Frank Lill & Son, Inc. v. Secretary of Labor

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 20, 2004 Decided April 6, 2004

No. 03-1096

FRANK LILL & SON, INC.,

PETITIONER

v.

SECRETARY OF LABOR,

RESPONDENT

On Petition for Review of an Order of the

Occupational Safety and Health Review Commission

Paul M. Sansoucy argued the cause for the petitioner.

Michael P. Doyle, Attorney, United States Department of

Labor, argued the cause for the respondent. Allen H. Feld-

man, Associate Solicitor, and Nathaniel I. Spiller, Deputy

Associate Solicitor, United States Department of Labor, were

on brief. Joseph M. Woodward, Attorney, United States

Department of Labor, entered an appearance.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

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Before: HENDERSON, RANDOLPH and GARLAND, Circuit

Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: The Secretary

of Labor (Labor), through the Occupational Safety and

Health Administration (OSHA), cited Frank Lill & Son, Inc.

(Lill) for willful violation of 29 C.F.R. § 1926.501(b)(1) which

requires an employer to provide fall protection where employ-

ees work on a surface with an unprotected edge more than 6

feet above the level below. The Administrative Law Judge

(ALJ) affirmed the citation as serious (rather than willful)

and his decision became the final order of the Occupational

Safety and Health Review Commission (OSHRC, Commis-

sion). Lill petitioned for review of the final order. For the

reasons set forth below, we deny the petition for review.

I.

Lill is in the business of constructing power plants and

process piping installations. In April 2001 Lill began con-

struction of two eighty-foot heat recovery steam generators

(HRSGs) in Newington, New Hampshire under a subcontract

with general contractor Fluor Constructors (Fluor). On Jan-

uary 24, 2002 at about 9:30 a.m. OSHA Compliance Officer

Stephen Rook visited the construction site to conduct a safety

inspection. When he arrived, Rook went to Fluor’s job

trailer and spoke with Fluor safety director Jim Reese, who

accompanied Rook on an inspection of the site.

During his inspection, Rook observed two Lill employees at

HRSG No. 2 ‘‘working at a platform approximately 100 feet

up in the air without fall protection.’’ Tr. 16. He walked to

HRSG No. 2 and began to climb its stairway toward the

workers. While ascending, he encountered Lill site foreman

Bob Brown. According to Rook, he informed Brown he was

‘‘on site for a complaint’’ and had ‘‘observed employees work-

ing without fall protection.’’ Tr. 18. Rook then continued up

the stairs and saw two employees, Real Savoy and Kevin

Gross, ‘‘working at the edge of the platform without fall

protection.’’ Tr. 19. He photographed Savoy. Savoy’s only

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visible protection consisted of a horizontal wire rope, about 18

inches high, at the edge of the platform and ‘‘a ratline or

horizontal lifeline’’ above his shoulder. Tr. 23. Rook spoke

with Savoy and Gross who informed him that working without

fall protection ‘‘was a pattern throughout the worksite or

throughout the HRSGs on days prior, that employees weren’t

always tied off’’ and that ‘‘there isn’t a convenient place to tie

off.’’ Tr. 25. They also told Rook that members of Lill

management ‘‘had been working in the area when employees

weren’t tied off.’’ Id.

A short time later, Rook met with Lill foreman Ron

Tanguay, explained who he was and why he was at the site

and stated he had seen employees working without fall pro-

tection. When asked, Tanguay confirmed that working with-

out fall protection was ‘‘a recurring pattern,’’ Tr. 29, and told

him of an incident 7-10 days earlier when Lill employee Rick

Chamberlain ‘‘had slipped and fallen while walking along the

platform on the HRSG,’’ Tr. 30. After this conversation,

Rook began to climb down the stairs to interview Chamber-

lain. While descending the stairs, Rook observed and photo-

graphed another Lill employee, Steve Drew, working without

fall protection about 75 feet above the ground. Rook pro-

ceeded down the stairs and located Chamberlain. When

asked about his fall, Chamberlain explained he had fallen

toward the edge of the platform from about eight feet in and

had landed about three feet from the edge. He also told

Rook he had not been tied off. After this conversation, Rook

inspected HRSG No. 1 and, although the workers there were

tied off, Lill foreman Dwight Grant informed him ‘‘it was a

frequent occurrence for employees not to be tied off while

working on the HRSG.’’ Tr. 40.

