E&R Erectors Inc v. Secretary of Labor

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
2-20-1997
E&R Erectors Inc v. Secretary of Labor
Precedential or Non-Precedential:
Docket 96-3276
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
NO. 96-3276
____________
E & R ERECTORS, INC.,
Petitioner,
v.
SECRETARY OF LABOR,
Respondent.
____________
On Petition for Review of a Final Order of the Occupational
Safety and Health Review Commission
____________
Submitted Under Third Circuit LAR 34.1(a) January 10, 1997
Before: COWEN, ALITO, and ROSENN, Circuit Judges.
Filed February 20, 1997
____________
John Philip Diefenderfer, Esquire
340 Harrisburg School Road
Quakertown, PA 18951
Counsel for Petitioner
J. Davitt McAteer, Solicitor of Labor
Joseph M. Woodward, Associate Solicitor for
Occupational Safety and Health
Barbara Werthmann, Counsel for Appellate Litigation
Edward O. Falkowski, Attorney
U.S. Department of Labor
Room S-4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Counsel for Respondent
_____________
OPINION OF THE COURT
____________
ROSENN, Circuit Judge.
1
E & R Erectors, Inc. ("E & R") has petitioned this
court for review of two citations and the accompanying penalty
imposed upon it by the Occupational Safety and Health Review
Commission ("Commission"). E & R argues that the Administrative
Law Judge ("ALJ") erred in finding that E & R was the responsible
employer on the worksite when the alleged violations occurred and
also erred in finding that there was sufficient evidence to show
that these violations did in fact occur. Equally important is
the legal question raised by the Petitioner as to who bears the
burden of proof when an employer claims that compliance with an
Occupational Safety and Health Administration ("OSHA") regulation
would create a greater hazard that would excuse non-compliance.
The ALJ's decision ultimately became the final order of the
Commission. We perceive no merit to E & R's numerous contentions
and, therefore, deny the Petition for Review.
I.
On December 1, 1994, OSHA compliance officer George
Boyd inspected a construction worksite in West Conshohocken,
Pennsylvania, where a seven-story office building was being
erected. The first three levels of the building were to serve as
a parking garage; the four highest levels were designed for
office space. At the time of Boyd's inspection, four levels had
been constructed: the lowest three levels for parking and the
first office level (labeled B-1 in the blueprints).
2
Immediately upon entering the site, Boyd observed that
the area surrounding the counterweight of a large crane had not
been barricaded or flagged off, as is required by federal
regulations.1 At the same time, Boyd saw an employee standing in
the counterweight's swing area. Boyd videotaped the area and
then introduced himself to the two employees operating the crane.
One of the crane operators identified himself as an employee of
E & R. Boyd told them that the area surrounding the crane's
counterweight had to be barricaded according to federal
regulations. The employees immediately put up flagging around
the area.
Boyd then proceeded to the construction building and
spoke with Fred Little, the superintendent on the job site for
the general contractor, John McQuade Construction. Little told
Boyd that the ironworkers on the site were employees of E & R.
Following this conversation, Boyd went to the B-1 level of the
building and spoke with two of the ironworkers working on this
level. They introduced him to their foreman, who identified
himself as Mr. Brown, an employee of E & R. The foreman also
gave Boyd the address and telephone number of E & R Erectors, and
told Boyd that E & R employed an aggregate of 40 persons.
1. 29 C.F.R. § 1926.550(a)(9) states that: "Accessible areas within the swing radius of the
rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall
be barricaded in such a manner as to prevent an employee from being struck or crushed by the
crane."
3
Boyd found that the ironworkers were installing large
steel columns on the B-1 level of the building, and the
installation process required that they stand near the edge of
the open-sided floor on that level while guiding the columns into
place. Temporary guardrails had been constructed around the
perimeter of the level; these guardrails had been removed in the
area of the southeast corner of the structure for installation of
the columns. The ironworkers told Boyd that they didn't use any
fall protection while installing the columns.2 Boyd
estimated the distance from the B-1 level to the ground to be
between 29 and 33 feet; E & R insisted that the distance was only
24 feet. Federal regulations require that fall protection be
provided if the distance is greater than 25 feet.3 Therefore,
Boyd determined that E & R was in violation of these safety
regulations and that a citation should be issued for this
violation.
