Phoenix Roofing, Inc. v. Elizabeth Dole, Secretary of Labor, and Occupational Safety and Health Administration

874 F.2d 1027, 1989 CCH OSHD 28,571, 14 OSHC (BNA) 1036, 1989 U.S. App. LEXIS 8310, 1989 WL 53805

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 9, 1989
• Docket: 88-4492
• Status: Published

Opinions

JERRY E. SMITH, Circuit Judge:

The petitioner in this case contests a citation issued by the Occupational Safety and Health Administration (OSHA) for an asserted violation of certain safety regulations. Our task is twofold: On the one hand, we must determine at what point the zealous enforcement of administrative employee safety regulations becomes hyper-technical and counterproductive in light of employer compliance with the purposes of the regulations; on the other hand, we must circumscribe carefully the extent to which employers may disregard the regulations and make their own safety evaluations without facing serious penalties.

I.Factual and Procedural Background.

The determinative facts in this case are not complicated. Petitioner Phoenix Roofing, Inc. (“Phoenix”), was reroofing a building at Dallas’s Love Field Airport at the time the citation was issued. The roof measured 350 feet by 150 feet. However, work was performed to completion on sections measuring only 24 feet by 32 feet. Each section was subjected to a three-phase process.

There is no dispute that Phoenix complied with all appropriate regulations through the first and most of the second phases of work on the section in question. However, OSHA contends that Phoenix failed to meet fall-protection requirements near the completion of the second phase and during the third phase.

Phoenix admits that it was in technical noncompliance with the regulations during the third stage because of its use of monitors as the sole safety device. It contends, however, that the employment of any of the conforming methods at this point was either infeasible or would have created additional dangers because the work involved the pouring of hot asphalt. Phoenix also denies that there was sufficient evidence indicating a violation during phase two.

OSHA cited Phoenix for its use of monitors as an exclusive safety device, pursuant to 29 C.F.R. § 1926.500(g)(1), (3). The citation was issued after OSHA’s compliance officer had observed, for about one-half hour, six Phoenix employees working near the edge of the roof.¹ Phoenix contested the citation before an administrative law judge (AU), who dismissed the charge that was issued under section 1926.500(g)(3) but upheld the one issued under section 1926.-500(g)(1). Following proper administrative procedures, Phoenix then petitioned the Occupational Safety and Health Review Commission (OSHRC) for review of the AU’s decision; review was denied because OSHRC did not have a quorum at that time. This petition followed.

II.Standard of Review.

We must uphold the AU’s findings of fact if they are “supported by substantial evidence on the record considered as a whole.” 29 U.S.C. § 660(a). Fred Wilson Drilling Co. v. Marshall, 624 F.2d 38, 40 (5th Cir.1980). Substantial evidence means “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 232 (5th Cir.1974) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951)). We will not reweigh the evidence or independently evaluate evi-dentiary conflicts. Irwin Steel Erectors, Inc. v. OSHRC, 574 F.2d 222, 223-24 (5th Cir.1978) (per curiam).

In interpreting administrative statutes and regulations, we accord great deference to those officers and bodies charged with their administration. Brock v. Schwarz-Jordan, Inc., 777 F.2d 195, 196 (5th Cir.1985) (per curiam). Ordinarily, we will reverse on such matters only upon finding a plain error or an inconsistency with the regulation’s purpose. United Steelworkers of Am. v. Schuylkill Metals Corp., 828 F.2d 314, 319 (5th Cir.1987) (citing Udall v. Tollman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-02, 13 L.Ed.2d 616 (1965)).

III.Violation of 29 C.F.R. § 1926.500(g)(1).

