Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-17-2008
Blue Ridge Erectors v. OSHRC
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2475
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-2475
____________
BLUE RIDGE ERECTORS,
Petitioner
v.
OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION,
Respondent
____________
On Petition for Review of a Decision and Order
of the Occupational Safety and Health Review Commission
(OSHRC No. 04-1793)
____________
Submitted Under Third Circuit LAR 34.1(a)
January 7, 2008
Before: FISHER, HARDIMAN and ALDISERT, Circuit Judges.
(Filed: January 17, 2008)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Petitioner Blue Ridge Erectors (Blue Ridge) seeks review of the Occupational
Safety and Health Review Commission’s (OSHRC’s) decision not to direct discretionary
review of the Administrative Law Judge’s (ALJ’s) affirmance of several citations for
violations of the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C.
§§ 651–678. In particular, Blue Ridge challenges the citation issued pursuant to a steel
erection standard, 29 C.F.R. § 1926.760(a)(1), promulgated under the OSH Act. For the
reasons that follow, we will deny the petition for review.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
On the morning of March 24, 2004, Blue Ridge was performing work on a
gymnasium at West Orange High School in West Orange, New Jersey. There were six
men on Blue Ridge’s crew, two of whom were foremen. Robert Zawistowski was the
lead foreman, and Brian Woodall was the decking foreman.
Occupational Safety and Health Administration (OSHA) Compliance Officer
Patrick Nies began an inspection of the worksite after observing the Blue Ridge crew
installing steel decking on the roof of the partially constructed gymnasium. Prior to
entering the site, Nies observed and videotaped: (1) Woodall and crew member Tommy
McTague laying steel decking on the roof at 33 feet without wearing personal fall
protection; (2) McTague climbing a column and walking across open steel framing to
access the roof decking area at 30 to 33 feet without wearing personal fall protection; and
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(3) crew member Daniel Doolittle sitting on a steel beam and welding the structural roof
framing at 30 feet without wearing personal fall protection.
These observations prompted Nies to inspect the site and to interview Zawistowski
and Woodall, and each foreman then completed and signed a written questionnaire
summarizing his respective interview.
After the inspection, OSHA, as delegated by the Secretary of Labor, issued three
citations, which Blue Ridge contested. Following a five-day hearing in August and
September 2005, the ALJ affirmed, inter alia, Citation 2 Item 1 alleging a willful
violation of 29 C.F.R. § 1926.760(a)(1), and assessed a $56,000 penalty. The OSHRC
chose not to direct review, and the ALJ’s decision became the final order of the OSHRC
by operation of 29 U.S.C. § 661(j) on March 1, 2006.1 This timely petition for review
followed, and only Citation 2 Item 1 is at issue.2
II.
We have jurisdiction over the final orders of the OSHRC. 29 U.S.C. § 660(a).
The OSH Act requires that “findings of the [OSHRC] with respect to questions of fact, if
supported by substantial evidence on the record considered as a whole, . . . be
1
The remainder of this opinion will therefore refer to the OSHRC instead of the
ALJ when appropriate.
2
In particular, nothing in this opinion affects the Secretary of Labor’s unilateral
withdrawal of Citation 1 Item 2 after Blue Ridge filed the instant petition. That
withdrawal makes it unnecessary for us to formally vacate the OSHRC’s affirmance of
that item.
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conclusive.” Id.; see also Bianchi Trison Corp. v. Chao, 409 F.3d 196, 204 (3d Cir.
2005). Under the substantial evidence standard, we must uphold the OSHRC’s findings
of fact as long as there is enough evidence in the record for a reasonable mind to agree
with the OSHRC. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).
Further, “the ALJ’s credibility determinations should not be reversed unless inherently
incredible or patently unreasonable.” St. George Warehouse, Inc. v. NLRB, 420 F.3d 294,
298 (3d Cir. 2005) (internal brackets and citation omitted).
The steel erection standard at issue in this case requires Blue Ridge to protect its
employees working above 15 feet from falls. See 29 C.F.R. § 1926.760(a)(1). OSHA
regulations “should be liberally construed so as to afford the broadest possible protection
to workers.” E & R Erectors, Inc. v. Sec’y of Labor, 107 F.3d 157, 160 (3d Cir. 1997).
Blue Ridge raises three issues in its petition: first, whether the OSHRC’s finding
that Blue Ridge failed to provide fall protection equipment is supported by substantial
evidence; second, whether the OSHRC’s finding that Blue Ridge could have foreseen and
prevented the violative conduct is supported by substantial evidence; and third, whether
the OSHRC’s finding of willfulness is supported by substantial evidence. We answer
each of these questions in the affirmative.
First, we assume without deciding that because the citation at issue specifically
uses the word “provide” rather than “protect” in its allegations, OSHA was obligated to
establish that Blue Ridge failed to provide fall protection to its crew members, which is
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arguably more difficult to establish than the more general allegation that Blue Ridge
failed to protect its crew. See Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1164 (3d
Cir. 1980).3 Nevertheless, even proceeding under that assumption, we believe that there
was substantial evidence to support the OSHRC’s conclusion that Blue Ridge failed to
provide fall protection to its crew on March 24, 2004.