On December 6, 1994, Boyd returned to the construction
site and witnessed a man walking through the area which had been
flagged off for the crane's counterweight swing radius. This man
introduced himself to Boyd as Walter Cantley, and informed Boyd
that he was E & R's superintendent. Cantley was also present at
2. While Boyd videotaped the installation of some columns at the worksite, he did not
videotape the installation of the beams for which the citation was issued.
3. 29 C.F.R. § 1926.105(a) states: "Safety lines 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."
4
the closing conference held that day regarding the violations of
federal safety regulations.
OSHA formally cited E & R on December 22, 1994, for
three violations of the Occupational Safety and Health Act of
1970, 29 U.S.C. § 651 et seq. ("OSH Act") and its accompanying
regulations. The citation for one violation was subsequently
withdrawn. E & R contested the two remaining citations and a
Commission ALJ held a hearing in September, 1995.
The ALJ found that E & R was the responsible employer
at the site at the time of the violations and that sufficient
proof of the two violations had been established. Therefore, the
ALJ affirmed both the citations and the proposed penalty (a $
3,000 fine). E & R petitioned the full Commission for
discretionary review of the ALJ's order. The Commission denied
review, and the ALJ's ruling became the final order of the
Commission, pursuant to 29 U.S.C. § 661(j).
II.
The Commission had jurisdiction to adjudicate this
matter pursuant to § 10(c) of the OSH Act, 29 U.S.C. § 659(c).
This court has jurisdiction over this matter pursuant to 29
U.S.C. § 660(a), which gives the circuit in which the violation
occurred jurisdiction to hear an appeal from the final order of
the Commission.
5
Under the OSH Act, the findings of the Commission with
respect to questions of fact shall be conclusive if supported by
substantial evidence on the record considered as a whole. 29
U.S.C. § 660(a); Martin v. Bally's Park Place Hotel & Casino, 983
F.2d 1252, 1256 (3d Cir. 1993). Legal conclusions may be set
aside if they are arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the law. Atlantic & Gulf
Stevedores, Inc. v. Occupational Safety & Health Review Comm'n,
534 F.2d 541, 547 (3d Cir. 1976); 5 U.S.C. § 706(2)(A). The
Secretary's reasonable legal interpretation of the OSH Act, a
statute the Secretary is charged with administering, is entitled
to deference. Martin v. Occupational Safety & Health Review
Comm'n, 499 U.S. 144, 150 (1991). In light of the OSH Act's
broad remedial purpose, the Act and regulations issued pursuant
to it should be liberally construed so as to afford the broadest
possible protection to workers. Whirlpool Corp. v. Marshall, 445
U.S. 1, 12-13 (1980).
A.
E & R first challenges the sufficiency of the evidence
upon which the ALJ relied in concluding that E & R was on the
worksite and employed the ironworkers charged with these
violations. E & R asserts that the ALJ credited hearsay
testimony over direct testimonial and documentary evidence, and
that the ALJ erred in so doing. The ALJ, however, is entitled to
6
consider all admissible evidence in reaching his factual
determination, and this finding will be sustained if there is
substantial evidence in the record as a whole to support it.
E & R first asserts that OSHA failed to verify the
identity of the ironworkers on the worksite and that it therefore
has not satisfied its burden on this issue. The only evidence
presented by the Secretary of Labor was the testimony of the OSHA
compliance officer, George Boyd. Boyd testified that he inquired
who employed the ironworkers to determine the identity of the
responsible employer. Fred Little, the general contractor's
superintendent, and Brown, the foreman of the ironworkers, both
informed him that the ironworkers were employed by E & R
Erectors. Additionally, Boyd testified that he spoke to Walter
Cantley, E & R's superintendent, at the job site on December 6, a
few days after the alleged violations, and that Cantley was
present at the conference later that day relating to the
violations. E & R is correct when it contends that this
testimony was hearsay evidence. However, E & R failed to object
to this evidence at the administrative hearing and it was
therefore admissible as evidence. United States v. Diaz, 223
U.S. 442, 450 (1911) ("[W]hen [hearsay evidence] is admitted
without objection it is to be considered and given its natural
probative effect as if it were in law admissible"); Wigmore on
7
Evidence § 18 n.1 (1983).4 Thus, this evidence has whatever
probative value that the ALJ, as the trier of fact in this
proceeding, reasonably accorded it.
