsequent history of reversal in Peterson
Brothers I, Peterson Brothers had notice the Commission's position
was not reliable. The Secretary also contends that several
appellate cases holding that § 1926.105(a) applies to the steel
erection industry, which pre-dated the OSHA inspection of Peterson
Brothers' worksite, gave further notice that Peterson Brothers
could not reasonably rely upon the Commission's position. See,
e.g., L. R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664
(D.C.Cir.1982); Donovan v. Daniel Marr & Son, 763 F.2d 477 (1st
Cir.1985).
Peterson Brothers relies heavily on the Fifth Circuit's
decision in Corbesco to support its argument that a reasonable
employer in the steel erection industry would not have known it was
required to install safety nets pursuant to § 1926.105(a). In that
case, one of Corbesco's employees was blown off the flat roof of an
aircraft hangar and killed. As a result of the accident, the
compliance officer cited Corbesco for failing to install safety
nets. Corbesco contested the citation, arguing § 1926.105(a), as
a general regulation, "fails to give an employer notice that it
must use a safety net when its employees are working on the flat
roof of a large building, like an aircraft" hangar. Corbesco, 926
F.2d at 424. The Fifth Circuit expressed doubts as to whether the
wording of § 1926.105(a) is specific enough to give notice of its
5 requirements on its own. Corbesco, 926 F.2d at 428. However, the
Court ultimately held Corbesco had constructive notice of the
requirement to use safety nets because of other circumstances in
the case. Specifically, the Court held the Commission's frequent
holdings that the regulation requires an employer to provide a
safety net or one of the other enumerated safety devices in
circumstances like those at issue in Corbesco gave rise to a duty
to at least inquire whether the employer had to install safety
nets. Because the employer had constructive notice of the duties
imposed upon it, its constitutional rights were not violated.
Corbesco does not provide support for Peterson Brothers'
argument that a reasonable employer in the steel erection industry
would not know that § 1926.105(a) applies. The Court did not
address the issue of whether that general standard is preempted by
the specific steel erection industry standards, nor did it address
whether an employer in Peterson Brothers' position had sufficient
notice that § 1926.105(a) applied. In fact, the applicability of
§ 1926.105(a) was not in issue in Corbesco—the Court addressed only
whether § 1926.105(a), when applicable, gave adequate notice that
safety nets were required when working on a flat roof.
Peterson Brothers argues the following factors would lead a
reasonable employer to believe the installation of safety nets was
not necessary. First, until several months after the accident at
issue, the Commission maintained the position that the specific
steel erection standards were the only ones applicable to the steel
erection industry, see Secretary of Labor v. Bratton Corp., 1990 WL
6 201595 (O.S.H.R.C.1990), and that the general construction industry
standards were preempted by those specific standards. Second, the
industry custom was not to use perimeter safety nets and Peterson
Brothers was never cited for failing to use the nets, nor for
violating § 1926.105(a). Third, no connector working for Peterson
Brothers had ever fallen to the perimeter of a building being
erected. Finally, Peterson Brothers contends the Secretary
selectively enforced the standard, thus making it less likely a
reasonable employer would know of its applicability.
Though we acknowledge that, at the time the citation was
issued to Peterson Brothers, the Commission's position was unclear
as to whether the specific steel erection standards preempted the
general construction industry standards, we hold that other
surrounding circumstances gave Peterson Brothers adequate notice
that § 1926.105(a) applied. First, by the time the citation was
issued, several circuit courts had addressed the issue, holding
that the specific steel erection standards do not preempt the
general construction standards where the steel erection standards
provide no protection. See, e.g., L. R. Willson & Sons, Inc. v.
Donovan, 685 F.2d 664 (D.C.Cir.1982) (§ 1926.750(b)(1)(ii), the
specific steel erection standard, does not preempt § 1026.105(a),
the general construction industry standard, because §
.750(b)(1)(ii) specifies only measures for interior fall
protection; § .105(a) provides the only standard for exterior fall
protection); Bristol Steel & Iron Works, Inc. v. Occupational
Safety and Health Review Commission, 601 F.2d 717, 721 (4th
7 Cir.1979) ("The general safety standard dealing with personal
protective equipment found in 29 C.F.R. § 1926.28(a) complements
the Subpart R specific standards dealing with steel erection ...");
Brock v. Williams Enterprises of Georgia, Inc., 832 F.2d 567, 571
(11th Cir.1987) (because "Subpart R is not specifically applicable
to exterior falls from perimeter beams, it does not preempt Section
1926.105(a). Therefore, Section 1926.105(a) applies to the steel
erector industry"); Donovan v. Adams Steel Erection, Inc., 766
F.2d 804, 807-10 (3d Cir.1985) (the steel erection standards do not
deal with the particular hazard of an exterior fall from a
perimeter beam; accordingly, the specific standards do not preempt
the general requirement of safety nets found in § 1926.105(a)).
