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

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON. KAREN LeCRAFT HENDERSON, Circuit Judge: The Secretary of Labor (Labor), through the Occupational Safety and Health Administration (OSHA), cited Frank Lili & Son, Inc. (Lili) for willful violation of 29 C.F.R. § 1926.501(b)(1) which requires an employer to provide fall protection where employees 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, Commission). Lili petitioned for review of the final order. For the reasons set forth below, we deny the petition for review. I. Lili is in the business of constructing power plants and process piping installations. In April 2001 Lili began construction of two eighty-foot heat recovery steam generators (HRSGs) in Newington, New Hampshire under a subcontract with general contractor Fluor Constructors (Fluor). On January 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 Lili 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 Lili site foreman Bob Brown. According to Rook, he informed Brown he was “on site for a complaint” and had “observed employees working 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 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. 28. 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 Lili management “had been working in the area when employees weren’t tied off.” Id. A short time later, Rook met with Lili foreman Ron Tanguay, explained who he was and why he was at the site and stated he had seen employees working without fall protection. When asked, Tanguay confirmed that working without fall protection was “a recurring pattern,” Tr. 29, and told him of an incident 7-10 days earlier when Lili employee Rick Chamberlain “had slipped and fallen while walking *843 along the platform on the HRSG,” Tr. 30. After this conversation, Rook began to climb down the stairs to interview Chamberlain. While descending the stairs, Rook observed and photographed another Lili employee, Steve Drew, working without fall protection about 75 feet above the ground. Rook proceeded 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, Lili 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 Lili managemenNsite 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 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 Bris-coe and Cole. Finally, on February 22, 2002 Rook met with management from all of the site contractors, including Lili, and discussed his inspection and the deficiencies he had observed. On March 8, 2002 OSHA issued a citation to Lili for willful violation of 29 C.F.R. § 1926.501(b)(1), which provides: “Each employee on a walking/working surface (horizontal and vertical 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 alleged that Lili 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. Lili contested the citation and on April 14, 2002 the Secretary issued a complaint alleging that Lili 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. Lili filed a petition for discretionary review by the Commission. 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©). Lili filed a timely petition for review on April 3, 2003. II. Lili 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, Lili challenges the ALJ’s finding of a violation on four grounds: (1) it is contrary to the evidence because the 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 *844 Savoy was exposed to fall hazard and (4) the ALJ erred in finding Lili 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 Commission. 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 constitutes a “guardrail system” in compliance with the OSHA standard. The PDR makes no reference to the other three objections Lili now asserts. Because the Commission had no 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, articulate 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. Lili contends the ALJ ignored the presence of the perimeter wire rope which, Lili 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 guardrail 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 requirements 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 guardrail system members, shall be 42 inches (1.1 m) plus or minus 3 inches (8 cm) above the walking/work *845 ing 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. (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 Lili relies does not meet the requirements of section 1926.502(b)(2), 1 we uphold the ALJ’s finding that Lili 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, 360 F.3d 1363, 1367-68 (D.C.Cir.2004) (quoting A.J. McNulty & Co., 283 F.3d at 331 (quoting 29 U.S.C. § 660(a))). B. Unpreventable Employee Misconduct Second, Lili asserts the ALJ erred in rejecting its defense of “unpreventable employee misconduct.” To establish this defense, “an employer must demonstrate that it (1) established a work rule to prevent the reckless béhavior 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 whenever 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)). Although Lili 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 manager, did not tie-off while on the catwalks,” Lili field superintendent Steve Billington “appeared confused about the rule, as he testified that employees were in fact permitted to traverse 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 O.S.H. Cas. (BNA) 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 reason *846 ably determined that Lili did not make out its defense. C. Walk-Around Rights Third, Lili challenges the ALJ’s refusal to vacate the citation on the ground Lili 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 representative of the employer and a representative authorized by his employees shall be given an opportunity 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 his authorized representative shall consult with a reasonable 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 authorized 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 representatives and additional representatives authorized by employees to accompany him where he determines that such additional representatives will further aid the inspection. A different employer and employee representative 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 Lili representative to accompany him during his inspection of the HRSGs, Lili is in no position to complain of the lapse. Lili 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, Lili 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 (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. *847 1975), cert. denied, 425 U.S. 903, 96 S.Ct. 1492, 47 L.Ed.2d 752 (1976)). D. “Serious” Violation Finally, Lili asserts the ALJ lacked authority to amend the citation to allege a “serious” rather than “willful” violation. Lili 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 Excavating Co., 1975 WL 5016, at *2 (OSHRC). Lili 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 eom-plaint alleged it “is a Willful violation ... or the violation is a Serious violation within the meaning of sections 17(b) and 17(k) of the Act in that there was substantial probability that death or serious physical harm could result from the conditions that existed and [Lili] knew, or with the exercise of reasonable diligence should have known of the presence of the violation.” JA 334-35. Lili 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. Footnotes [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.’' [2] The ALJ acknowledged the evidence that Lili “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 disciplining 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. [3] "[A] willful violation is 'an act done voluntarily with either an intentional disregard of, or plain indifference to, the Act’s requirements.’ ” 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))). [4] Lili 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).