In order to comply with 29 C.F.R. § 1926.500(g)(1), when working on a roof more than 50 feet in width, an employer must use either (i) a motion-stopping device, such as safety nets or guardrails, at the edge of the roof, or (ii) a warning line which an employee will bump into when he or she is within 6 feet of the edge of the roof.² At the time the instant citation was issued, Phoenix admits that it was working on a roof more than 50 feet in total width without employing either type of approved safety measure. Instead, it was using a monitor system whereby two experienced employees had as their sole responsibility the duty to watch those working on the roof and to warn them if they approached the edge.

Under the regulations, such a safety system is acceptable as an exclusive safety measure only as to work on a roof less than 50 feet in total width. 29 C.F.R. § 1926.500(g)(l)(iii). On wider roofs, the visual difficulties in monitoring, and the problem of hearing far-away monitors, are thought by the agency to be too great for this method to be effective. See 29 C.F.R. § 1926.502(p)(7); 45 Fed.Reg. 75,621 (Nov. 14, 1980).

Phoenix acknowledges this consideration but argues that it constructively complied with the requirements in that the roof section it was working on was without question less than 50 feet wide, so that workers were never spread over an area of more than 50 feet. Moreover, Phoenix maintains, apparently without contradiction from OSHA, that it was physically impracticable or impermissible under Federal Aviation Administration regulations to use any of OSHA’s approved methods during phase three because of the characteristics of the building and the type of work being performed.³

Finally, Phoenix reminds us that safety monitors are a permissible form of protection for employees working within 6 feet of the edge where only a warning line is in place. Here, the citation was issued based upon the compliance officer’s observation of employees working 4 feet from the edge.⁴ Thus, even though there was no warning line, the monitors provided at least the same protection which the workers in question would have received if there had been a warning line in place.⁵ In fact, Phoenix’s system likely provided greater protection, since Phoenix assigned at least two employees to monitor a work area for which the regulations would require only one.⁶

While it is evident that Phoenix was in compliance with the spirit of the regulations, and that the safety measures taken equaled or exceeded the protections afforded by the approved methods, we nevertheless cannot reverse on such a basis.⁷ This is because as a matter of undisputed fact, Phoenix’s actions did violate OSHA’s interpretation of the regulation that the entire roof, rather than the effective work area, must be measured in determining the applicability of the 50-foot convention.

Moreover, under the above standard of review, we are not free to overrule this plain-meaning interpretation and substitute our own. See Austin Commercial v. OSHRC, 610 F.2d 200, 201 (5th Cir.1979) (per curiam); Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir.1976). Section 1926.500(g)(1)(iii) explicitly provides that the width of the “roof” controls; section 1926.502(p)(6) defines “roof” as “the exterior surface on the top of a building.” Phoenix’s common-sense argument that “work area” width should control simply cannot be sustained once OSHA has chosen to issue citations based upon the literal wording of the regulation.

It would also be improvident for us to overrule OSHA’s interpretation of its regulations, for to do so would send employers the message that they could ignore the obvious mandates of the safety regulations and independently determine what, if any, measures should be undertaken in a given situation. In this case, we are satisfied that the measures taken provided protection equal to or greater than those required by regulation.⁸ In its brief on appeal, OSHA does not appear to contend otherwise. However, under our settled precedent, “an employer must follow the law even if it has a good faith belief that its own policy is wiser.” RSR Corp. v. Brock, 764 F.2d 355, 363 (5th Cir.1985).

IV. De Minimis Classification.

A violation of the Occupational Safety and Health Act of 1970 (the “Act”) is designated as serious, not serious, or de minim-is. See Brennan v. Butler Lime & Cement Co., 520 F.2d 1011, 1019 n. 10 (7th Cir.1975). “Absent ... a direct, immediate nexus between noncompliance and employee safety or health, a violation of an OSHA standard may be classified as de minim-is_ The consequence of [such] a determination ... is that, though a violation has [technically] occurred, abatement is unnecessary and no penalty is imposed.” Donovan v. Daniel Const. Co., 692 F.2d 818, 821 (1st Cir.1982) (citations omitted). See also Keco Industries, Inc., 11 O.S.H.Cas. (BNA) 1832, 1834 (Rev. Comm’n 1984).

