A.J. McNulty & Co. v. Secretary of Labor

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 2002 Decided March 19, 2002

No. 00-1508

A.J. McNulty & Company, Inc.,
Petitioner

v.

Secretary of Labor,
Respondent

On Petition for Review of an Order of the
Occupational Safety and Health Review Commission

Arthur G. Sapper argued the cause and filed the briefs for
petitioner.

Ronald J. Gottlieb, Attorney, U.S. Department of Labor,
argued the cause for respondent. With him on the brief were
Joseph M. Woodward, Associate Solicitor, and Ann S. Rosen-
thal, Counsel. Charles F. James, Attorney, entered an ap-
pearance.

 Before: Ginsburg, Chief Judge, Randolph and Tatel,
Circuit Judges.

Opinion for the court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: Petitioner, a construction company,
challenges the Occupational Safety and Health Review Com-
mission's affirmance of a series of OSHA citations based on
the company's failure to comply with workplace safety regula-
tions. Petitioner also challenges the Commission's classifica-
tion of several violations as "willful." To the extent petitioner
has preserved its challenges for review, it has failed to
demonstrate that the Commission erred legally or that its
decision lacks substantial evidentiary support. The Commis-
sion's classification of some citations as willful presents a
closer question, but because this determination is also sup-
ported by substantial evidence, we reject those challenges as
well.

I.

The Occupational Safety and Health Act imposes a general
duty on employers to keep workplaces "free from recognized
hazards that are ... likely to cause death or serious physical
harm." 29 U.S.C. s 654(a)(1). Authorized by that Act to
promulgate and enforce workplace-safety regulations, see id.
s 655(b), the Secretary of Labor delegated most of her
authority to the Occupational Safety and Health Administra-
tion (OSHA), see 65 Fed. Reg. 50,017 (2000). OSHA compli-
ance officers regularly inspect workplaces. If they identify a
violation of safety regulations, OSHA issues a citation in one
of three categories: "not serious," for which a fine of up to
$7000 "may be assessed"; "serious," for which a fine of up to
$7000 "shall be assessed"; and "willful," for which a fine of at
least $5000 but not more than $70,000 "may" be assessed. 29
U.S.C. s 666(a)-(c). Employers may challenge citations, in
which case an administrative law judge conducts a hearing
and issues a decision. Id. s 661(j); 29 C.F.R. s 2200.90(a)
(2001). Employers may appeal adverse ALJ decisions to the
Occupational Safety and Health Review Commission. Id.
ss 2200.91-.92.

 Petitioner A.J. McNulty & Co. specializes in "precast con-
crete construction," in which huge, precast concrete slabs are
assembled to create walls, ceilings, and floors. Because the
concrete sections, known in the industry as "double-T's,"
weigh as much as forty tons and rise as high as three stories,
cranes are needed to lower them into place. As the crane
operator, who sometimes can see neither the double-T nor its
intended location, lowers the double-T into its approximate
position, McNulty employees use ropes to guide the slab into
its precise place. This process is dangerous, occasionally
requiring workers to move quickly to avoid an errant double-
T. Once a double-T has been properly positioned, McNulty
employees secure it by welding together steel plates embed-
ded in each piece.

In 1993, construction project manager Whiting-Turner
Contracting Co. began work on a ten-deck parking garage in
White Plains, New York. The company Whiting-Turner
hired to perform the concrete construction in turn subcon-
tracted with McNulty to install the double-T's. Shortly after
work commenced, Whiting-Turner issued written safety no-
tices to McNulty complaining about the company's failure to
protect employee safety. These notices, which Whiting-
Turner issues only if informal verbal notices have been ig-
nored, called attention to, among other things, McNulty's
failure to erect guardrails to protect workers from falling off
edges of recently-installed floor pieces. Representatives of
the two companies met to discuss the problem, but Whiting-
Turner once again issued written safety notices to McNulty
for continuing to expose employees to unsafe conditions.
After OSHA compliance officers surveyed the project, the
Agency cited McNulty for numerous willful violations of
workplace safety regulations that require construction compa-
nies to use guardrails or safety nets to protect workers from
dangerous falls. See generally 29 C.F.R. s 1926.105, id.
s 1926.500 (1994).