During the hearing before the ALJ, for example, the following exchange transpired
between the OSHA attorney and Woodall:
“Q: So that at the time Mr. Nies arrived on the construction site, you did
not have any harnesses and lanyard on the site, correct? Because the
truck had gone.
A: Yes.
Q: So that answer is true?
A: Yes, I did not have any.”
Indeed, the truck carrying the harnesses and lanyards normally available for Woodall’s
crew, to which the OSHA attorney alluded in the quoted exchange above, had already
departed for another site. Blue Ridge’s president also testified, as confirmed by Nies’
videotape, that although other types of fall protection, i.e., safety nets and guard rails,
were at the site, they were not yet erected. Blue Ridge’s defense focuses largely on the
crew’s choice not to request or seek out the one or two harnesses apparently still left at
the site. Besides Woodall’s own admission that these harnesses were “not for his crew,”
3
This assumption obviates the need to consider Blue Ridge’s due process argument
that OSHA was not permitted to penalize Blue Ridge for any violations beyond the
specific language of the citation, as well as the argument that OSHA has waived its ability
to amend the citation.
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however, Blue Ridge cites no law for the proposition that the employer’s duty to
“provide” fall protection in this context is satisfied by merely leaving a couple of
harnesses lying around to be “requested” or “sought out” by the workers themselves.
Without deciding the issue, we believe that such an interpretation undermines our
pronouncement in E & R Erectors that OSHA regulations should be broadly construed in
favor of worker protection. Under our deferential standard of review, then, the record
evidence as a whole amply supports the OSHRC’s conclusion that Blue Ridge did not
provide fall protection to its crew at West Orange High School on March 24, 2004.
Second, there was substantial evidence to support the OSHRC’s conclusion that
OSHA met its burden of showing that the violative conduct was reasonably foreseeable
and therefore preventable by Blue Ridge’s on-site supervisors. See Pa. Power & Light
Co. v. OSHRC, 737 F.2d 350, 357-58 (3d Cir. 1984). According to the questionnaire that
Zawistowski filled out, he knew of the 15-foot requirement for using fall protection when
installing steel decking. According to the similar questionnaire that Woodall filled out,
he also knew of the requirement. Despite this knowledge, Zawistowski and Woodall
neither prevented their crew from the violative conduct ex ante nor stopped them ex post
even after seeing them working on the roof deck without fall protection. Therefore, a
reasonable mind could agree with the OSHRC that both foremen supervising the West
Orange High School worksite on March 24, 2004, could have foreseen and prevented
their crew members from erecting steel on the roof without wearing fall protection.
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Third, substantial evidence supports the OSHRC’s determination that Blue Ridge’s
violation in Citation 2 Item 1 was willful. A willful violation of the OSH Act “constitutes
an act done voluntarily with either an intentional disregard of, or plain indifference to, the
OSH Act’s requirements.” Bianchi Trison, 409 F.3d at 208 (internal brackets, quotation
marks, and citations omitted). Whether a violation is willful is a question of fact. Id.
The ALJ made no fewer than four findings to support the willful classification. First,
employees at the job site were not wearing fall protection, and such protection was not
available to them there.
Second, Zawistowski and Woodall were aware that the fall protection was not
available, yet did nothing to remedy the situation. Blue Ridge responds that Woodall
inadvertently miscalculated the height of the roof when he performed the work without
wearing fall protection. This testimony, however, was found by the ALJ to be not
credible because of Woodall’s “supervisory status at the site and . . . his experience and
training.” This finding is not “inherently incredible or patently unreasonable.” St.
George Warehouse, 420 F.3d at 298. Even if Woodall’s testimony were found to be
credible, the citation was also based upon the conduct of other Blue Ridge employees,
and the ALJ considered a statement by Zawistowski that he knew the employees should
have been wearing the fall protection equipment but were not.
Third, Zawistowski and Woodall were aware of the pertinent steel erection fall
protection requirements as revealed in their completed questionnaires. Fourth, Blue
7
Ridge had been cited by OSHA on five prior occasions between 1996 and 2001 for failing
to comply with 29 C.F.R. § 1926.105(a), the steel erection standard applicable before
2001, so it was not unreasonable for the OSHRC to conclude that Blue Ridge
demonstrated its plain indifference to the subsequently promulgated standard by failing to
comply with it. See Dakota Underground Inc. v. Sec’y of Labor, 200 F.3d 564, 567 (8th
Cir. 2000). In sum, the determination of whether Blue Ridge acted willfully by
intentionally disregarding the requirements of 29 C.F.R. § 1926.760(a)(1) is a question of
fact, and the OSHRC’s resolution thereof in the instant case is supported by substantial
record evidence.
III.
For the foregoing reasons, we will deny the petition for review.
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