                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                               NOT PRECEDENTIAL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



                                              2
(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.

                                              3
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



                                              4
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.

                                               5
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.



                                              6
       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.




                                             8