McNulty contested the citations. Following a hearing in
which an ALJ upheld the citations in all respects, McNulty
sought review before the Commission. The Commission af-

firmed the ALJ's findings, but reduced the classification of
some citations from "willful" to "serious."

McNulty appeals ten citations. The issues presented are
both numerous and complex, and McNulty's counsel did not
help matters by submitting a confusingly organized brief that
contained a completely uninformative statement of issues.
See Fed. R. Appellate P. 28(a)(5) (requiring a statement of
issues). Prior to oral argument, we directed McNulty to
submit a revised statement of issues, warning that we would
decline to consider the merits of any "issue not specifically
listed." Order of the U.S. Court of Appeals for the D.C.
Circuit at 1, A.J. McNulty & Co. v. Sec'y of Labor (Jan. 3,
2002) (No. 00-1508). Working from the company's revised
statement of issues and following the sensible organization of
the Secretary's brief, we consider the challenged citations in
three categories: (1) failure to construct guardrails around
"floor openings" and "open-sided floors"; (2) failure to con-
struct guardrails on narrow, elevated platforms; and (3)
failure to tie off adequately or otherwise secure workers using
a steel cage called a "man-basket."

II.

Familiar principles of administrative law govern our review
of the Commission's fact-finding and its application of law to
facts. Commission findings of fact stand if "supported by
substantial evidence on the record considered as a whole."
29 U.S.C. s 660(a); see also IBP, Inc. v. Herman, 144 F.3d
861, 866 (D.C. Cir. 1998). Its legal determinations stand
unless they are "arbitrary, capricious, ... or otherwise not in
accordance with law." 5 U.S.C. s 706(2)(A); see also Loew-
endick & Sons, Inc. v. Reich, 70 F.3d 1291, 1294 (D.C. Cir.
1995). We owe "substantial deference to an agency's inter-
pretation of its own regulations," which has "controlling
weight unless it is plainly erroneous or inconsistent with the
regulation." Thomas Jefferson Univ. v. Shalala, 512 U.S.
504, 512 (1994) (internal quotation marks and citations omit-
ted). In OSHA cases, there are two administrative actors:
the Secretary and the Commission. In Martin v. Occupa-

tional Safety & Health Review Commission, the Supreme
Court explained that because the Secretary, not the Commis-
sion, has authority to make enforcement decisions and to
render definitive interpretations of OSHA regulations, courts
owe "substantial deference" only to the Secretary's interpre-
tation. 499 U.S. 144, 151-57 (1991). We treat Commission
interpretations as "equivalent to [those made by] a 'nonpolicy-
making' district court." Molineaux v. United States, 12 F.3d
264, 267 (D.C. Cir. 1994) (quoting Martin, 499 U.S. at 154).

With these standards in mind, we consider the three cate-
gories of citations.

Floor Openings and Open-Sided Floors

OSHA issued these citations pursuant to two regulations.
The first requires that "[f]loor openings shall be guarded by a
standard railing ... on all exposed sides." 29 C.F.R.
s 1926.500(b)(1) (1994). OSHA cited McNulty for violating
this provision after compliance officers observed two instanc-
es in which the company failed to install guardrails along the
open edges surrounding the spaces where double-T floor
members remained to be installed on levels P-2 and P-5 of
the parking structure.

