United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2001 Decided December 11, 2001
No. 00-1497
Manganas Painting Company,
Petitioner
v.
Secretary of Labor,
Respondent
Petition for Review of an Order of the
Occupational Safety and Health Review Commission
Roger L. Sabo argued the cause and filed the briefs for
petitioner.
John Shortall, Attorney, United States Department of La-
bor, argued the cause for respondent. With him on the brief
were Joseph M. Woodward, Associate Solicitor, and Ann S.
Rosenthal, Attorney.
Before: Henderson and Tatel, Circuit Judges, and
Silberman, Senior Circuit Judge.
Opinion for the Court filed Per Curiam.
Per Curiam: Manganas Painting Company appeals the
Occupational Safety and Health Review Commission's deci-
sion that it violated the Occupational Safety and Health Act of
19701 by failing to adequately protect its employees against
falls when preparing a bridge for repainting. The Secretary
of Labor reasonably interpreted her own regulations, and
substantial evidence on the record as a whole supports the
Commission's findings, and therefore, we affirm.
I.
Manganas is a painting contractor that specializes in indus-
trial commercial painting. At its peak, the company em-
ployed approximately 35 employees. In 1992, Manganas was
the low bidder to the Ohio Department of Transportation to
sandblast, repaint, and make certain structural repairs to the
Jeremiah Morrow Bridge, a twin structure supported by
structural steel girders spanning an approximate two hundred
foot gorge which includes the Little Miami River. The EPA
and the Occupational Safety and Health Administration
(OSHA) required Manganas to equip the bridge with a device
to contain the lead-based paint being removed from the
bridge and with protection (such as a safety net) for employ-
ees exposed to the risk of falling. The Act and its implement-
ing regulations set forth a comprehensive scheme of fall
protection that applies in the absence of an industry-specific
scheme--OSHA has not implemented regulations specific to
the bridge painting industry, so the general fall protection
regulations applied to Manganas' bridge project. In 1993, an
OSHA Compliance Officer inspected the bridge, which Man-
ganas was in the process of preparing for environmental
containment and safety nets. At that time, the scaffold regula-
tion provided as follows:
__________
1 29 U.S.C. ss 651-678 (1994 ed. & Supp. V (2000)).
Guardrails and toeboards shall be installed on all open
sides and ends of platforms more than 10 feet above the
ground or floor, except needle beam scaffolds and
floats.... Scaffolds 4 to 10 feet in height having a
minimum horizontal dimension in either direction of less
than 45 inches, shall have standard guardrails on open
sides and ends of the platform.
29 C.F.R. 1926.451(a)(4)(repealed). The safety net regulation
provided:
Safety nets shall be provided when workplaces are more
than 25 feet above the ground or water surface, or other
surfaces where the use of ladders, scaffolds, catch plat-
forms, temporary floors, safety lines or safety belts is
impractical.
29 C.F.R. 1926.105(a).
After multiple inspections, the OSHA CO issued Manganas
several citations, three of which are on appeal.2 First, the
CO cited Manganas based on the employees' method of using
safety belts, which they were using while rigging the bridge
for safety nets. When they were working on the steel beams
of the bridge, and were exposed to falls upwards of 150 feet,
the employees would hook the metal safety hooks of their
safety belts to the portholes of the steel flanges that were a
part of the bridge deck structure: the metal hooks did not
close completely. The employees also used this method of
"tying off" their safety belts when ascending and descending
45 and 90 degree angle beams. Second, the CO faulted
Manganas' use of "painters' picks," which are lightweight
boards, approximately twenty inches wide and eight to twelve
feet in length. The painters' picks extended from the hand-
rail of a permanent catwalk running underneath the length of
the highway spanning the bridge, and rested on a cable
running horizontally along the outside of the bridge. Consid-
ering them to be scaffolds, the CO issued Manganas a citation
because they did not have guardrails. Finally, the CO found
__________
2 The CO issued several separate citations and an amended
citation, but only three violations are on appeal.
that a Manganas employee, Stillwell, had failed to tie his
safety belt off at all when he was in the process of securing
the painters' picks to the horizontal cable running along the
outside of the bridge.3 The CO characterized the safety belt
violation stemming from the open hooks as a "repeat" viola-
tion because Manganas had been cited previously for violating
the same standard.
