Capeway Roofing Systems, Inc. v. Chao

United States Court of Appeals
For the First Circuit

No. 03-2373

CAPEWAY ROOFING SYSTEMS, INC.,

Petitioner,

v.

ELAINE CHAO, SECRETARY OF LABOR,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Before

Boudin, Chief Judge,

Selya and Howard, Circuit Judges.

Richard D. Wayne with whom Brian E. Lewis and Hinckley, Allen
& Snyder LLP were on brief for petitioner.
Ronald J. Gottlieb, United States Department of Labor, Office
of Solicitor, with whom Howard M. Radzely, Solicitor of Labor,
Joseph M. Woodward, Associate Solicitor for Occupational Safety and
Health, and Ann Rosenthal, Counsel for Appellate Litigation, were
on brief for respondent.

December 10, 2004
 BOUDIN, Chief Judge. Capeway Roofing Systems, Inc.

("Capeway"), a roofing contractor in Massachusetts, was fined by

the Occupational Safety and Health Review Commission ("the

Commission") for safety violations. It now seeks review in this

court. 29 U.S.C. § 660(a) (2000). The story is quickly told,

reserving details for the discussion of individual claims of error.

On April 24, 2000, two inspectors charged with enforcing

the Occupational Safety and Health Act ("the Act") visited a site

in Weymouth, Massachusetts, where Capeway was constructing roofing

on a new firehouse. The firehouse had four roofs: one, high and

steeply pitched, over the center of the garage; two wider and

somewhat flatter roofs extending over the rest of the garage; and

a lower flat roof over the living quarters attached to the garage.1

The inspectors, Peter Barletta and James Holiday,

according to their testimony, found that employees were working or

walking on all four roofs without hardhats and without physical

"fall protection" measures such as warning lines near roof edges.

The inspectors interviewed Capeway supervisor Dennis Mello and the

job foreman, Manny Araujo, who said they were acting as safety

monitors; but (according to Barletta) Mello admitted that he used

his own criteria rather than the Occupational Safety and Health

1
The highest roof had a pitch of "6 in 12," a vertical rise of
6 inches for every foot of horizontal run; the intermediate roofs'
pitch was one half-inch per foot.

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Administration's ("OSHA") requirements for deciding whether to use

fall protection gear for the men.

The inspection turned up various other problems--improper

scaffolding, lack of training, materials stacked close to the roof

edge, and rusty safety equipment. In due course, the agency

charged Capeway with nine violations; after an evidentiary hearing,

the administrative law judge ("the ALJ") imposed a fine of

$117,000, which the Commission upheld on review. In this court,

Capeway contests seven of the nine violations, the penalties

assessed, and the ALJ's handling of witness sequestration.

On judicial review, the Commission's orders are to be

upheld unless "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law," 5 U.S.C. § 706(2)(A) (2000).

Fact findings are sustained if supported by substantial evidence.

29 U.S.C. § 660(a). We begin with a central claim of procedural

error and then take up the specific citations in dispute one by

one.

Sequestration of witnesses. Capeway opens by claiming

that in his sequestration rulings the ALJ violated Rule 615 of the

Federal Rules of Evidence, made applicable by 29 C.F.R. § 2200.71

(2004). In essence, Rule 615 requires that, upon a party's

request, the presiding official exclude witnesses from the room "so

that they cannot hear the testimony of other witnesses" (and so

tailor their own testimony). There is an exception for an officer

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or employee designated to represent a party that is "not a natural

person." Fed. R. Evid. 615.

At the hearing in this case, Barletta and Holiday

testified to the violations, and the OSHA area director, Brenda

Gordon, testified about the penalties. Barletta went first and,

about halfway through his testimony, agency counsel asked for

sequestration of witnesses. Capeway's lawyer objected but the ALJ

ordered sequestration, adding that "the compliance officer can

stay"--an apparent reference to Holiday--and that any other

witnesses had to leave except that "[c]lients can stay here."