McNulty argues that the guardrail regulation is inapplica-
ble because at the time of the citation, the surfaces in
question were not "floors" within the meaning of that regula-
tion. Before addressing this contention, we must consider
whether, because McNulty raised this issue only in its brief
before the Commission and not in its petition for discretion-
ary review (known as a PDR), we lack jurisdiction under 29
U.S.C. section 660(a): "No objection that has not been urged
before the Commission shall be considered by the court [of
appeals]." See also Power Plant Div., Brown & Root, Inc. v.
Occupational Safety & Health Review Comm'n, 659 F.2d
1291, 1293 & n.3 (5th Cir. Unit B 1981) ("We have previously
characterized [29 U.S.C. s 660(a)] as a limit upon our juris-
diction."), modified and aff'd on reh'g, 673 F.2d 111 (5th Cir.
Unit B 1982); Athens Community Hosp. v. Schweiker, 686

F.2d 989, 992 (D.C. Cir. 1982) (courts may raise jurisdictional
issues sua sponte).

Resolving this issue requires an understanding of the Com-
mission's appeal procedures as well as of section 660(a). An
employer wishing to challenge an ALJ decision begins the
appeal process by filing a PDR with the Commission. 29
C.F.R. s 2200.91(b). The Commission may review any issue
raised in the PDR or, on its own motion, any other issue. See
id. If the Commission directs review, it ordinarily requests
briefs, hears oral argument (if it chooses), and then issues a
final order disposing of the matter. See id. ss 2200.93,
2200.95. If the Commission fails to direct review of an issue
within thirty days of the PDR's filing, the ALJ report be-
comes the Commission's final order. See id. s 2200.90(d).
Either way, the Commission's final order is reviewable in the
appropriate court of appeals, subject to the limitation that
courts of appeals lack jurisdiction over "objection[s] ... not
... urged before the Commission." 29 U.S.C. s 660(a).

According to McNulty, the phrase "urged before the Com-
mission" is broad enough to include raising an objection for
the first time in a Commission brief. In 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. See
Durez Div. of Occidental Chem. Corp. v. Occupational Safety
& Health Review Comm'n, 906 F.2d 1, 5 (D.C. Cir. 1990); see
also, e.g., P. Gioioso & Sons v. Occupational Safety & Health
Review Comm'n, 115 F.3d 100, 107 (1st Cir. 1997) (same).
We know of only one case that sheds light on the precise
issue here: What happens when the Commission agrees to
review an ALJ decision, and the employer, having failed to
present an objection in its PDR, does so in its Commission
brief? In Trinity Industries v. Occupational Safety &
Health Review Commission, 206 F.3d 539, 542 (5th Cir. 2000),
the Fifth Circuit held that an employer's failure to present an
essential objection in its PDR did not preclude judicial review
where the employer clearly raised that objection in its Com-
mission brief. According to the Fifth Circuit, requiring the

employer also to have raised the objection in its PDR would
"place form above purpose." Id. at 542.

In our view, the result reached by the Fifth Circuit is
equally appropriate in this case. To begin with, nothing in
the phrase "urged before the Commission" suggests that an
employer must raise every objection in its PDR; to the
contrary, an employer that presents an objection in its brief
has, by any understanding of the word, "urged" it before the
Commission. Indeed, when Congress wants to limit judicial
review to objections raised at a particular stage of the admin-
istrative process, it does so expressly. For example, the
Federal Power Act provides that "[n]o objection to the order
of the [Federal Energy Regulatory] Commission shall be
considered by the court ... [unless] urged before the Com-
mission in the application for rehearing." 16 U.S.C.
s 825l(b) (emphasis added); see also Platte River Whooping
Crane v. Fed. Energy Regulatory Comm'n, 876 F.2d 109, 113
(D.C. Cir. 1989) (interpreting this language to require that
petitioners seeking review of a FERC order must first "peti-
tion for rehearing of those orders and must themselves raise
in that petition all of the objections urged on appeal" and
emphasizing that "[n]either FERC nor this court has authori-
ty to waive these statutory requirements"). Permitting judi-
cial review of objections raised for the first time in Commis-
sion briefs, moreover, preserves the role Congress intended
the Commission to play in the OSHA review process. Section
660(a)'s review-limiting clause ensures that the Commission
has a fair chance to consider objections to ALJ decisions prior
to judicial review. See Power Plant Div., Brown & Root, 659
F.2d at 1293-94 (interpreting 29 U.S.C. section 660(a) to
require only that "the Commission be alerted to the issues
and have the opportunity to pass on them before a court
begins its review of the administrative process") (internal
quotation marks and citations omitted); cf. also United States
v. L.A. Trucker Lines, Inc., 344 U.S. 33, 37 (1952) ("[O]rderly
procedure and good administration require that objections to
the proceedings of an administrative agency be made while it
has an opportunity for correction in order to raise issues
reviewable by the courts."). Presenting objections in Com-

