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Donovan v. Adams Steel Erection Inc.

decided: July 5, 1985.


On Petition for Review from an Order of the Occupational Safety & Health Review Commission OSHRC No. 77-4238.

Author: Rosenn


ROSENN, Circuit Judge.

The petitioner, the Secretary of Labor (the Secretary), seeks review of a final order of the Occupational Safety and Health Review Commission (the Commission)*fn1 vacating two citations that had been issued to the respondent, Adams Steel Erection, Inc. (the Company) for alleged violations of the Occupational Safety and Health Administration (OSHA) regulations for the construction industry. See Adams Steel Erection, Inc., 11 O.S.H. Cas. (BNA) 2073 (Rev. Comm'n 1984). The first citation charged the respondent with permitting employees to work on the perimeter of a building without any protection against falls to the outside of the structure. The Commission vacated this citation upon concluding that the steel erection standard, 29 C.F.R. § 1926.750(b), which was not violated, was exclusive and preempted the general standard, 29 C.F.R. § 1926.105(a), under which the citation had been issued.

The second citation charged the Company with failing to ensure that its employees wore hard hats to protect against head injuries from impact and falling objects. See 29 C.F.R. § 1926.100(a). The Commission concluded that the Secretary must prove more than mere "access" to a zone of danger, and vacated this citation as well. We reverse the Commission with respect to both citations.


Respondent is a steel erector that in 1977 agreed to erect the structural steel frame for a four-story tiered building in Robinson Township, Pennsylvania. By October 20, 1977, steel beams had been erected to the forty-foot level. On that day, OSHA compliance officer Cammarata inspected the worksite. He observed two of respondent's employees working at the fourth level of this structure on parallel perimeter beams approximately 40 feet above the ground level. Metal decking had been installed as a temporary floor at the twenty-foot level. The workers were constantly in motion, moving back and forth from large building material containers to the edge of the beams, and from spot to spot. They were exposed to the danger of falling forty feet from the steel beams to the ground and suffering serious injury or death. Nevertheless, they were neither "tied off" with safety belts to the building nor protected by safety nets. Furthermore, they were not wearing hard hats to protect themselves against injury from impact or falling objects.

The inspector also observed and photographed a number of other employees on the forty-foot level moving building materials back and forth across the beams. These materials could have fallen to the third level below and possibly caused serious head injuries. The inspector also observed an employee at the thirty-foot level moving back and forth across a beam. This employee had no protection against exterior falls and he wore no hard hat to protect himself against potential head injury from impact or falling materials. Another employee at the third level was observed welding bar joists to the steel beams in the interior of the building. He too did not wear a hard hat.

One of the resulting citations alleged a serious violation of 29 C.F.R. § 1926.105(a) for failing to protect employees against falls of 25 feet or more by the use of safety nets.*fn2 The second citation alleged a non-serious violation of 29 C.F.R. § 1926.100(a) for failing to ensure that the Company's employees wore hard hats to protect against head injuries from impact and falling materials. The Company timely contested the citations and the ALJ held a hearing. He ultimately affirmed the section 1926.105(a) citation (concerning the failure to use safety nets) and imposed a $50 fine. He also affirmed the section 1926.100(a) citation (concerning hard hats), but imposed no penalty.

The Commission subsequently reversed the ALJ's decision and vacated both citations. The Commission held, first, that section 1926.105(a) is not applicable to fall hazards in the steel erection industry because the steel erection standards, 29 C.F.R. § 1926.750-.752 (Subpart R), are exclusive. The Commission also concluded that 29 C.F.R. § 1926.100(a) does not require hard hats where employees merely "have access to" areas where they could suffer a head injury. Commissioner Cleary filed a vigorous dissent.

The Secretary now seeks review of the Commission's decision. We permitted intervention by the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, and the Building and Construction Trades Department, AFL-CIO, in support of the Secretary's petition. The respondent, meanwhile, has filed no response to the Secretary's petition for review. Nonetheless, the respondent contested the Secretary's citations throughout the administrative proceedings and has yet to withdraw its contest of the citations. We thus conclude that "there is a continuing case or controversy warranting judicial review." Brennan v. Occupational Safety & Health Review Commission (Hanovia Lamp Division), 502 F.2d 946, 948 (3d Cir. 1974).


The first issue before this court is whether the Commission erred in ruling that the steel erection standards are exclusively applicable to all fall hazards, including exterior falls from perimeter beams, in the steel erection industry. Our standard of review is whether the Commission's decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971); Budd Co. v. Occupational Safety & Health Review Commission, 513 F.2d 201, 204 (3d Cir. 1975).*fn3 To determine whether an agency has acted arbitrarily or abused its discretion, the reviewing court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Volpe, 401 U.S. at 416. It is settled that where an agency departs from established precedent without announcing a principled reason for such a reversal, its action is arbitrary, see Local 777, Democratic Union Organizing Committee v. NLRB, 195 U.S. App. D.C. 280, 603 F.2d 862, 872, 882 (D.C. Cir. 1978), and an abuse of discretion, see Ameeriar v. INS, 438 F.2d 1028, 1039 (3d Cir.) (Gibbons, J., dissenting), cert. dismissed, 404 U.S. 801, 92 S. Ct. 21, 30 L. Ed. 2d 34 (1971), and should be reversed.

A common starting point in cases of this type is the proposition that general safety standards are not "preempted for an entire industry simply because some specific standards for that industry have been promulgated." L.R. Willson & Sons, Inc. v. Donovan, 222 U.S. App. D.C. 214, 685 F.2d 664, 669 (D.C. Cir. 1982); see also 29 C.F.R. § 1910.5(c)(2). At stake here is a citation issued under a general construction industry safety standard, 29 C.F.R. § 1926.105(a). This general standard requires that "safety nets . . . 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 platforms, temporary floors, safety lines, or safety belts is impractical." 29 C.F.R. § 1926.105(a). The more particularized "structural steel erection industry" standards, the relevant parts of which are set out in the margin,*fn4 overlap the general standard in some respects. See, e.g., Donovan v. Williams Enterprises, Inc., 240 U.S. App. D.C. 155, 744 F.2d 170, 179 (D.C. Cir. 1984) (noting that Commission vacated a section 1926.105(a) citation on ground that ...

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