E & R responded to Boyd's testimony with three pieces
of evidence: payroll records, the subcontracting agreement, and
the testimony of Eugene Grossi, E & R's vice-president. As to
the testimony of Grossi, it was within the discretion of the ALJ
to determine how much weight should be given to the witness'
testimony, particularly in light of Grossi's admission that he
was not involved in the day-to-day operations of the company.
Therefore, Grossi's statement that E & R was not on the worksite
could properly have been considered less probative than the
statements of the general contractor's superintendent and the
ironworkers' foreman.
The payroll records for the week of the alleged
violation show that none of the employees named by Boyd are
listed on E & R's payroll for New Jersey. Therefore, an employee
who was working in Pennsylvania, as was the case here, would not
be included in these records. Thus, these records provide only
marginal evidence, if any, of E & R's assertion that these
ironworkers were not E & R employees. The subcontracting
4. In his decision, the ALJ stated that the hearsay evidence was admissible under Federal Rule
of Evidence Rules 801(d)(2)(D) (statements of party-opponent) and 803(1) (present sense
impression). E & R Erectors argues that the ALJ erred in these evidentiary rulings. However, E
& R did not object to these statements as hearsay at the hearing and therefore cannot now object
to the admission of this evidence.
8
agreement states that the contract was awarded to Samuel Grossi
and Sons, Inc., of which Eugene Grossi was company president and
his brother vice-president, and had been subcontracted to
Bensalem Steel, owned by Grossi's son and niece. Along with
corporate officers, these two companies share a common address
and telephone number with E & R Erectors. Given the almost
transparent interplay of the companies involved in this matter,
the ALJ reasonably determined and found that the subcontract
would not outweigh the testimony of the OSHA compliance officer.
The ALJ fairly weighed the evidence presented by E & R
against Boyd's testimony. His determination that E & R was the
employer of the ironworkers on the jobsite at the time of the
violation was supported by the testimony of Boyd, the OSHA
compliance officer. E & R's evidence was not conclusive on this
matter and does not compel a decision different than that reached
by the ALJ. Therefore, the ALJ's determination that E & R
Erectors was the responsible employer on the job site is
supported by the record and therefore will be regarded as
conclusive for the purposes of this review.
On the matter of who operated the crane, which provided
the basis for the second violation, Boyd testified that crane was
a Hawthorne crane and that the operator told him he was an E & R
employee. E & R dismisses this testimony as hearsay, although
they did not challenge the evidence as such at the administrative
hearing. To prove that the operator was not an E & R employee,
9
Grossi testified that he was told that the crane belonged to the
Hawthrone Company and that it was being operated by Hawthorne
employees. This testimony was objected to by the Government as
hearsay and this objection was sustained.
E & R has failed to present any documentary evidence
establishing that the crane was owned/supplied by Hawthorne, much
less that Hawthorne employees operated the crane. The only
evidence it presented as to identity, Grossi's testimony, was
objected to and sustained. Thus, the only evidence before the
ALJ on the matter of the operator's identity was Boyd's hearsay
testimony. Therefore, there is sufficient evidence on the record
to sustain the ALJ's finding that E & R was the responsible
employer for purposes of the violation of § 1926.550(a). The
ALJ's finding that E & R was the responsible employer on the
worksite for purposes of the violations will be sustained.
B.
29 C.F.R. § 1926.105(a) requires that fall protection
measures be used when employees are working more than 25 feet
above the ground. E & R asserts that the ironworkers were only
24 feet above the ground at the time of the alleged violation,
and therefore no violation of § 1926.105(a) actually occurred.
The ALJ found that the distance from level B-1 to the ground was
at least 25.5 feet, and affirmed the citation for this violation.
10
This factual finding is conclusive if it is supported by
substantial evidence on the record.
In his decision, the ALJ referred to the blueprints for
the building. According to the ALJ, the blueprints show that the
distance between level B-1 and the ground was at least 25.5 feet.