mission briefs achieves this end. To preclude judicial review
where McNulty has "put the Commission on notice of the
nature or basis for its challenge," Durez, 906 F.2d at 5, simply
because the company failed to include the objection in its
PDR would, indeed, "place form above purpose," Trinity
Indus., 206 F.2d at 542.

While McNulty has successfully preserved its claim that
the surfaces in question were not "floors" within the meaning
of the regulation, the argument lacks merit. Nothing in the
regulation suggests that the term "floors" applies only to
complete floors. On the contrary, the regulation expressly
"appl[ies] to temporary ... conditions where there is danger
of employees or materials falling through floor ... openings,"
29 C.F.R. s 1926.500(a) (1994), suggesting that it applies with
particular force to incomplete floors where yet-to-be-installed
double-T's create additional fall hazards. The ALJ decision
on which McNulty primarily relies, Spancrete Northeast, Inc.,
stands for the unremarkable and irrelevant proposition that
floors are incomplete until all double-T's are secured. 1981
WL 19242, *3 (ALJ Feb. 18, 1981) ("In precast concrete
construction, a 'floor' within the meaning of [the regulation] is
only complete when all the double T's constituting a level are
secured.").

McNulty's related argument--that the ALJ erred by ex-
cluding certain testimony about industry understanding of the
term "floor"--is waived. The company's only reference to
this argument appears in the section of its Commission brief
discussing willfulness. McNulty thus failed to give the Com-
mission notice that its objections to the ALJ's evidentiary
rulings related to the company's arguments about the mean-
ing of the term "floor."

McNulty next challenges the Commission's rejection of the
company's "infeasibility defense" to its failure to erect guard-
rails around floor openings. Although "[i]t is an affirmative
defense to a charge of violating an OSHA standard that
compliance was impossible or infeasible," Bancker Constr.
Corp. v. Reich, 31 F.3d 32, 34 (2d Cir. 1994), an employer
mounting such a defense must show not only the infeasibility

of compliance, but also that it either used alternative means
of protection or that such means were infeasible. In this
case, we need not consider McNulty's many arguments that
compliance with the regulation was technically infeasible, for
the record contains substantial, undisputed evidence support-
ing the Commission's conclusion that the company could have
installed alternative means of fall protection. OSHA's com-
pliance officer testified that "McNulty could have put free-
standing ... guardrails back from the edge where they would
not have interfered with installing the floor piece." A.J.
McNulty & Co., 19 O.S.H. Cas. (BNA) 1121, 1130 (O.S.H.R.C.
2000). Although McNulty claims that bolted-stanchion
guardrails would have interfered with installation of precast
concrete members, it never disputed, either before the Com-
mission or this Court, the compliance officer's testimony that
free-standing guardrails were feasible. McNulty also con-
tends that the Commission erred by imposing on it the
burden of proving the infeasibility of alternative methods of
fall protection. Not only is this claim directly contrary to
law, see Bancker Constr., 31 F.3d at 34; cf. 29 C.F.R.
s 1926.501(b)(2)(i) (2001) (placing burden on employer to
demonstrate infeasibility), but it too is waived, appearing in
neither the company's PDR nor Commission brief.