The following day Rook returned to the Newington site and

spoke with three members of Lill management–site manager

Bill Cole, site foreman Brown and site safety representative

Neil Briscoe–and told them of his ‘‘findings the day earlier,

inadequate fall protection which had occurred on the

HRSGs.’’ Tr. 45. He then accompanied them to the top of

HRSG No. 1 and ‘‘explained to them they had three options

that they use according to the minimum OSHA standards, a

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fall protection system, a safety net system or a guardrail

system.’’ Tr. 46. Rook visited the site a third time on

January 28, 2002 and spoke with Briscoe and Cole. Finally,

on February 22, 2002 Rook met with management from all of

the site contractors, including Lill, and discussed his inspec-

tion and the deficiencies he had observed.

On March 8, 2002 OSHA issued a citation to Lill for willful

violation of 29 C.F.R. § 1926.501(b)(1), which provides: ‘‘Each

employee on a walking/working surface (horizontal and verti-

cal surface) with an unprotected side or edge which is 6 feet

(1.8 m) or more above a lower level shall be protected from

falling by the use of guardrail systems, safety net systems, or

personal fall arrest systems.’’ Specifically, the citation al-

leged that Lill employees ‘‘were not adequately protected

from falls of approximately 85 feet while working on HRSG

#2.’’ JA 327. OSHA proposed a penalty of $49,500. Lill

contested the citation and on April 14, 2002 the Secretary

issued a complaint alleging that Lill had violated section

1926.501(b)(1) as described in the citation. Following an

evidentiary hearing, the ALJ issued a decision, docketed

January 9, 2003, which affirmed OSHA’s citation but amended

it from ‘‘willful’’ to ‘‘serious’’ and imposed a $5,000 fine.

Lill filed a petition for discretionary review by the Commis-

sion. When no Commissioner directed review within 30 days

of the ALJ’s decision, that decision became the Commission’s

final order on February 10, 2003. See Notice of Final Order,

OSHRC Docket No. 02-0564 (dated Feb. 11, 2003) (citing 29

C.F.R. §§ 2200.90(d), 661(j)).

Lill filed a timely petition for review on April 3, 2003.

II.

Lill first challenges the substance of the ALJ’s violation

finding and then raises three additional legal arguments. We

address Lill’s contentions in order.

A. The Finding of Violation

First, Lill challenges the ALJ’s finding of a violation on

four grounds: (1) it is contrary to the evidence because the

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wire rope stretched along the platform perimeter qualifies as

a ‘‘guardrail system’’ within the meaning of section

1926.501(b)(1); (2) the interpretation of the statutory term

‘‘guardrail system’’ adopted by the Secretary is unreasonable;

(3) the ALJ erred in finding that anyone other than Gross

and Savoy was exposed to fall hazard and (4) the ALJ erred

in finding Lill had constructive and actual notice of the

violative conditions.

We conclude that the last three challenges have not been

preserved for review because they were not raised in the

petition for discretionary review (PDR) before the Commis-

sion. The Occupational Safety and Health Act expressly

states: ‘‘No objection that has not been urged before the

Commission shall be considered by the court, unless the

failure or neglect to urge such objection shall be excused

because of extraordinary circumstances.’’ 29 U.S.C. § 660(a).

Because of this statutory prohibition, ‘‘[i]n cases where the

Commission declines to review the ALJ decision, we and our

sister circuits have uniformly held that courts of appeals lack

jurisdiction over objections not raised in the PDR.’’ A.J.

McNulty & Co., Inc. v. Sec’y of Labor, 283 F.3d 328, 332

(D.C. Cir. 2002) (citing Durez Div. of Occidental Chem.