Second, as the Secretary pointed out, the opinion in Peterson
Brothers I should have put Peterson Brothers on notice that the
Commission's rulings in Williams Enterprises of Georgia and Adams
Steel Erection had been reversed. Finally, in 1981, the Fifth
Circuit applied § 1926.105(a)'s safety nets requirement to the
steel erection industry. See Cleveland Consolidated, Inc. v.
Occupational Safety and Health Review Commission, 649 F.2d 1160
(5th Cir. Unit B July, 1981). Accordingly, a reasonable employer
in the steel erection industry would have had adequate notice that
§ 1926.105(a) applied to the steel erection industry, and the
citation based on a violation of that regulation does not violate
Peterson Brothers' due process rights.
II. Whether 29 C.F.R. § 1926.105(a) Was Violated in This Case
Peterson Brothers argues substantial evidence does not
8 support a finding of a violation of § 1926.105(a) in this case.
Section 1926.105(a) provides:
Safety nets shall be provided when work places are more than twenty-five feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are impractical.
Because the company used safety belts and temporary flooring,
Peterson Brothers contends, safety nets are not required. The
company cites as support Brennan v. Occupational Safety and Health
Review Commission, 488 F.2d 337 (5th Cir.1973) and Brennan v.
Occupational Safety and Health Review Commission, 513 F.2d 713 (8th
Cir.1975).
The company misses the point of the citation. The citation
was directed at the hazard of an exterior fall facing connectors
working on perimeter beams. Though it is true that Peterson
Brothers installed temporary flooring and perimeter railing, and
that some employees used safety belts, the connectors preferred not
to use, and did not use, their safety belts with lanyards in order
to maintain their mobility. Transcript from O.S.H.R.C. hearing at
86. The company was aware of this preference and did not require
the connectors to use their belts, nor did the company use exterior
nets. Finally, one of the company's own witnesses, Bill Landfair,
testified that the connectors had no protection from exterior falls
while working on beams at the perimeter of the building.
Transcript at 127. Accordingly, the record clearly demonstrates
the company provided no protection against exterior falls for the
connectors. These facts establish a violation of § 1926.105(a).
9 See Williams Enterprises of Georgia, 832 F.2d at 572-73; see also
Marshall v. Southwestern Industrial Contractors and Riggers, Inc.,
576 F.2d 42, 45 (5th Cir.1978) ("Where the safety belts were not
"used' in any meaningful sense for a substantial portion of the
workday, and the employees were afforded no protection from a
dangerous fall, we are compelled by our holding in Southwestern
Contractors to defer to the Secretary's reasonable interpretation
that [§ 1926.105(a) ] requires the use of some means of reasonably
continuous fall protection").
Further, neither case cited by Peterson Brothers supports the
company's contention that its use of temporary floors and safety
belts by other employees provided the necessary protection from
exterior falls for the connectors. In Brennan v. Occupational
Safety and Health Review Commission, 488 F.2d 337 (5th Cir.1973),
the Fifth Circuit held § 1926.105(a) was not violated, despite the
failure to use safety nets, when a welder was working on a mobile
scaffold, and a hoist operator was attached to the hoist by a rope
tied around his waist. Clearly, that case does not support
Peterson Brothers' argument because the company in Brennan used
other safety measures listed as alternatives to safety nets in the
regulation to protect against the danger at issue in the citation.
In Brennan v. Occupational Safety and Health Review Commission, 513
F.2d 713 (8th Cir.1975), the Commission held the employees, who
were working on the roof and on scaffolding, were working on
temporary flooring and scaffolding within the terms of §
1926.105(a), and no safety nets were required. The Eighth Circuit
10 affirmed that interpretation as reasonable. Again, the employer
provided other safety devices enumerated in the regulation for the
employees at issue, thus making safety nets unnecessary under the
terms of the regulation. Both cases are distinguishable from the
facts at hand because the evidence clearly shows that Peterson
Brothers provided no alternative safety devices for the connectors.