Manganas challenged the citations and an Administrative
Law Judge held a three-day hearing, issuing a decision in
1996. The ALJ concluded that the painters' picks were
scaffolds requiring guardrails; that Stillwell had failed to tie
off when on the painters' picks; and that the safety belts,
with open hooks, did not provide adequate fall protection. He
rejected the Secretary's argument that the safety belt viola-
tion was a "repeat" violation. The Secretary petitioned the
Commission for review, arguing that it was; Manganas also
petitioned for review, arguing that the painters' picks were
not governed by the scaffold regulation and disputing the
ALJ's finding that the fall protection was inadequate. Four
years later, the Commission affirmed the ALJ's finding of
violations, but reversed his finding that the safety belt viola-
tion was not "repeat." Counsel explained that the delay was
a result of the Commission's inability to find two commission-
ers who could agree on the outcome of the case.
II.
Manganas argues primarily that the regulations in place in
1993, as opposed to more explicit subsequent regulations, did
__________
3 Manganas argues that the CO essentially double-counted the
same violation: that Stillwell worked on the painters' picks without
guardrails and without tying off. In oral argument, counsel for the
Commission clarified that the second citation for Stillwell's conduct
was for his failure to tie off while putting the pick in place, a
situation in which the guardrails would not have provided fall
protection. Counsel for the Commission also clarified that the
guardrails are a type of fall prevention, while safety belts arrest
falls that have already occurred, and that they are not necessarily
interchangeable forms of abatement.
not adequately proscribe the cited conduct. Because the
later regulations explicitly address the method of using safety
belts, the company reasons, it could not be cited for inade-
quate fall protection if the problem stemmed from the method
of use, rather than the type of protection. This argument is
without merit. We defer to the Secretary's reasonable inter-
pretation of her original regulation. In this case, the Secre-
tary has interpreted the safety net regulation to require
effective fall protection, an interpretation that certainly merits
deference--indeed, it seems obvious. It certainly is not so
unexpected as to violate Manganas' due process rights, as the
company argued. Substantial evidence, including courtroom
testimony and demonstrations, supports the Commission's
finding that Manganas' method of tying off was effective only
when the employees leaned back. In other words, the protec-
tion was not effective in many situations, and therefore
Manganas failed to provide adequate fall protection.
Petitioner makes a similar argument with respect to the
scaffold regulation violation. According to the company, the
painters' picks are actually catenary scaffolds, which subse-
quent regulations address as a separate category. The com-
pany's argument fails for two reasons. First, the Secretary
reasonably concluded that the painters' picks are not catenary
scaffolds, which are defined as platforms between two hori-
zontal cables--the painters' picks, by contrast, had one end
resting on a permanent catwalk while the other rested on a
horizontal cable. Second, even if the painters' picks were
catenary scaffolds, the Secretary reasonably concluded that
such scaffolds fell within the general scaffold regulation,
which required guardrails. The appropriate question is not
whether the regulations explicitly addressed the specific
method of safety belt use or guardrails on catenary scaffolds;
instead, the question is whether the Secretary's interpretation
of the safety net and scaffolding regulations as proscribing
the cited conduct was reasonable. It was.
The company also challenges the Commission's finding that
it had constructive knowledge of the violations, arguing that
the Commission imposed a constant supervision requirement
on the company, contrary to its own precedent. The record
does not support this argument. As to the safety belt
violation that stemmed from the non-closing hooks, Manganas
taught its employees to use that fall protection and cannot
now argue that it was unaware that its employees were
following directions. In addition, Manganas was clearly
aware that its painters' picks lacked guardrails. As to Still-
well's failure to tie off his safety belt while on the painters'
picks, his testimony made clear that Manganas was not cited
for an isolated incident. Instead, Stillwell's practice was to
walk across the painters' picks without tying off and to fasten
the painters' picks to the cable without tying off. The record
also makes clear that Stillwell was visible to his supervisor,
and was, in fact, periodically aided by his supervisor when
setting up the painters' picks. The Commission's finding that
Manganas should have been aware, or was aware, is sup-
ported by substantial evidence.
Finally, Manganas disputes that the Secretary carried her
burden of showing that the safety net violation was a "repeat"
one. According to Manganas, it was not enough that the
Secretary showed that Manganas twice violated the same
standard while painting bridges. But the Commission has
made it clear that the Secretary makes a prima facie showing
that a violation is "repeat" if the prior and present violations
are for failure to comply with the same standard. See, e.g.,
Potlatch Corp., 7 O.S.H.C. 1061 (1979). The burden then
shifts to the employer to demonstrate that the violations took
place under disparate conditions and hazards associated with
the separate violations, which Manganas did not do. The
company argued only that the first violation was for a failure
to provide any fall protection, the second for a failure to
provide adequate fall protection. This argument does not
show that Manganas did not commit a "repeat" violation of
the safety net regulation.
Accordingly, the Commission's decision is affirmed.