Corp. v. OSHA, 906 F.2d 1, 5 (D.C. Cir. 1990); P. Gioioso &

Sons v. OSHRC, 115 F.3d 100, 107 (1st Cir. 1997)). In its

PDR Lill raised the following objection to the finding of

violation:

The Judge’s finding that the Secretary had met her

burden of proof with respect to a violation of the fall

protection standard was contrary to the evidence and

Commission precedent. Contrary to the Judge’s finding,

there is no proof that an unprotected edge existed, in

that the total perimeter of the HRSG was guarded by

5/8’’ wire rope.

JA 426. This language put the Commission on notice of only

the first of Lill’s challenges here–that the wire rope consti-

tutes a ‘‘guardrail system’’ in compliance with the OSHA

standard. The PDR makes no reference to the other three

objections Lill now asserts. Because the Commission had no

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opportunity to consider these objections, we are without

jurisdiction to do so. Cf. Durez, 906 F.2d at 5 (where PDR

simply stated ‘‘the Standard exceed[s] the statutory authority

granted,’’ with no discussion, citation to authority or basis for

challenge, ‘‘petitioner’s abbreviated mention of its challenge

to the validity of the Standard is ‘wholly inadequate to satisfy

the requirement of § 660(a) that an objection be ‘‘urged

before the Commission’’ ’ ’’) (quoting Power Plant Div.,

Brown & Root, Inc. v. OSHRC, 659 F.2d 1291, 1293 (5th Cir.

1981) (quoting 29 U.S.C. § 660(a))); see also P. Gioioso, 115

F.3d at 107 (‘‘[A]n aggrieved party desiring to preserve an

issue for judicial review must raise it before the ALJ, articu-

late it clearly in its PDR, and offer a modicum of developed

argumentation in support of it.’’) (citing Durez, 906 F.2d at 5).

We now address the one challenge properly before the court.

Lill contends the ALJ ignored the presence of the perime-

ter wire rope which, Lill insists, qualifies as a guardrail

system under section 1926.501(b)(1). Although the ALJ did

not specifically mention the wire rope in his decision, he

expressly supported his finding of violation by citing a portion

of the hearing transcript in which Rook testified that he

‘‘evaluated’’ the wire cable ‘‘according to [the] OSHA guard-

rail standards and [that] that was inadequate’’ because ‘‘[a]n

adequate guardrail system has a top rail at 42 inches [and] a

midrail at 21 inches.’’ Tr. 23. Rook based his determination

on 29 C.F.R. § 1926.502(b)(2), which sets out specific require-

ments for a guard rail system:

Guardrail systems. Guardrail systems and their use

shall comply with the following provisions:

(1) Top edge height of top rails, or equivalent guard-

rail system members, shall be 42 inches (1.1 m) plus or

minus 3 inches (8 cm) above the walking/working level.

When conditions warrant, the height of the top edge may

exceed the 45-inch height, provided the guardrail system

meets all other criteria of this paragraph.

TTT

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(2) Midrails, screens, mesh, intermediate vertical

members, or equivalent intermediate structural members

shall be installed between the top edge of the guardrail

system and the walking/working surface when there is no

wall or parapet wall at least 21 inches (53 cm) high.

Because the wire rope on which Lill relies does not meet the

requirements of section 1926.502(b)(2),1 we uphold the ALJ’s

finding that Lill violated section 1926.501(b)(1) as ‘‘ ‘supported

by substantial evidence on the record considered as a

whole,’ ’’ S. A. Storer & Sons Co. v. Sec’y of Labor, No. 02-

1307, slip op. at 7 (D.C. Cir. Mar. 19, 2004) (quoting A.J.

McNulty & Co., 283 F.3d at 331 (quoting 29 U.S.C. § 660(a))).