When Capeway's lawyer asked that other witnesses for the

agency also be sequestered, agency counsel said that Gordon would

be the only witness for the agency beside the inspectors, and that

she would be testifying about the penalties. The ALJ said that she

could also stay, and Capeway counsel objected. Gordon and Holiday

both stayed in the hearing as did Araujo, who did not testify. The

company's only witness was Barry Metzler, Capeway's safety

consultant, and it appears that he was sequestered.

In a footnote in its post-hearing memorandum, Capeway

said as to the sequestration issue only that Holiday had tailored

his testimony "to address the weaknesses" in Barletta's testimony.

In his decision, the ALJ replied (also in a footnote) that he

refused to strike Holiday's testimony because both Holiday and

Gordon could stay under Rule 615 and because Capeway failed "to

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identify even one instance" where Holiday's testimony was

"suspect." On review, the two-member Commission panel found any

error as to sequestration to be "harmless."

In this court, Capeway devotes to this issue ten pages of

its brief enriched by the usual rhetoric ("fundamental right to a

fair trial," "right to due process"). The agency denies that there

was any error at all, says that the issue was not properly

preserved, and finally says that any error would have been

harmless. We think that there probably was an error, although not

one of major proportions; that the waiver issue is muddled; and

that the error was patently harmless and does not deserve the fuss

being made about it.

Whether the agency designated Gordon or Holiday as its

representative (it is not clear that the agency formally designated

anyone), the bare language of Rule 615 suggests that only one of

them should have stayed. Conceivably the agency could argue that

Holiday was its representative and that Gordon, although also a

witness, was testifying to an unrelated matter; there is a hint

that the ALJ may have so viewed the situation. But we will assume

arguendo, in the company's favor, that Holiday should have left.

Nevertheless, there is no indication whatever that

Capeway was improperly prejudiced. The sequestration rule is

concerned primarily with falsification: for example, that the

second witness might testify to things he did not see but instead

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learned from the testimony of the first witness, or that he might

alter his testimony to conform to that of the first, thereby

strengthening it instead of undercutting it. See Fed. R. Evid. 615

& 1972 advisory committee note.

Capeway makes no effort whatever to show that this

occurred. Instead, it argues, with examples, that Holiday

"tailored" his testimony by addressing points helpful to the

charges against Capeway that Barletta had left out of his

testimony. But in the ordinary case this is not improper

prejudice: even if Holiday had been excluded, agency counsel would

have been free to ask Holiday questions thereafter to cover any

matters that Barletta had scanted or ignored.

It is often hard to prove actual prejudice where there

has been a failure to sequester; and without delving into problems

of burden of proof and the like, see 29 Wright & Gold, Federal

Practice and Procedure § 6244 (1997), we would be open to a

suggestion of prejudice where there was serious reason to believe

that it had occurred. In this instance, there is nothing to

suggest that Holiday lied and very little new that he added to the

agency's case.

This brings us to the violations found by the Commission.

Under the Act, the Secretary of Labor is required to adopt

workplace safety standards, 29 U.S.C. § 655 (2000); those relating

to "fall protection" at construction worksites occupy over 30 pages

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of the Code of Federal Regulations. 29 C.F.R. pt. 1926, subpt. M

(2004). The Act provides for civil penalties of up to $70,000 per

offense for "willful" or "repeat" violations; for other violations,

the cap is $7,000, and some penalty is required if the violation is

"serious." 29 U.S.C. § 666 (2000).

Lack of fall protection on the central pitched roof. The

agency imposed a fine of $63,000 on Capeway for willfully failing

to use physical safety devices for employees working on the highest

of the four roofs. The regulation invoked by the Commission

requires such safety devices (harnesses, guardrails, or nets) for

work on "steep" roofs six feet or more above "lower levels", 29

C.F.R. § 1926.501(b)(11) (2004); "steep" is defined as a roof with

a pitch greater than 4 in 12, and "lower level" is defined as any

surface onto which an employee can fall. 29 C.F.R. § 1926.500(b)

(2004). Along at least one edge, the roof in this case (with a

pitch of 6 in 12) was over 20 feet above the ground.

