Lake Building Prods. v. Sec'y of Labor

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0139p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LAKE BUILDING PRODUCTS, INC., ┐
Petitioner, │
│
> No. 19-3212
v. │
│
│
SECRETARY OF LABOR; OCCUPATIONAL SAFETY AND │
HEALTH REVIEW COMMISSION, │
Respondents. │
┘
On Petition for Review
of an Order of the Occupational Safety & Health Administration;
No. 16-1300.
Argued: December 12, 2019
Decided and Filed: May 6, 2020
Before: GILMAN, KETHLEDGE, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Andrew R. Kaake, WOOD + LAMPING LLP, Cincinnati, Ohio, for Petitioner.
Jessica L. Cole, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents. ON BRIEF: Andrew R. Kaake, WOOD + LAMPING LLP, Cincinnati, Ohio, for
Petitioner. Anne R. Godoy, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondents.
_________________
OPINION
_________________
KETHLEDGE, Circuit Judge. Lake Building Products, a steel-erection company,
challenges the Occupational Safety and Health Review Commission’s conclusion that Lake
No. 19-3212 Lake Building Prods. v. Sec’y of Labor Page 2
Building violated a regulation requiring certain workers to use equipment protecting them from
falls. Although we agree with the Commission’s interpretation of the relevant regulation, we
conclude on this record that Lake Building lacked fair notice of that interpretation. We therefore
grant the petition.
I.
A.
At issue in this case is a safety regulation applicable to the construction of steel-framed
buildings. As a building’s structure rises above ground level, cranes hoist and then swing into
place loads of structural material that often weigh thousands of pounds. Workers engaged in this
kind of construction—known as ironworkers—help to place these loads in precise positions on
the building structure. Ironworkers also climb steel columns and move from point to point on
elevated steel beams.
The Occupational Safety and Health Administration promulgates safety regulations
applicable to the steel-erection industry. See 29 U.S.C. § 651(b). To that end, in 1994, OSHA
established the Steel Erection Negotiated Rulemaking Advisory Committee, which included
members “from labor, industry, public interests and government agencies.” Safety Standards for
Steel Erection, 66 Fed. Reg. 5196, 5197 (Jan. 18, 2001). Those members then negotiated for
18 months before recommending safety regulations for the steel-erection industry.
OSHA’s regulations generally require ironworkers to use fall protection whenever
working above a height of 15 feet. See 29 C.F.R. § 1926.760(a)(1). But the Advisory
Committee recommended an exception to that rule for workers known as “connectors,” who are
specially trained to work with incoming loads from hoisting equipment. Ironworkers who
appeared before the Advisory Committee “uniformly stated that they needed to remain
unencumbered when they were working with hoisting equipment and some members recounted
personal experiences where they were able to escape collapses and incoming steel only because
they were not tied off.” 66 Fed. Reg. at 5246; see also id. (“The ability to move without restraint
in order to get away from incoming loads is also stated as a reason for connectors not to tie off”).
Accordingly, the final regulation exempted from the fall-protection requirement any
No. 19-3212 Lake Building Prods. v. Sec’y of Labor Page 3
ironworker—at heights between 15 and 30 feet—who is working as a “connector,” which the
regulation defines as “an employee who, working with hoisting equipment, is placing and
connecting structural members and/or components.” 29 C.F.R. § 1926.751.
B.
Lake Building Products manufactures steel-framed buildings. In June 2016, in Akron,
Ohio, two of Lake Building’s employees were working atop the steel frame of a partially
completed building, 28 feet above the ground. The employees were wearing safety harnesses
that, if anchored to the building, would prevent them from falling. But they had chosen to
remain unanchored while they worked with a crane to place bundles of steel decking. Sometime
later, the ironworkers would connect that decking to the building’s frame to form its roof.
A compliance officer from OSHA saw the workers and thought that their failure to
anchor their harnesses was a violation of OSHA’s fall-protection regulations. The on-site
foreman disagreed, asserting that those workers were “connectors.” Yet the officer—who later
acknowledged his own lack of experience with the steel-erection regulations, see Joint App. at
224–25—wrote up a citation against the company anyway. Lake Building contested the citation,
but an Administrative Law Judge upheld it on the ground that the workers were only “placing”
the decking bundles—rather than “placing and connecting” them, 29 C.F.R. § 1926.751—and
thus were not “connectors” as defined by the regulation. The Occupational Safety and Health
Review Commission declined to review the ALJ’s decision, which made it a final order of the
Commission. Lake Building then petitioned for review in this court.
II.
We review the Commission’s factual findings for substantial evidence. See 29 U.S.C.
§ 660(a). We interpret the applicable regulations as we would a statute, and defer to the
Commission’s interpretation only if a regulation’s meaning remains unclear after “exhaust[ing]
all the traditional tools of construction.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (internal
quotation marks omitted).
No. 19-3212 Lake Building Prods. v. Sec’y of Labor Page 4
The traditional tools answer the interpretive question here. The Occupational Safety and
Health Act requires employers and employees to comply with OSHA regulations. 29 U.S.C.
§ 654(a)(1)–(2). Here, the relevant regulation is 29 C.F.R § 1926.751, which, as noted above,
defines a “connector” as an “employee who, working with hoisting equipment, is placing and
connecting structural members and/or components.” Lake Building argues that the employees at
issue were connectors because they were working with hoisting equipment to place structural
members, namely the bundles of steel decking. Thus, according to Lake Building, an employee
is a connector when he is either “placing” or “connecting” structural members. In effect, Lake
Building reads “placing and connecting” to mean “placing and/or connecting”; the Commission,
in contrast, reads the same phrase to mean that a worker is a connector only when he is doing
both of those things.