B. Unpreventable Employee Misconduct

Second, Lill asserts the ALJ erred in rejecting its defense

of ‘‘unpreventable employee misconduct.’’ To establish this

defense, ‘‘an employer must demonstrate that it (1) estab-

lished a work rule to prevent the reckless behavior and/or

unsafe condition from occurring, (2) adequately communicated

the rule to its employees, (3) took steps to discover incidents

of noncompliance, and (4) effectively enforced the rule when-

ever employees transgressed it.’’ P. Gioioso & Sons, 115

F.3d at 109 (citing New York State Elec. & Gas Corp. v. Sec’y

of Labor, 88 F.3d 98, 105 (2d Cir. 1996); Gen. Dynamics

Corp. v. OSHRC, 599 F.2d 453, 458–59 (1st Cir. 1979); Jensen

Constr. Co., 7 O.S.H. Cas. (BNA) 1477, 1479 (1979)). Al-

though Lill had in place a rule requiring all employees to be

tied off when on catwalks, the ALJ expressly found ‘‘this rule

was not adequately communicated or enforced as there was

abundant evidence that employees, including the site manag-

er, did not tie-off while on the catwalks,’’ Lill field superinten-

dent Steve Billington ‘‘appeared confused about the rule, as

he testified that employees were in fact permitted to traverse

1 Section 1926.501(b)(1) expressly incorporates by reference the

specific criteria contained in section 1926.502(b)(2): ‘‘This section

sets forth requirements for employers to provide fall protection

systems. All fall protection required by this section shall conform

to the criteria set forth in § 1926.502 of this subpart.’’

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the catwalks without tying off’’ and ‘‘on-site signs directing

employees to wear safety harnesses did not also indicate

when the employees were required to tie-off.’’ ALJ Op. 4.2

The ALJ further noted that ‘‘while the company showed that

it disciplined employees for fall-related safety violations, it

presented no proof that it endeavored to enforce its tie-off

rule to employees who were not right at the edge.’’ Id.

(citing Southwestern Bell Tele. Co., 19 BNA OSHC 1097 (No.

98-1758 2000); Tr. 140-45, 233, 278-79). Given the evidence

the ALJ cited–in particular Rook’s testimony that Savoy,

Gross, Tanguay and Grant (the latter two, as already noted,

being foremen) told him during the initial inspection that the

rule was violated frequently–the ALJ reasonably determined

that Lill did not make out its defense.

C. Walk–Around Rights

Third, Lill challenges the ALJ’s refusal to vacate the

citation on the ground Lill was denied its ‘‘walk-around’’

rights under 29 U.S.C. § 657(e). Section 657(e) provides:

(e) Employer and authorized employee representatives

to accompany Secretary or his authorized representative

on inspection of workplace; consultation with employees

where no authorized employee representative is present

Subject to regulations issued by the Secretary, a rep-

resentative of the employer and a representative au-

thorized by his employees shall be given an opportu-

nity to accompany the Secretary or his authorized

representative during the physical inspection of any

workplace under subsection (a) of this section for the

purpose of aiding such inspection. Where there is no

authorized employee representative, the Secretary or

2 The ALJ acknowledged the evidence that Lill ‘‘made efforts to

ensure the safety of its employees, such as conducting daily safety

inspections, holding daily safety meetings, providing more than

enough personal fall arrest systems for its employees, and disciplin-

ing employees who were actually within the zone of danger but

were not tied off’’ and consequently downgraded the violation from

‘‘willful’’ to ‘‘serious.’’ ALJ Op. 5-6.

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his authorized representative shall consult with a rea-

sonable number of employees concerning matters of

health and safety in the workplace.

OSHA’s supplemental regulation provides:

§ 1903.8 Representatives of employers and employees.

(a) Compliance Safety and Health Officers shall be in

charge of inspections and questioning of persons. A

representative of the employer and a representative au-

thorized by his employees shall be given an opportunity

to accompany the Compliance Safety and Health Officer

during the physical inspection of any workplace for the

purpose of aiding such inspection. A Compliance Safety

and Health Officer may permit additional employer rep-

resentatives and additional representatives authorized by

employees to accompany him where he determines that

such additional representatives will further aid the in-

spection. A different employer and employee represen-

tative may accompany the Compliance Safety and Health

Officer during each different phase of an inspection if

this will not interfere with the conduct of the inspection.