Despite Phoenix’s convincing argument that its violation was purely technical at worst and created no additional safety risk, the AU found it to be “serious” and deserving of penalties. Phoenix concedes that a de minimis citation, rather than no citation at all, may have been appropriate but asserts that the “serious” designation is uncalled for here. We agree with Phoenix and reverse the agency’s determination, based upon our conclusion that the AU applied an improper legal analysis.

There are, conceptually, at least three circumstances under which a violation may be considered de minimis: (1) Where no injury will result, or any injury will be minor;⁹ (2) where the possibility of injury is remote;¹⁰ or (3) where there is no significant difference between the protection provided by the employer and that which would be afforded by technical compliance with the standard.¹¹

In this case, we need consider only the third type of de minimis classification. The compliance officer acknowledged that Phoenix’s use of monitors, given the less-than-50-foot-wide work area, at least equaled the protection that would have been provided by using warning lines in compliance with the standard. Moreover, as discussed supra, the citation was based only upon the compliance officer’s observation of employees working near the edge of the roof who, under the regulations, could have been protected by monitors. The additional presence of a warning line would be only for the protection of employees working further from the perimeter. The AU nonetheless denied de minimis classification, based upon the likely seriousness of an injury caused by any fall.

We have no doubt that such an injury indeed would be serious or fatal. However, it would still be exactly the same type of injury that would occur with equal or greater frequency using warning lines. Here, the protections which Phoenix employed provided safety equal to or greater than that imposed by regulation. Accordingly, we conclude that a de minimis classification is not only appropriate but required as a matter of law by OSHA’s own precedent.

To affirm the denial of a de minimis classification in this case would prevent the use of such a designation in any case in which serious injury is possible, regardless of whether compliance with standards would fail to provide better protection.¹² The de minimis category thus would effectively be limited to such situations as those involving the improper filing of forms. See Anoplate Corp., 12 O.S.H. Cas. (BNA) at 1688. Consequently, the vast majority of cases would call for penalties even if workers were not significantly more endangered. Under such a standard, employers such as Phoenix, who are scrupulously concerned with their employees’ safety, would be treated the same as those who flagrantly ignore safety measures altogether.¹³ At oral argument, OSHA’s counsel admitted that this was the direct implication of its position. There is simply no precedent or policy basis supporting such a result.

In Clifford B. Hannay & Son, Inc., 6 O.S.H.Cas. (BNA) at 1337-38, OSHRC held that a violation was de minimis despite the possibility of an explosion causing serious injury or death. The basis for that conclusion was that the electrical equipment used by the employer provided as much protection as technical compliance with the standard would have. Likewise, in Charles H. Tompkins Co., OSHRC reviewed a violation where the potential danger presented was a thirty-foot fall that obviously could cause serious injury or death. Concluding that “climbing safety was not appreciably diminished by the additional distance between the rungs” of a scaffold buck as compared to a ladder, OSHRC found the violation to be de minimis. 6 O.S.H.Cas. (BNA) at 1047 (emphasis added).¹⁴

Given the admissions made by the compliance officer and the fact that the citation was based upon that officer’s observation of employees working near the edge of the roof, we find the instant case to be indistinguishable from Hannay and Tompkins and their progeny. Accordingly, we reverse the denial of the de minimis classification and hold that Phoenix’s violation is de minimis as a matter of law, as it did not “appreciably diminish ” the workers’ safety and in fact probably enhanced it.¹⁵