Sometimes “[s]loppy drafting . . . leads courts to recognize that and in a given context
means or[.]” Bryan A. Garner, A Dictionary of Modern Legal Usage 55 (2d ed. 1995). But
ordinarily we read “and” to have a conjunctive meaning, which is the meaning the Commission
assigns it here. See OfficeMax Inc. v. United States, 428 F.3d 583, 588 (6th Cir. 2008). And
here the regulation uses both “and” (as in “placing and connecting”) as well as “and/or” (as in
“structural members and/or components”) in the very same sentence, which shows that
when OSHA meant “and/or” it knew how to say so. See, e.g., FTC v. Sun Oil Co., 371 U.S. 505,
514–15 (1963); 29 C.F.R. § 1926.751. The regulation therefore requires that an employee be
both “placing and connecting” to be a “connector.”
Lake Building points to several authorities beyond the regulation’s text to support its
interpretation. First, the regulation’s preamble says that “an employee is a connector only when
working with hoisting equipment.” 66 Fed. Reg. at 5203 (internal quotation marks omitted).
But the regulation itself makes clear that “working with hoisting equipment” is only a necessary
condition for a worker to qualify as a connector, not a sufficient one. See 29 C.F.R. § 1926.751.
Second, Lake Building cites two other administrative decisions. In one, an ALJ classified
as a “connector” an employee who worked with hoisting equipment while placing components
that would be connected “later.” Sawyer Steel Inc., 21 BNA OSHC 1196 (No. 04-0429, 2004).
That is the same scenario that the ALJ described here. See Sec’y of Labor v. Lake Bldg. Prods.,
No. 19-3212 Lake Building Prods. v. Sec’y of Labor Page 5
2018 WL 7080226, at *4 (O.S.H.R.C. Dec. 13, 2018) (reciting that “[n]othing would be done
with these decking bundles until later”). In the other decision, California’s Division of
Occupational Safety and Health interpreted verbatim the same definition of “connector”—there,
as set forth in California’s occupational-safety regulations—to have the same meaning that Lake
Building assigns that definition here. See In re Anning-Johnson Co., Ca. OSHA Dkt. No.
06-R1D3-1976, 2012 WL 470134 (Jan. 13, 2012). But the reasoning of those decisions provides
no basis to construe the actual text of the regulation any differently than we have here.
What those decisions do support, however, is Lake Building’s argument that it lacked fair
notice of the Commission’s interpretation of “connector” as used in 29 C.F.R. § 1926.751. See
Ohio Cast Prods., Inc. v. Occupational Safety & Health Review Comm’n, 246 F.3d 791, 798–99
(6th Cir. 2001). In determining whether an employer had “adequate notice” of the Commission’s
interpretation of a regulation, we consider the following: whether the regulation is “inartful[ly]”
drafted; “common understanding” of the regulation and “commercial practice”; and the “pattern
of administrative enforcement.” Id. at 799. Here, the regulation’s drafting is indeed less than
“artful” to the extent it requires that an ironworker be both “placing and connecting” a structural
member to be a “connector.” Presumably an ironworker cannot do both of those things
simultaneously. Thus, to honor OSHA’s use of the conjunctive “and”—while construing the
regulation not to require an impossibility—one must require only a certain temporal proximity
between the placing and connecting. (The ALJ expressly recognized as much. See Lake Bldg.
Prods., 2018 WL 7080226, at *8.) Here, we need not determine exactly what that temporal
proximity must be, since the decking bundles at issue were not connected until weeks later. See
id. at *4. That the regulation could not mean what it literally said, however, did create
uncertainty regarding what it meant; and Lake Building, unlike this court, was not required to
“exhaust all the traditional tools of construction” to resolve that uncertainty. Kisor, 139 S. Ct. at
2415.
Moreover, Lake Building did present significant evidence—including testimony from its
expert witness, Steven Rank, who is the Executive Director of Safety and Health at the Iron
Workers Union, and who was himself a member of the Advisory Committee that recommended
this regulation—that industry practice is to regard ironworkers who are only “placing” structural
No. 19-3212 Lake Building Prods. v. Sec’y of Labor Page 6
members or components of a building as “connectors.” Joint App. at 326, 329. And Rank
further testified that the industry makes use of a training video (which Rank himself helped
create) that depicts ironworkers placing bundles without anchoring their fall protection—which
is to say that it depicts such workers as connectors. Id. at 349. In addition, as noted above, the
only extant authority with respect to the meaning of the regulatory text at issue here construed it
precisely as Lake Building did. Finally, in the 15 years between the effective date of this
regulation and the citation at issue here—years in which, the record strongly suggests, many
building companies and ironworkers read § 1926.751 the same way that Lake Building did—the
Commission enforced the regulation the way that it did here only once. Indeed the Secretary
impliedly admits as much. See Sec’y Br. at 42. And on that one occasion, the administrative law
judge vacated that citation in Sawyer Steel. We therefore conclude that Lake Building did not
have adequate notice of the interpretation that gave rise to the citation here. See, e.g., Diebold
Inc. v. Marshall, 585 F.2d 1327, 1336–37 (6th Cir. 1978).
Finally, we acknowledge Lake Building’s emphatic argument—and the ironworkers’
testimony before the ALJ—that the Commission’s interpretation of § 1926.751 will only
increase the hazards for ironworkers who are placing, but not yet connecting, structural members
or components while “working with hoisting equipment.” But that dispute is one for resolution
by OSHA or the Secretary himself.
* * *
We grant the petition and vacate the citation and penalty.