He concluded that E & R erred in its reading of the blueprints,
which it read as showing a distance of only 24 feet, because it
failed to account for a 1.5 foot section of the structure.
In addition to the blueprints, the ALJ had the benefit
of testimony of three witnesses on the matter of the fall
distance. Boyd, the OSHA compliance officer, testified that the
distance was approximately 33 feet, because the area over which
the ironworkers were working at the time of the violation had
been dug out to create a loading dock. He testified that he
studied the engineer's drawings at the construction site and
calculated the fall distance to be 29 feet. He then added four
additional feet to the fall hazard to account for the area which
had been excavated to construct a loading dock. He concluded
that this was a fall distance of 33 feet.
Grossi agreed that the fall distance would have been
approximately 29 feet, but testified that there was a soil
overburden at the corner where the violation allegedly occurred.
He testified that soil overburden would be five feet high, which
would leave only a 24 foot fall. Grossi later testified that he
11
himself had never been to the job site, having only viewed it as
he drove past it on the way to an area country club.
A project manager for the architects, Michael
Spadafora, supported Boyd's testimony at the hearing. Spadafora
testified, using the blueprints and the videotape of the scene,
that the area in question had not been backfilled at the time the
videotape was shot. He testified that the fall distance would
therefore have been at least 29 feet at the time of the alleged
violation.
Based upon the foregoing, the ALJ had substantial
evidence in the record to determine that the fall distance was at
least 25 feet at the time of the alleged violation. The ALJ had
the blueprints and the testimony of two witnesses that the fall
distance was greater than 25 feet. The only evidence to the
contrary was the testimony of Grossi, which the ALJ found not
credible. There was substantial evidence on the record to
support the ALJ's finding that the fall hazard confronting the
ironworkers was greater than 25 feet.
C.
E & R further asserts that the OSHA compliance officer
"has the duty to bring all ``greater hazard' defenses to the
Supervisor's attention, and that no Citation shall be issued if
the elements of an affirmative defense are present," citing 59
12
Fed. Reg. 40684-85 as support. In fact, this section of the
Federal Register actually states:
OSHA has long acknowledged that there may be
circumstances at a particular workplace which
would make it unreasonable for the Agency to
pursue a citation. In the enforcement
context, OSHA has consistently placed the
burden on the employer in question to
establish any such circumstances as
"affirmative defenses" to OSHA citations.
The Agency has had considerable experience in
evaluating employers' efforts to establish
affirmative defenses (e.g., "impossibility"
(sometimes also known as "infeasibility") and
"greater hazard" defenses) to citations.
Based on that experience, OSHA has developed
Section V.E of the Field Operations Manual
(FOM) to guide OSHA personnel in assessing
those defenses.
. . . Under Section V.E.3.d, an OSHA compliance
officer who becomes aware that an employer is
raising an affirmative defense is directed to
gather pertinent information and to bring any
possible defenses to the attention of his or
her supervisor. That section further
provides that a citation is not issued when
OSHA determines that each and every element
of an affirmative defense is present.
Under these guidelines, the employer may have an affirmative
defense to a charge of violating an OSHA standard that compliance
was impossible or infeasible. Bancker Constr. Corp. v. Reich, 31
F.3d 32, 34 (2d Cir. 1994). The burden of establishing an
affirmative defense is on the employer, and every element of an
affirmative defense must be established to preclude issuance of a
citation. A compliance officer is not obligated to prove the
employer's case; rather, the compliance officer's only obligation
is to gather pertinent information and bring it to the attention
of his or her supervisor when he "becomes aware that an employer
13
is raising an affirmative defense." 59 Fed. Reg. at 40685
(emphasis added). The burden, however, is on the employer to
establish the defense in the first place. In this case, E & R's
simple assertion in their brief that "[t]he elements were
present" will not sustain this burden.
E & R raises both an impossibility defense and a
greater hazard (infeasibility) defense on this appeal. However,
E & R has clearly failed to establish the elements of an
impossibility defense before the ALJ or the compliance officer.