Equally unpersuasive is McNulty's argument that the Com-
mission erred by rejecting its "greater-hazard defense" to the
failure to install guardrails around the floor opening on level
P-2. Employers seeking to establish such a defense must
prove "(1) the hazards of compliance with [the] standard are
greater than the hazards of noncompliance, (2) alternative
means of protection are unavailable, and (3) a variance [(a
procedure by which an employer formally requests an excep-
tion from OSHA regulations)] was unavailable or inappropri-
ate." Dole v. Williams Enters., 876 F.2d 186, 188 (D.C. Cir.
1989). According to McNulty, workers erecting guardrails
around this particular floor opening would have been exposed
to dangers from the potential collapse of an unsecured
twenty-five-ton vertical wall member. As the Secretary cor-
rectly points out, McNulty mislabels this argument an infeasi-
bility defense. Even properly labeled, however, the defense

fails. McNulty points to no record evidence disputing the
Commission's finding that even if installation of guardrails
might have been hazardous, "McNulty could have installed
perimeter protection before bringing the elevated wall piece
up to the floor for installation." A.J. McNulty, 19 O.S.H.
Cas. (BNA) at 1133 (emphasis addded). According to McNul-
ty, this Commission finding "ignores [other] unrebutted testi-
mony" by the company's chief compliance officer that installa-
tion of such guardrails was infeasible because "employees
would have had to walk on a dangerously narrow flange to
erect the guarding." Pet'r's Opening Br. at 39. But that
testimony addressed only the feasibility of bolted-stanchion
guardrails; the Commission's decision rests on its finding
that the company could have used free-standing guardrails
that can be quickly installed and removed, and--as photo-
graphs in the record indicate--would not have required work-
ers to walk on the flange.

The other regulation involved in this category of citations
requires that "[e]very open-sided floor ... 6 feet or more
above adjacent floor or ground level ... be guarded by a
standard railing." 29 C.F.R. s 1926.500(d)(1) (1994). These
citations stem from the compliance officer's observation that
McNulty, having yet to install walls on levels P-2 (both north
and east sides), P-4, and P-5, had failed to erect guardrails
around the exposed edges of those floors.

Conceding it erected no guardrails on the north side of
level P-2, McNulty claims that the Commission should have
excused the failure because the violation occurred within the
"reasonable time" it was entitled to wait before installing
guardrails. Pet'r's Opening Br. at 36. We disagree. Not
only does the OSHA compliance officer's testimony suggest
that McNulty could have installed temporary free-standing
guardrails before beginning work in the area, see supra, but
the Act nowhere grants employers an undefined "reasonable
time" in which to bring workplaces into compliance. In fact,
we have expressly held that employers must install OSHA-
required fall protection before exposing employees to risk.
See, e.g., Am. Bridge/Lashcon v. Reich, 70 F.3d 131, 134 (D.C.
Cir. 1995). Section 9(a) of the Act, also relied on by McNulty,

is entirely inapplicable, for it governs the Secretary's authori-
ty to establish a reasonable "abatement period" within which
an employer, once cited, may correct the violation in accor-
dance with OSHA regulations. 29 U.S.C. s 659(a).

As to the east side of level P-2, McNulty offers a greater-
hazard defense, again claiming that erecting guardrails would
have subjected workers to the possible collapse of the twenty-
five-ton vertical wall member. But as indicated above, sub-
stantial evidence supports the Commission's finding that the
company could have erected free-standing guardrails before
installing the wall member. See supra at 10.

With respect to the citations for the open-sided edges on
levels P-4 and P-5, McNulty offers a greater-hazard defense
(also mislabeled an infeasibility defense). But because
McNulty never raised this objection either in its PDR or its
Commission brief, the company has waived the opportunity to
assert it here.

