Superior Custom Cab v. OSHRC

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60769
Summary Calendar
SUPERIOR CUSTOM CABINET COMPANY, INC.,
Petitioner,
versus
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,
Respondent.
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On Petition for Review of an Order
of the Occupational Safety and Health Review Commission
(Docket No. 94-0200, dated September 26, 1997)
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September 2, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Superior Custom Cabinet Company, Inc. (“Superior”) petitions
for review of an order of the Occupational Safety and Health Review
Commission (the “Commission”), which cited Superior for four
serious violations of construction standards under 29 C.F.R. §§
1926.20(b)(2), 1926.21(b)(2), 1926.500(d)(1),2 and 1926.1052(c)(1),
and imposed a penalty of $2,000. The Occupational Safety and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
29 C.F.R. § 1926.500(d)(1) was revised and recodified at 29
C.F.R. § 1926.501(b)(1) in 1994. Citations in this opinion are to
the 1993 Code of Federal Regulations, which was in effect at the
time of the incident at issue here.
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Health Administration (“OSHA”) issued the citation after a Superior
employee was killed as a result of falling from an unguarded
landing at a worksite while carrying a cabinet up a flight of
stairs. We DENY the petition for review and AFFIRM the decision of
the Commission.
The citation alleged that Superior had committed serious
violations by: (1) failing to give employees adequate instruction
on the recognition and avoidance of unsafe conditions and
regulations applicable to their worksite, see 29 C.F.R. §
1926.21(b)(2); (2) failing to provide for the required inspection
of the worksite, see 29 C.F.R. § 1926.20(b)(2); (3) violating the
requirement that there be a guardrail on the stairs, see 29 C.F.R.
§1926.1052(c)(1); and (4) violating the requirement that there be
a guardrail on the landing, see 29 C.F.R. § 1926.500(d)(1).
On review of an order of the Occupational Safety and Health
Review Commission, we are bound by factual findings if they are
supported by substantial evidence in the record, and we may reverse
the Commission’s conclusions only if they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law.” See Corbesco, Inc. v. Dole, 926 F.2d 422, 425 (5th Cir.
1991) (quoting 5 U.S.C.A. § 706(2)(A)). Additionally, this court
has emphasized that
[T]he Secretary’s interpretation of an OSHA regulation is
entitled to great deference. We have held that the
promulgator’s interpretation is controlling as long as it is
one of several reasonable interpretations, although it may not
appear as reasonable as some other.
Everglades Sugar Refinery, Inc. v. Donovan, 658 F.2d 1076, 1081
2
(5th Cir. 1981)(internal quotation marks and citations omitted;
brackets in original). With this standard in mind, we consider
Superior’s arguments regarding each of the violations in turn.
First, Superior argues that the Commission has misinterpreted
§ 1926.21(b)(2) to require that safety training include more
specific instructions than those Superior provided its delivery
crews. Superior argues that the Secretary had the burden of
proving that its instructions were significantly less extensive
than a reasonably prudent employer would have given in the same
circumstances and that, because no evidence regarding other
employers was submitted, this burden was not met. According to
Superior, it would not be realistic for it to give specific
instructions to its crews regarding how to deal with every hazard
that might be encountered on their deliveries.
Based on the testimony of several Superior employees, the
Commission found that the company’s instructions on avoiding
hazards left the employees too much discretion in identifying
unsafe conditions. We find that there was substantial evidence to
support the factual conclusion that Superior’s instructions left
employees with different ideas about when stairways without rails
are dangerous, and that its legal conclusion that this left the
employees with too much discretion in identifying unsafe conditions
was reasonable. Moreover, as the Commission pointed out, employers
must model their rules on the relevant regulations. See Secretary
of Labor v. El Paso Crane & Rigging Co., 16 BNA OSHC 1419, 1425 n.6
(and cases cited therein), 1993-95 CCH OSHD 30,231, 41,621 n.6 (No.
3
90-1106, 1993), 1993 WL 393508 at 12 n.6 (O.S.H.R.C.). It was
reasonable for the Commission to conclude that Superior’s general
instructions to avoid dangerous situations did not adequately
reflect the regulations that set out standards requiring guardrails
on stairs and landings, see 29 C.F.R. §§ 1926.1052(c)(1) and
1926.500(d)(1), and that no further analysis of what a reasonably
prudent employer would do was necessary to establish a violation.