To establish an impossibility defense, the employer must show:
(1) that it would be impossible to comply with the standard's
requirements or that it would have precluded performance of the
work; and (2) that there were no alternative means of employee
protection available. 59 Fed. Reg. 40684. E & R failed to
present any evidence to the compliance officer or the ALJ to
establish that it was impossible to comply with the safety
requirements; in fact, Grossi conceded that the use of lifelines
was feasible as a means of fall protection. He asserted,
however, that this was an unsafe practice, arguing that it
presented a "greater hazard" than the risk of a fall. "Avoidance
of a greater hazard is also an affirmative defense," Bancker
Constr., 31 F.3d at 34, which the employer has the burden of
proving.
Despite Grossi's assertions, E & R has also failed to
establish a "greater hazard" defense. In order to establish this
14
defense, an employer must establish that compliance with a
standard would result in greater hazards to employees than non-
compliance, that there are no alternative means of employee
protection available, and that a variance was unavailable or
inappropriate. 59 Fed. Reg. 40684; Voegele Co. v. Occupational
Safety & Health Review Comm'n, 625 F.2d 1075, 1080 (3d Cir.
1980). All three elements must be shown to establish a greater
hazard defense. Voegele Co., 625 F.2d at 1081.
Grossi testified as to the risks presented by lifeline
entanglement and the limited mobility for the ironworkers "tied
off" in this manner. Boyd, the compliance officer, testified
that the use of lifelines was a feasible and safe means of fall
protection if done properly. Additionally, Boyd asserted that
the workers could wear lifelines while installing safety nets,
another means of complying with § 1926.105(a).
The ALJ determined, after listening to the evidence,
that Grossi failed to establish that a "greater hazard" existed,
excusing his noncompliance with § 1926.105(a). The ALJ found
lifelines could have been used during the installation of the
columns, and also could have been used while installing safety
nets. The ALJ found that "E & R has not refuted the Secretary's
prima facie case that a practical means of fall protection was
15
available."5 Therefore, the ALJ held that the greater hazard
defense was not applicable in the present matter.
In fact, the burden is not on OSHA to prove that a
practical means of fall protection is available; rather, the
burden is on the employer to prove that one is not. E & R failed
to establish that compliance with the standard presented a
greater safety risk than the 25-foot fall would have. As noted
above, E & R also failed to present evidence that no alternative
means of protecting the ironworkers were available or that a
variance would have been inappropriate in this case. Thus, we
hold that E & R has failed to satisfy the burden required of them
to establish that compliance with the OSHA regulation constitutes
a greater hazard that would excuse non-compliance with the
regulation. The ALJ's determination that there was no greater
hazard defense to this violation is supported by substantial
evidence on the record, and his legal conclusion is not arbitrary
and capricious, an abuse of discretion, or otherwise not in
accordance with the law on this matter.
Additionally, E & R argues that they cannot be cited
under 29 C.F.R. § 1926.105(a) because OSHA imposed a moratorium
on citations under Subpart R, dealing with fall protection in
steel erections. However, E & R was charged with violating 29
5. Additionally, E & R failed to assert that an application for a variance would have been
inappropriate in the present matter, nor did E & R establish that no other means of fall protection
were available. Therefore, E & R has failed to establish the greater hazard defense under the test
set forth by this Court. Voegele Co., 625 F.2d at 1080.
16
C.F.R. § 1926.105(a) [Subpart E] in December of 1994; the
amendments moving this section into Subpart R were not effective
until February 6, 1995. Therefore, neither the amendments nor
the moratorium on the enforcement of these amended regulations
has an impact on this case.
OSHA committed no error in charging E & R with a
violation of § 1926.105(a) under Subpart E, which governs
"Personal Protective and Life Saving Equipment" for Construction.
This section applied to all construction work, including the
steel erection industry, at the time the violations took place.
See 59 Fed. Reg. 40724 ("The requirements of § 1926.105(a) . . .
will continue to apply to steel erection of buildings until
Subpart R is revised.") Therefore, no bar precluded enforcement
of this provision in the instant case and the citation charging E
& R with violating this section will stand.
III.
For the foregoing reasons, the Petition for Review of
the Order of the Occupational Safety and Health Review Commission
will be denied. Costs taxed against the petitioner.
17