Open-Sided Platforms

This group of citations relates to McNulty's failure to
provide fall protection for employees working on several
narrow, open-sided platforms, known as "picks" or "planks,"
ranging in width from twenty inches to two feet. OSHA
regulations require that platforms located "6 feet or more
above adjacent floor or ground level ... be guarded by a
standard railing." 29 C.F.R. s 1926.500(d)(1) (1994). After a
compliance officer observed several instances where McNulty
used picks without guardrails, OSHA issued three citations.
McNulty challenges only one: the citation for its failure to
install rails on a pick spanning an "exhaust shaftway" on level
P-2.

The company first argues that the platform regulations are
inapplicable for two reasons: picks are temporary, whereas
the regulation applies only to "surfaces that are part of a
structure," Pet'r's Opening Br. at 40, and picks are not
platforms at all, but rather scaffolds subject to OSHA regula-
tions that prescribe specific safety standards for scaffolds, see

generally 29 C.F.R. s 1926.451 (1994) (establishing safety
requirements for scaffolds). The first contention is without
merit. As the Commission persuasively points out, not only
does the regulation expressly cover "temporary ... condi-
tions," id. s 1926.500(a), but controlling circuit and Commis-
sion precedent makes clear that the regulation applies to
temporary, narrow platforms such as the one at issue here,
see Donovan v. Williams Enters., 744 F.2d 170, 176 (D.C. Cir.
1984) (noting that guardrail regulations apply to temporary
platforms); Armstrong Steel Erection, Inc., 17 O.S.H. Cas.
(BNA) 1385, 1388-89 (O.S.H.R.C. 1995) (stating that tempo-
rary planks constitute "runway" requiring guardrails).

Responding to McNulty's second argument--that picks are
scaffolds, not platforms--the Secretary argues that section
660(a) deprives us of jurisdiction to consider the objection
because the company failed to raise it before the Commission.
Insisting that it did, McNulty argues that the issue "is
identical to the reasoning" in cases cited in its Commission
brief. Pet'r's Opening Br. at 40. This argument is doubly
flawed. First, merely citing a case falls well short of
"put[ting] the Commission on notice of the nature of or basis
for [a] challenge," Durez, 906 F.2d at 5, particularly where, as
here, McNulty cited the case for the unrelated proposition
that the guardrail regulation does not govern temporary
structures. As the Seventh Circuit explained, "simply citing
a case below in one context and then, on appeal, arguing that
the same case stands for something else does not preserve an
argument." Modern Drop Forge Co. v. Sec'y of Labor, 683
F.2d 1105, 1115 n.19 (7th Cir. 1982). Second, the primary
case on which McNulty now relies, Armstrong Steel, 17
O.S.H. Cas. (BNA) at 1388-89, appears neither in its PDR
nor Commission brief.

McNulty also presents an infeasibility defense to this cita-
tion, arguing in excruciating detail that it could not have
placed guardrails on a pick as narrow as the one at issue
here. As the Commission points out, however, "an employer
claiming that a platform was too narrow for guardrails must
establish that it could not have substituted a wider one." A.J.
McNulty, 19 O.S.H. Cas. (BNA) at 1133. The record, more-

over, supports the Commission's finding that "[n]one of
McNulty's witnesses testified that a wider platform could not
have been substituted for the narrow one being used." Id.
Put another way by the Secretary, even if installing guard-
rails on picks was infeasible, "McNulty had no right to use its
equipment as it found it." Resp't's Br. at 53-54 (internal
quotation marks omitted). See also Cleveland Consol., Inc. v.
Occupational Safety & Health Review Comm'n, 649 F.2d at
1160, 1166 n.11 ("An employer has a duty to plan a method of
construction that enables him to comply with OSHA regula-
tions if possible.").

Man-Basket

The "man-basket" at issue here was "a cage with horizontal
rungs down which the employee would climb to reach and
stand to bolt precast pieces together. The device was hung
on a concrete wall." Pet'r's Opening Br. at 47. After a
compliance officer observed a McNulty employee "accessing[,]
egressing, and working from" a man-basket without securing
himself with a safety belt, OSHA cited the company for two
violations of a regulation requiring that "when workplaces are
more than 25 feet above the ground," "[s]afety nets shall be
provided ... where the use of ladders, scaffolds, catch plat-
forms, temporary floors, safety lines, or safety belts is im-
practical." 29 C.F.R. s 1926.105(a) (1994). The Commission
affirmed these violations, though it reduced their severity
from "willful" to "serious."