OSHA argues forcefully that RSR Corp. v. Brock and Bunge Corp. v. Secretary of Labor are to the contrary. We cannot agree. In RSR we emphasized that employers are not free to make independent safety determinations. 764 F.2d at 363. However, our analysis there went only to the existence of a violation, rather than to whether an acknowledged violation should be characterized as de minimis or serious. These are two separate issues that are not, and should not be, subject to the same considerations. To say that an employer commits a violation when it knowingly contravenes regulations, regardless of a good-faith belief that it is adequately protecting its employees’ interests, is hardly surprising. However, to extend such reasoning to suggest that employers always commit serious violations when they deviate from the black letter of the regulations, even where the alternative protections equal or exceed those mandated by law, is quite another thing. The latter rule would eviscerate the de minimis category and could even prevent certain jobs from being performed where, as here, strict technical compliance is infeasible even though non-conforming measures might easily assure safety.¹⁶

We are similarly unpersuaded that Bunge applies to this case. There, we considered the issue of grain-dust accumulations, in violation of housekeeping regulations, that presented the hazard of a possible explosion. As we have observed, supra note 12, we held this condition to be a serious violation based upon the substantial probability that death or serious injury would result should such an accident occur. In so holding, we emphasized that “the seriousness of the violation depends on the hazard produced by the condition.” 638 F.2d at 834. In that case, absent the violation there was no hazard at all, as the employer had not undertaken any alternative safety measures. Thus, the condition without question produced the hazard.

The instant case is patently distinguishable. Here, the condition in violation of the regulations did not produce any additional hazard — a requirement that is implicit in the above language from Bunge — and therefore should not have been considered a serious violation. Bunge stands only for the proposition that where a condition creates a hazard that may cause death or serious injury, a “serious” designation is warranted even if the possibility of such injury is remote; but, where, as in this case, the condition cannot be said to have created an additional hazard, the Bunge logic does not apply.¹⁷

V. Conclusion.

For the aforementioned reasons, the petition for review is denied as to the finding of a violation but granted as to the de minimis classification and the imposition of penalties. This may very well be a case in which OSHA, in its discretion, should not have issued a citation. Under the facts presented here, where the company has acted in good faith to achieve the purpose of the regulations — to ensure workers’ safety — enforcement at more than a de minimis level arguably would constitute what we have denounced, in a different context, as “regulation ad absurdum.” American Petroleum Inst. v. Environmental Protection Agency, 787 F.2d 965, 972-73 (5th Cir.1986). In fact, the de min-imis category appears particularly well-tailored to circumstances such as this. But while we emphasize the pointlessness of overzealous, hypertechnical enforcement of OSHA standards, we also stop far short of suggesting to employers that they are free to disregard regulations and make their own safety evaluations. Under only limited circumstances, such as those here, may an employer fail to comply with safety regulations and avoid the consequent penalties.

AFFIRMED IN PART; REVERSED IN PART.

1 . The citation stated that the employees were working 4 feet from the edge.

2 . Where a warning line system is in place, employees working outside the line must be protected through use of either safety monitors or motion-stopping devices. 29 C.F.R. § 1926.500(g)(l)(ii).

3 . OSHA does contend, however, that the citation was issued at the end of phase two and that motion-stopping devices could have been used, since asphalt was not yet being poured so as to make this method too dangerous.

4 . In his able dissent, Judge Garwood apparently agrees that a de minimis classification is mandated as a matter of law if the measures employed provide protection equal to or greater than that required by regulation. He takes issue only with the conclusion that such was the case here. His belief that the monitors did not provide equivalent protection is premised upon two misinterpretations of the circumstances present here.

The dissent first accepts as conclusive the compliance officer’s testimony that, in theory, monitors alone can never provide protection equivalent to a warning line system (for workers inside the line) because they always present some possibility, however remote, of human error. However, treating such testimony as precluding any finding that monitors do not provide equivalent protection is, at best, a doubtful proposition.

Taken in the context in which it was uttered, this testimony amounts to no more than the compliance officer’s musing about an abstract possibility which she herself obviously did not consider important to the case. When pressed by Phoenix’s counsel to make a realistic safety comparison, she readily admitted that monitors were at least equal to warning lines. Moreover, as previously discussed, the ALJ did not make any finding, either directly or indirectly, based upon this testimony; instead, his holding rested entirely upon an interpretation of the statute that would preclude a de minimis classification even where equal or greater safety is assured by non-complying measures. This is the identical position urged by OSHA’s counsel at oral argument.