Capeway says that its use of safety monitors in lieu of

physical safety devices was permitted by a 1999 OSHA directive,

which apparently allows such an alternative for some "residential

construction." Although the relevant regulation does not define

"residential construction," 29 C.F.R. § 1926.501(b)(13), the

Commission ruled that under the directive the firehouse did not

qualify because (as is undisputed) the building's frame was made of

steel and concrete. By contrast, the directive says that

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 Residential construction is characterized by:

Materials: Wood framing (not steel or concrete);
wooden floor joists and roof structures.

Methods: Traditional wood frame construction
techniques.

OSHA Instruction STD 3-0.1A (June 18, 1999).

The special treatment for "residential construction"

appears to rest on the agency's view that a wood-based structure

may be a less sturdy platform for physical restraint systems like

guardrails and harnesses. Cf. 64 Fed. Reg. 38078, 38079, 38081-82

(July 14, 1999); 58 Fed. Reg. 16515, 16516-17 (March 29, 1993).

Given this rationale, argued by the agency, and the directive's

language expressly connecting "residential construction" to wood-

framed buildings, the Commission's decision is clearly sound--quite

apart from the deference due to the agency in reading its own

directive.

Capeway says that the workers were installing plywood,

tar-paper, and shingles on the top roof, which is a common

finishing for residential buildings, and that another contractor

had done the building itself. This is irrelevant. The language

just quoted ties "residential construction" status to the

underlying structural elements of the building. Given the asserted

rationale, this makes perfect sense. Whoever built the underlying

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structure, Capeway was exposing its own workers to a forbidden

risk. The agency cases Capeway cites do not salvage its position.2

As for the willfulness finding, the term is not defined

but we have equated it with awareness that the conduct violates the

regulation or, alternatively, reckless disregard for the rules.

See Brock v. Morello Bros. Constr. Inc., 809 F.2d 161, 163-65 (1st

Cir. 1987). In this case, Mello admitted to Barletta at the site

that he used his own judgment about whether the roof was steep

enough to warrant greater precautions instead of the pitch standard

in the regulations; and the company had been previously cited for

violating the same regulation. This is enough "substantial

evidence" to support the finding.

Capeway is mistaken in saying that a chance remark by

the Commission--that Capeway should have known that the residential

standard did not apply--shows that the Commission used a negligence

rather than a reckless disregard standard. It is also of no moment

that Capeway's safety consultant Barry Metzler said that he

believed that the residential standard applied; it plainly did not.

2
All three cases, Sec'y of Labor v. Latite Roofing & Sheet
Metal Co., Inc., 19 O.S.H. Cas. (BNA) 1287 (2000); Sec'y of Labor
v. Commercial Wall, Inc., 18 O.S.H. Cas. (BNA) 1380 (1998); Sec'y
of Labor v. Mlodzinski, 18 O.S.H. Cas. (BNA) 1954 (1999), deal with
an older version of the directive that does not describe the
structural characteristics of "residential construction" and is
therefore irrelevant. See OSHA Instruction STD 3-0.1A (June 18,
1999) (expressly cancelling prior version of directive).

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In all events, the willfulness finding rested solidly on the

admissions made at the site and on Capeway's history of violations.

Hardhats. The Commission fined Capeway $2,800 for

allowing workers to operate without hardhats when exposed to

overhead hazards. 29 C.F.R. § 1926.100(a) (2004). The company

says that photographs taken by the inspectors show that some

workers were wearing hardhats; but they also show that other

workers were not. Capeway says that those without hardhats may

have been working for other employers, but Barletta testified that

most of the workers on the roof, where Capeway alone was working,

had only put on their hardhats after the inspection conference

began.

As for exposure to overhead hazards, Capeway says that

there were no overhead hazards for workers already on the roofs.

Putting aside Barletta's view that the whole site was a hardhat

area, anyone climbing the ladders to the roofs was exposed to

falling objects (materials were in fact stored too close to roof

edges); the agency was arguably entitled to infer that those on the

roof not wearing hardhats when Barletta arrived had not worn them

on the climb; and one man was so photographed on his ascent.