The record contained sufficient evidence to hold Peterson Brothers
violated 29 C.F.R. § 1926.105(a).
III. Whether Peterson Brothers Established the Defense of Infeasibility of Compliance
Peterson Brothers argues the evidence raised the defenses of
impossibility and economic infeasibility. The Secretary argues the
Commission's ruling that Peterson Brothers failed to prove a valid
affirmative defense is supported by the record and the applicable
caselaw. We may reverse the Commission's decision only if its
conclusions are "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." Corbesco, 926 F.2d at 425
(citations omitted).
At the hearing before the administrative law judge, Peterson
Brothers introduced evidence that it would be technically
impossible to comply with the requirement that the nets be no more
than 25 feet below the work area. Specifically, an expert witness,
the former president of another large steel erection company,
testified that it would be impossible to erect the nets within two
stories of where the employees are working because the nets must be
supported from two stories above the nets. Because the connectors
were just beginning the construction on the level where the
11 supports would be attached, he testified, there would be nothing to
which the supports could be attached in order to protect the
connectors while they worked. Accordingly, the nets cannot be
erected closer than three stories below where the connectors
worked.
A compliance officer testified that because personnel safety
nets would not need to be as large as material nets used to catch
debris, personnel nets would not require the same amount of
support. The supports for personnel nets could be welded to the
edge of the temporary floor and extend straight out from that level
without support from above.
The Commission acknowledged that the testimony of those two
witnesses created a fact dispute as to whether it was impossible
for Peterson Brothers to comply with the requirement that the nets
be within 25 feet of where the connectors were working. However,
the Commission declined to resolve the issue because "Peterson
Brothers must comply to the extent it can even if complete
compliance is not possible." Commission Decision at 14 (citations
omitted). That conclusion is supported by the caselaw: "A
technical defense, where some means of protection is available, is
not an excuse for disregarding safety precautions. The Secretary's
view, shared by the Commission, requires limited compliance where
it furnishes some protection, even if exact compliance is not
possible." Cleveland Consolidated, Inc. v. O.S.H.R.C., 649 F.2d
1160, 1167 (5th Cir.1981). According to even Peterson Brothers'
position, it would have been possible to erect nets three stories
12 below where the connectors were working, thus affording them some
protection from exterior falls. The Commission's conclusion that
Peterson Brothers did not establish the defense of technical
impossibility was not an abuse of discretion.
Peterson Brothers also introduced evidence that it would be
economically infeasible to use perimeter safety nets.
Specifically, Peterson Brothers' president testified that using
perimeter nets would have greatly increased the cost of performing
the steel erection. He testified to an inexact estimate of what
nets would have cost on this steel erection. Despite the fact that
the sum was substantial, he testified his company had the resources
to absorb the costs on this project if required to do so. However,
he testified to his concern that the company would lose future
business because he would have to increase his bids to incorporate
the costs of using the nets, and his competitors, who do not use
the nets, would not have to increase their bids accordingly.
A standard is economically infeasible where "increased costs
would make the proposed substitute technology impracticable." A.
E. Burgess Leather Co. v. Occupational Safety & Health Review
Commission, 576 F.2d 948, 951 n. 2 (1st Cir.1978) (citing
Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 477
(D.C.Cir.1974)). The president of the company testified that
Peterson Brothers could have absorbed the costs on the project in
question. The company did not, however, introduce evidence of the
effect the use of the nets would have on the existence of the
company other than the assertion that the company could not
13 maintain competitive bidding because of the non-compliance of other
companies. An employer cannot be excused from non-compliance on
the assumption that everyone else will ignore the law. A. E.
Burgess Leather Co. v. Occupational Safety & Health Review
Commission, No. 12501, 1977 WL 6961, at *3 n. 2 (O.S.H.R.C. Feb.
24, 1977), aff'd, 576 F.2d 948 (1st Cir.1978). The Commission's
conclusion that Peterson Brothers did not present sufficient
evidence to find the installation of nets to be economically
infeasible is not an abuse of discretion.
Accordingly, the decision of the Occupational Safety and
Health Review Commission is AFFIRMED.