This case is distinguishable from El Paso Crane, which Superior
cites for the proposition that an employer’s instructions may be
adequate though they leave employees discretion. In El Paso Crane,
the employer offered evidence of more extensive safety training and
a more persuasive argument as to why, given the type of work they
were engaged in, it was reasonable to give its employees discretion
to make certain safety decisions. El Paso Crane’s instructions to
its employees did not ignore the relevant federal regulations (in
fact, part of El Paso Crane’s training program involved giving
employees copies of the OSHA standards). In contrast, for Superior
to leave decisions regarding the use of unguarded stairways and
landings to the discretion of employees was directly at odds with
the relevant regulations. Superior’s argument that it could not
foresee and give specific instructions on every potential hazard
its employees might encounter cannot excuse it from not having
given specific instructions on the particular kinds of hazards for
which there are clear federal regulations that do not allow for
discretion.
Next, Superior challenges the Commission’s holding that
4
Superior violated 29 C.F.R. § 1926.20(b)(2), which requires
employers to “provide for frequent and regular inspections of the
job sites, materials, and equipment to be made by competent persons
designated by the employer.” According to Superior, the Commission
erred by finding a violation on the basis of the conclusion that it
was unreasonable for the person who was supposed to conduct
inspections for this crew not to inspect the stairway or second
floor.3 Superior argues that the issue is whether it had
designated a competent person to make inspections, not whether that
person made a reasonable decision in this case about whether to
inspect upstairs. Superior offers evidence of the training and
background of the person it says was designated on this crew to
make inspections, and argues that it met its responsibilities under
the regulation by designating someone whose training and background
made it reasonable to believe he was competent. The Secretary
argues that the regulation requires that frequent and regular
inspections actually be made by competent designated persons, not
just that competent persons be designated to make them, and that
the Commission therefore properly found a violation when it
concluded that a competent inspection had not been made in this
situation.
The Commission based its finding that it was unreasonable for
3
Superior makes much of the fact that the delivery ticket
erroneously indicated that the cabinets were to go downstairs. It
offers no evidence, however, that the accuracy of the delivery
ticket was not its own responsibility. While the error on the
ticket might explain the failure to inspect the stairs and second
floor, it does not excuse that failure nor relieve Superior of its
obligations regarding inspection.
5
the designated person not to inspect the second floor on evidence
that the cabinets being delivered were for a master bathroom and
testimony that it was clear that the bathroom on the first floor
was not a master bathroom. This finding is supported by
substantial evidence. It is not clear from the Commission’s
opinion exactly how it construed the requirements of the
regulation. There are, however, reasonable interpretations of the
regulation that would allow the Commission to conclude from the
unreasonableness of the failure to inspect the second floor that §
1926.20(b)(2) had been violated. Accordingly, we affirm the
Commission’s holding that there was such a violation.
Finally, Superior argues that it established the affirmative
defense of employee misconduct with respect to the alleged
violations of §§ 1926.500(d)(1) and 1926.1052(c)(1). It is
undisputed that the stairs and landing where the accident occurred
were unguarded. The Commission held that Superior failed to
establish two elements of the employee misconduct defense: that the
employer adopted work rules designed to prevent the violation, and
that the employer had effectively enforced the rules when
violations were discovered. On appeal, Superior argues that it had
adopted work rules designed to prevent the violations in question,
and had effectively enforced them. Its arguments on the first of
these points are essentially the same as those it raised in arguing
that its training and instructions were adequate. As discussed
above, those arguments are unpersuasive. Superior’s general
instructions to avoid unsafe hazards were not--as is required--
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modeled on the relevant regulations. Those instructions therefore
were not adequately designed to prevent the violations of the
regulations that occurred. Because Superior has not shown that it
adopted work rules sufficient to establish the employee misconduct
defense, we need not consider whether its rules were effectively
enforced.
For the foregoing reasons, the petition for review is DENIED
and the decision of the Commission is AFFIRMED.
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