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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.
2
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
3
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
4
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
5
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
6
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
7
(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.’’
8
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.
9
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
10
(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).