Nevertheless, even assuming, arguendo, that we could not determine conclusively, from the record before us, that use of the monitors guaranteed safety equal or greater to warning lines for those workers working inside the line, our holding is still unaffected since, as discussed repeatedly above, the citation was issued after observing only employees working near the edge of the roof. As to these employees, Judge Garwood concedes that our analysis is correct. However, even though the compliance officer only observed workers who would have been outside of any warning line, and though there is no record indication of anyone working within the area whom such a line could possibly protect, the dissent asserts that it is still reasonable to infer the presence of such workers in the absence of Phoenix’s proof to the contrary. We cannot agree.

The dissent would require a cited party affirmatively to disprove any hypothecated set of facts which an appellate court might assume to have existed at the time of the citation, regardless of any record support. But such an approach overlooks the enforcement scenario employed by OSHA: A compliance officer visits a workplace, observes a violation and reports on it, and a citation is issued. Hence, this case involves what the compliance officer saw, not what she did not see.

5 . This is because these workers, being already outside the 6-foot line, of course would receive no benefit from such a warning line located 6 feet from the edge.

6 . The regulations require 1 monitor every 50 feet. See 29 C.F.R. § 1926.500(g)(l)(iii). Phoenix was using at least 2 monitors within a 32-foot area, equivalent to 1 monitor every 16 feet. Hence, it actually had more than 3 times as many monitors (50/16 = 3.1) as the agency mandates.

7 . OSHA’s only suggestion that warning lines may have provided better protection is based upon the compliance officer’s testimony that there is always a possibility of human error using just monitors. However, the ALJ impliedly rejected this contention in relying exclusively upon a plain-meaning interpretation of ise regulations without regard for any possible safety differentials.

In any event, we note that this testimony is irrelevant, as the instant citations were issued based upon the compliance officer’s observation of employees working near the edge of the roof, for whom a warning line could offer no protection. As discussed supra, these workers could have, and would have, been protected by monitors even if a warning line were in place to protect other employees who were more than 6 feet from the edge. Hence, in theory the remote possibility of human error would have been at least equal in both cases. In reality, the possibility of human error was undoubtedly reduced by Phoenix’s use of at least 2 monitors. See supra note 6.

8 .Moreover, this is not a case in which an employer has "cut corners” in its compliance efforts: It is reasonable to assume that the use of monitors was at least as expensive as the mandated alternative measures for which the agency argues.

9 . See Anoplate Corp., 12 O.S.H.Cas. (BNA) 1678, 1688 (Rev.Comm’n 1986); Kenneth P. Thompson Co., 8 O.S.H.Cas. (BNA) 1696, 1703 (Rev.Comm’n 1980).

10 . See Keco Industries, Inc., 11 O.S.H.Cas. (BNA) at 1835; Hood Sailmakers, Inc., 6 O.S.H.Cas. (BNA) 1206, 1208 (Rev.Comm’n 1977).

11 . E.g., Clifford B. Hannay & Son, Inc., 6 O.S.H. Cas. (BNA) 1335, 1337-38 (Rev.Comm'n 1978); Charles H. Tompkins Co., 6 O.S.H.Cas. (BNA) 1045, 1047 (Rev.Comm’n 1977).