29 C.F.R. § 1903.8. Although Rook did not seek out an

authorized Lill representative to accompany him during his

inspection of the HRSGs, Lill is in no position to complain of

the lapse. Lill management was aware of Rook’s presence

and made no effort to participate in his inspection. Lill’s

safety manager, Timothy Cone, testified he was notified the

morning of the inspection by site manager Cole and site

safety representative Briscoe that an OSHA inspector was on

site. Further, Rook testified that, when he encountered site

foreman Brown on his initial climb up HRSG No. 2, he

‘‘invited Mr. Brown to come up and address the issue’’ of the

violation he had observed from the ground but that Brown

declined. Tr. 18. In any event, Lill has not shown any

prejudice it suffered as a result of not being represented

during the inspection, a requirement imposed by ‘‘every

circuit that has considered the issue.’’ Pullman Power

Prods., Inc. v. Marshall, 655 F.2d 41, 44 (4th Cir. 1981)

(citing Marshall v. C. F. & I. Steel Corp., 576 F.2d 809, 813-14

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(10th Cir. 1978); Marshall v. Western Waterproofing Co.,

Inc., 560 F.2d 947, 952 (8th Cir. 1977); Hoffman Constr. Co.

v. OSHRC, 546 F.2d 281, 282-83 (9th Cir. 1976); Hartwell

Excavating Co. v. Dunlop, 537 F.2d 1071, 1073 (9th Cir.

1976); Chicago Bridge & Iron Co. v. OSHRC, 535 F.2d 371,

377 (7th Cir. 1976); Accu-Namics, Inc. v. OSHRC, 515 F.2d

828, 833 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976)).

D. ‘‘Serious’’ Violation

Finally, Lill asserts the ALJ lacked authority to amend the

citation to allege a ‘‘serious’’ rather than ‘‘willful’’ violation.

Lill argues that only the Secretary may amend her citation

and that the ALJ was required to affirm the citation as either

willful or, if he found insufficient intent, as other-than-

serious.3 The Commission has developed the following policy:

Where the Secretary alleges that a violation is willful but

fails to prove willfulness, an other-than-serious violation

may be affirmed. A serious violation will not be found

unless the parties have expressly or impliedly consented

to try the issue of whether the violation was serious.

Atlas Indus. Painters, 1991 WL 165881, at *4 (OSHRC)

(citing Crawford Constr. Co., 1982 WL 22598, at *6 (OSHRC),

rev’d on other ground, 718 F.2d 1098 (6th Cir. 1983)); see also

Keco Indus., 1987 WL 89096, at 11 (OSHRC); Toler Excavat-

ing Co., 1975 WL 2637, at *2 (OSHRC). Lill contends that

because the Secretary alleged and the parties tried only a

willful violation, the ALJ was required to affirm it as other-

than-serious. Lill’s position overlooks that the Secretary in

fact alleged a serious as well as a willful violation. Although

the citation identified the violation simply as ‘‘willful,’’ the

Secretary’s complaint alleged it ‘‘is a Willful violation TTT or

the violation is a Serious violation within the meaning of

3 ‘‘[A] willful violation is ‘an act done voluntarily with either an

intentional disregard of, or plain indifference to, the Act’s require-

ments.’ ’’ A.E. Staley Mfg. Co. v. Sec’y of Labor, 295 F.3d 1341,

1345 (D.C. Cir. 2002) (quoting Kaspar Wire Works, Inc. v. Sec’y of

Labor, 268 F.3d 1123, 1127 (D.C. Cir. 2001) (quoting Conie Constr.,

Inc. v. Reich, 73 F.3d 382, 384 (D.C. Cir. 1995))).

11

sections 17(b) and 17(k) of the Act in that there was substan-

tial probability that death or serious physical harm could

result from the conditions that existed and [Lill] knew, or

with the exercise of reasonable diligence should have known

of the presence of the violation.’’ JA 334-35. Lill should not

have been surprised, therefore, that the ALJ found the

violation to be serious in accordance with the Secretary’s

complaint.4

For the foregoing reasons, the petition for review is

Denied.

4 Lill does not dispute that the nature of the violation satisfies the

statutory requirements of a serious violation, namely that there be

‘‘a substantial probability that death or serious physical harm could

result from a condition which exists, or from one or more practices,

means, methods, operations, or processes which have been adopted

or are in use, in such place of employment unless the employer did

not, and could not with the exercise of reasonable diligence, know of

the presence of the violation.’’ 29 U.S.C. § 666(k).