Challenging both citations, McNulty argues that it com-
plied with the regulation because a man-basket is a scaffold
within the meaning of the regulation, and that the scaffold
(i.e., man-basket) provided the required fall protection. De-
spite the Secretary's suggestion to the contrary, McNulty
preserved this objection by raising it in its Commission brief
(though the Commission chose not to entertain the claim).
Moreover, the first element of the company's argument--that
a man-basket is a scaffold--finds some support in both the
record and OSHA regulations, see 29 C.F.R. s 1926.450(b)

(2001) (defining "scaffold" as "any temporary elevated plat-
form (supported or suspended) and its supporting structure
(including points of anchorage), used for supporting employ-
ees or materials or both"). Even if a man-basket is a
scaffold, however, the citation remains valid. Pointing out
that a man-basket provides no protection to workers entering
and exiting the basket, the Secretary interprets the regula-
tion to require such workers to use one of the listed alterna-
tive means of protection, such as safety belts, during these
brief but precarious moments. This interpretation comports
with decisions holding that the safety-net regulation "requires
protection against each discrete fall hazard, even if of short
duration." Am. Bridge/Lashcon, 70 F.3d at 134; cf. Manga-
nas Painting Co. v. Sec'y of Labor, 273 F.3d 1131, 1134 (D.C.
Cir. 2001) (upholding Secretary's interpretation of safety net
regulation to require effective fall protection as "reasonable
... indeed, ... obvious"). McNulty argues that as interpret-
ed by the Secretary, the regulation requires redundant forms
of protection: "both safety belts and a ladder or scaffold."
Pet'r's Opening Br. at 49. This mischaracterizes the Secre-
tary's position. She requires workers to use safety belts not
while working in a man-basket, but only while entering or
exiting it.

III.

Having sustained the Commission's affirmance of the ten
citations, we turn to McNulty's claim that the Commission
erred in affirming as willful the Company's failure to comply
with the two guardrail regulations. "Although the Act does
not define the term 'willful,' courts have unanimously held
that a willful violation of the Act constitutes 'an act done
voluntarily with either an intentional disregard of, or plain
indifference to, the Act's requirements.' " Ensign-Bickford
Co. v. Occupational Health & Safety Review Comm'n, 717
F.2d 1419, 1422 (D.C. Cir. 1983) (quoting Cedar Constr. Co. v.
Occupational Safety & Health Review Comm'n, 587 F.2d
1303, 1305 (D.C. Cir. 1978)). According to McNulty, the

Commission may find willfulness only where the employer
exhibits reckless disregard. All circuits that have considered
the issue, including this one, however, have long accepted
"intentional disregard or plain indifference" as the appropri-
ate standard for willfulness within the Act's meaning. See
Ensign-Bickford, 717 F.2d at 1422 (citing nine circuit court
cases embracing the "intentional disregard or plain indiffer-
ence" standard). McNulty points out that in McLaughlin v.
Richland Shoe, the Supreme Court interpreted the term
"willful" to require "reckless disregard." 486 U.S. 128, 133
(1988). Not only did the company waive this argument by
failing to raise it before the Commission, but McLaughlin
involves a different statute: the Fair Labor Standards Act.