Safety monitors. A $4,000 fine was imposed for failure

to use proper safety monitoring, whereby certain workers are

designated to see that others do not stray too close to the edge.

29 C.F.R. § 1926.502(h) (2004). Other weaknesses in monitoring

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aside, the Commission supportably found that at times Araujo was

the only monitor and was not (as required) on the same roofing

surface as the workers he was monitoring, and that even two

monitors could not adequately have watched work activities on all

four roofs. There is nothing to this claim of error.

Flat roof fall protection. The agency imposed a $28,000

fine for a "repeat" violation, meaning that a prior citation had

been issued for the same offense, because inter alia there was no

physical fall protection on the lowest roof--exposing workers to a

13-foot fall to the ground. 29 C.F.R. § 1926.501(b)(10) (2004).

Capeway had been cited three times in the prior three years for

violating the same regulation. Araujo admitted that on the workday

before the inspection, some work had been done on the lower roof

without such protection.

Capeway says in this court that Araujo's admission was

made only to Holiday and that Mello had told the inspectors that

the work on the lower roof had been completed two weeks before.

The Commission was entitled to credit Araujo's statement over

Mello's even if it were made only to Holiday (we have already

rejected the "gap-filling" attack); but as it happens the admission

was also made to Barletta (which the Commission overlooked).

Materials storage. In another "repeat" violation, the

Commission fined Capeway $8,000 for storing materials within six

feet of the edge of the lower flat roof despite the lack of

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guardrails. 29 C.F.R. § 1926.502(j)(7)(i). Capeway says that no

roofing work was being done on the lower roof (the regulation

applied to storage "[d]uring the performance of roofing work") and

that the materials were not being "stored" but were there only

temporarily, awaiting the arrival of transportation.

Roofing work was being performed on the site, even if it

was not occurring on the lower roof level. Certainly materials

stored too close to a roof edge could be toppled in various ways

and fall on workers below, whether or not roofing was being

conducted on the same level. We need not reach the agency's

further argument that its own regulations define "roofing work" to

include "storage," 29 C.F.R. § 1926.500(b), or the counter-argument

that this interpolation would effectively render the "[d]uring the

performance of roofing work" language a nullity.

As for the alleged "temporary" character of the storage,

the regulation cannot reasonably apply to materials in the process

of being moved over the side, but the Commission adopted no such

foolish reading. Rather, there is no evidence that such

transportation was in progress, even if Mello is credited in his

claim that the company planned to move the material sometime later

"that morning" when the moving equipment became available.

Lack of training. In a third "repeat" violation, Capeway

suffered a $6,000 fine for failing to train one of its employees--

David Hinchcliff--in fall protection. 29 C.F.R. § 1926.503(a)(1)

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(2004). Apart from its "repeat" status, the violation would not

have warranted so severe an award. The company did present

evidence of a training program, but the agency also showed that

Hinchcliff had not been properly trained.

Hinchcliff's statements to Barletta are perhaps

compatible with his having received some training; but in substance

he took Mello's view that certain precautions should be taken only

if the roof seemed too steep--hardly reflecting what the regulation

means by "adequate" training. On appeal, the company also claims

that Hinchcliff's out-of-court statement was hearsay, not binding

on the company; it may have been so, but the objection was not

made--nor the hearsay argument urged before the Commission--and is

so waived. 29 U.S.C. § 660(a). If the objection had been made,

the agency could have called Hinchcliff.

Defective equipment. Finally, the company says that the

Commission erred in upholding a citation (involving no financial

penalty) for its use of defective safety equipment. The photos

show that harness clips were extremely rusty and Holiday testified

that, when opened, one of the clips did not spring back to its

locked position. Capeway says that it cannot be criticized for

using the harness since the inspectors said that it was better than

nothing; but the citation, amply supported, is for failing to

remove defective equipment from service. 29 C.F.R. § 502(d)(21)

(2004).

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 Capeway's detailed and inventive 56-page opening brief is

an exercise in hopeless ingenuity. If the company had devoted the

same effort and skill in following OSHA's safety regulations,

everyone would have gained.

Affirmed.

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