12 . We reject OSHA’s argument that § 17(k) of the Act, 29 U.S.C. 666(k), which states that “a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result” from a working condition, requires a finding that the instant violation is serious. Under our precedent, "substantial probability” relates to the likelihood of death or serious injury if an accident occurs rather than to the likelihood that the accident will happen in the first place. See Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 325 n. 12 (5th Cir.1984); East Tex. Motor Freight, Inc. v. OSHRC, 671 F.2d 845, 849 (5th Cir.1982) (per curiam); Bunge Corp. v. Secretary of Labor, 638 F.2d 831, 834 (5th Cir. Unit A Mar. 1981); Shaw Constr., Inc. v. OSHRC, 534 F.2d 1183, 1185 n. 4 (5th Cir.1976). However, even though under this precedent Phoenix’s violation arguably meets the "substantial probability” criterion (since if an accident occurred death or serious injury would be likely), we do not conclude that this alone mandates a “serious” designation.

Implicit in the statutory language and in our cases, and explicit in OSHRC’s own precedent, discussed infra, is the requirement that an employer’s violations must have created a greater likelihood of death or injury causing accidents than compliance would have, not merely that such accidents are possible because of the type of work being performed. None of the above cases involved any effective alternative employer safety measures. Instead, the employers relied exclusively upon the argument that, although an injury-causing accident was possible because of the violation, it was not probable. Where, as here, an injury would be equally or more probable had the employer complied, a designation of the violation as "serious” is not required and in fact makes no sense.

13 . There is no question that Phoenix demonstrated such concern in this case. It complied with the letter of the regulations whenever reasonably possible; and as we have noted, it was employing more safety monitors than the regulations mandated. We have noted, supra, that the cost of employing two workers to do nothing but monitor during phase three operations cannot have been minor for a small contractor such as Phoenix and may well have exceeded the cost of using various complying safety devices.

14 . Accord, Triple ‘A"South, 9 O.S.H.Cas. (BNA) 1542 (Rev.Comm’n 1981); Kenneth P. Thompson Co., 8 O.S.H.Cas. (BNA) at 1703; Leiser Painting & Decorating, Inc., 8 O.S.H.Cas. (BNA) 1743 (Rev.Comm'n 1980) (ALJ op.); Rodney E. Fossett, 1979 O.S.H.Dec. (CCH) ¶ 23,989 (Rev. Comm’n 1979); Buccola Masonry, Inc., 6 O.S.H. Cas. (BNA) 2060 (Rev.Comm’n 1978) (ALJ op.); Power Systems, Inc., 1978 O.S.H.Dec. (CCH) ¶ 23,079 (Rev.Comm’n 1978) (ALJ op.); Ray Boyd Plaster & Tile, Inc., 6 O.S.H.Cas. (BNA) 1648 (Rev.Comm’n 1978); Triple “A" South, 1978 O.S.H.Dec. (CCH) ¶ 22,878 (Rev. Comm’n 1978) (ALJ op.); Otis Elevator Co., 6 O.S.H.Cas. (BNA) 1555 (Rev.Comm’n 1978); Southwestern Indus. Contractors & Riggers, Inc., 1978 O.S.H. Dec. (CCH) ¶ 22,606 (Rev.Comm’n 1978) (ALJ op.).

15 .We note that in reaching this conclusion, it is unnecessary to resolve the factual dispute as to which stage of work was in progress when the citation was issued, as resolving that subordinate issue goes only to whether certain motion-stopping devices could have been used. However, even if they could have been used, a de minimis classification nevertheless would be mandated, as the monitors provided protection at least equivalent to warning lines, one of the indisputably complying methods.

16 . We also note that in RSR we considered a situation in which the employer had only a subjective good-faith belief that its alternative measures provided the intended protection, but not one in which the protection actually equaled or exceeded that required by regulation. There, we were "wholly unconvinced by RSR’s claim that the [subject] escrow policy furthered the objectives of the lead standard" involved in that case. Id. Here, as discussed repeatedly, supra, we tire confronted with a situation in which the measures employed without question provided equal or greater protection. For the above reasons, we conclude that RSR is inappo-site to the situation before us.

17 . Additionally, we note that were we to expand our holdings in RSR and Bunge to reach the instant facts, we would necessarily create a conflict with OSHA’s own precedent, discussed supra.