Disputing neither its awareness of the guardrail regulations
nor its failure to comply with them, McNulty claims it be-
lieved in good faith that it had successfully established an
infeasibility defense to each violation. "[A] good faith, rea-
sonable belief by an employer that its conduct conformed to
the law negates a finding of willfulness." Sec'y of Labor v.
Keco Indus., 1987 WL 89096, *11 (O.S.H.R.C. March 27,
1987); see also McLaughlin v. Union Oil Co. of Cal., 869
F.2d 1039, 1047 (7th Cir. 1989) ("A violation is not willful
when it is based on a nonfrivolous interpretation of OSHA's
regulations."). Because good faith is a question of fact, see,
e.g., R.R. Comm'n of Tex. v. United States, 765 F.2d 221, 229
(D.C. Cir. 1985), the issue for us is whether the record
supports the Commission's conclusion that McNulty did not
possess a good-faith belief that it had established a legally
sufficient infeasibility defense to the guardrail violations.

With respect to McNulty's failure to erect guardrails on
open-sided platforms (picks), the Commission's observation
that the record contains "scant evidence of good faith," A.J.
McNulty, 19 O.S.H. Cas. (BNA) at 1140, seems generous.
Ample record evidence, including McNulty's own rule requir-
ing guardrails in areas of active construction, demonstrates
the company's heightened awareness of the need for fall
protection on these structures. Moreover, McNulty points to
no evidence that it believed guardrails on these particular
platforms to be infeasible; on the contrary, the record sup-

ports the Commission's conclusion that the company never
"studied the situation in advance and determined that guard-
rails would be a problem." Id. Finally, the record supports
the Commission's conclusion that McNulty never "made a
good-faith evaluation of the facts and actually found that the
platforms could not be wider." Id.

Whether the Commission erred in affirming as willful
McNulty's failure to erect guardrails around floor openings
and open-sided edges presents a closer question, but we
affirm this conclusion as well. In support of its determina-
tion, the Commission cited several pieces of record evidence,
including Whiting-Turner's safety notices regarding McNul-
ty's failure to install fall protection, McNulty's own safety
standards requiring guardrails, and most persuasively, two
"settlements" of the company's prior violations of the same
fall-protection regulations at issue here. Id. at 1139. As we
have held, prior citations for identical or similar violations
may sustain a violation's classification as willful. See, e.g.,
Cedar Constr., 587 F.2d at 1305. According to McNulty,
OSHA issued these prior citations under entirely different
circumstances (steel rather than precast concrete construc-
tion), but because this point appears for the first time in the
company's reply brief, we will not consider it. McBride v.
Merrell Dow & Pharms., Inc., 800 F.2d 1208, 1211 (D.C. Cir.
1986) ("Considering an argument advanced for the first time
in a reply brief ... is not only unfair to an appellee but also
entails the risk of an improvident or ill-advised opinion on the
legal issues tendered." (internal citations omitted)).

Finally, McNulty contends that the Commission acted arbi-
trarily and capriciously by failing to take account of the
company's reliance on various ALJ decisions that, according
to McNulty, gave rise to an objectively reasonable belief that
it need not comply with the guardrail regulations. Although
McNulty is right that the Commission failed to address the
company's reliance on these decisions, that failure does not
justify setting the decision aside, for we think the result
would have been the same even if the Commission had
considered the issue. See Envirocare of Utah, Inc. v. Nucle-
ar Regulatory Comm'n, 194 F.3d 72, 79 (D.C. Cir. 1999)

("[R]eversal and remand is 'necessary only when the review-
ing court concludes that there is a significant chance that but
for the error the agency might have reached a different
result.' " (quoting Henry J. Friendly, Chenery Revisited:
Reflections on Reversal and Remand of Administrative Or-
ders, 1969 Duke L.J. 199, 211)). Of the various ALJ decisions
on which McNulty claims to have relied, only Spancrete can
plausibly be read to create any exception to the guardrail
regulations. Even generously construed, however, Spancrete
stands only for the proposition that guardrails are not re-
quired at edges actively under construction. See Spancrete,
1981 WL 19242 at *3. So even if McNulty did rely in good
faith on the purported Spancrete exception, its reliance would
not alter the Commission's decision in light of the substantial
record evidence supporting the Commission's conclusion that
McNulty lacked a good-faith belief that these edges were
actively under construction.

The petition for review is denied.

` So ordered.