Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-1997

E&R Erectors Inc v. Secretary of Labor
Precedential or Non-Precedential:

Docket 96-3276




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ____________

                             NO. 96-3276
                             ____________

                      E & R ERECTORS, INC.,
                                         Petitioner,

                                 v.

                         SECRETARY OF LABOR,
                                           Respondent.
                            ____________

   On Petition for Review of a Final Order of the Occupational
               Safety and Health Review Commission
                           ____________

   Submitted Under Third Circuit LAR 34.1(a)    January 10, 1997

       Before:   COWEN, ALITO, and ROSENN, Circuit Judges.

                             Filed February 20, 1997
                             ____________

John Philip Diefenderfer, Esquire
340 Harrisburg School Road
Quakertown, PA 18951
Counsel for Petitioner


J. Davitt McAteer, Solicitor of Labor
Joseph M. Woodward, Associate Solicitor for
  Occupational Safety and Health
Barbara Werthmann, Counsel for Appellate Litigation
Edward O. Falkowski, Attorney
U.S. Department of Labor
Room S-4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Counsel for Respondent

                            _____________

                         OPINION OF THE COURT
                             ____________


ROSENN, Circuit Judge.




                                  1
           E & R Erectors, Inc. ("E & R") has petitioned this

court for review of two citations and the accompanying penalty

imposed upon it by the Occupational Safety and Health Review

Commission ("Commission").   E & R argues that the Administrative

Law Judge ("ALJ") erred in finding that E & R was the responsible

employer on the worksite when the alleged violations occurred and

also erred in finding that there was sufficient evidence to show

that these violations did in fact occur.   Equally important is

the legal question raised by the Petitioner as to who bears the

burden of proof when an employer claims that compliance with an

Occupational Safety and Health Administration ("OSHA") regulation

would create a greater hazard that would excuse non-compliance.

The ALJ's decision ultimately became the final order of the

Commission.   We perceive no merit to E & R's numerous contentions

and, therefore, deny the Petition for Review.



                                I.

           On December 1, 1994, OSHA compliance officer George

Boyd inspected a construction worksite in West Conshohocken,

Pennsylvania, where a seven-story office building was being

erected.   The first three levels of the building were to serve as

a parking garage; the four highest levels were designed for

office space.   At the time of Boyd's inspection, four levels had

been constructed: the lowest three levels for parking and the

first office level (labeled B-1 in the blueprints).



                                2
               Immediately upon entering the site, Boyd observed that

the area surrounding the counterweight of a large crane had not

been barricaded or flagged off, as is required by federal

regulations.1         At the same time, Boyd saw an employee standing in

the counterweight's swing area.                      Boyd videotaped the area and

then introduced himself to the two employees operating the crane.

 One of the crane operators identified himself as an employee of

E & R.      Boyd told them that the area surrounding the crane's

counterweight had to be barricaded according to federal

regulations.         The employees immediately put up flagging around

the area.

               Boyd then proceeded to the construction building and

spoke with Fred Little, the superintendent on the job site for

the general contractor, John McQuade Construction.                             Little told

Boyd that the ironworkers on the site were employees of E & R.

Following this conversation, Boyd went to the B-1 level of the

building and spoke with two of the ironworkers working on this

level.      They introduced him to their foreman, who identified

himself as Mr. Brown, an employee of E & R.                         The foreman also

gave Boyd the address and telephone number of E & R Erectors, and

told Boyd that E & R employed an aggregate of 40 persons.



1. 29 C.F.R. § 1926.550(a)(9) states that: "Accessible areas within the swing radius of the
rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall
be barricaded in such a manner as to prevent an employee from being struck or crushed by the
crane."



                                                 3
              Boyd found that the ironworkers were installing large

steel columns on the B-1 level of the building, and the

installation process required that they stand near the edge of

the open-sided floor on that level while guiding the columns into

place.     Temporary guardrails had been constructed around the

perimeter of the level; these guardrails had been removed in the

area of the southeast corner of the structure for installation of

the columns.       The ironworkers told Boyd that they didn't use any

fall protection while installing the columns.2                                Boyd

estimated the distance from the B-1 level to the ground to be

between 29 and 33 feet; E & R insisted that the distance was only

24 feet.      Federal regulations require that fall protection be

provided if the distance is greater than 25 feet.3                       Therefore,

Boyd determined that E & R was in violation of these safety

regulations and that a citation should be issued for this

violation.

              On December 6, 1994, Boyd returned to the construction

site and witnessed a man walking through the area which had been
flagged off for the crane's counterweight swing radius.                          This man

introduced himself to Boyd as Walter Cantley, and informed Boyd

that he was E & R's superintendent.                 Cantley was also present at

2. While Boyd videotaped the installation of some columns at the worksite, he did not
videotape the installation of the beams for which the citation was issued.

3. 29 C.F.R. § 1926.105(a) states: "Safety lines 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 platforms, temporary floors, safety lines or safety belts is impractical."



                                             4
the closing conference held that day regarding the violations of

federal safety regulations.

             OSHA formally cited E & R on December 22, 1994, for

three violations of the Occupational Safety and Health Act of

1970, 29 U.S.C. § 651 et seq. ("OSH Act") and its accompanying

regulations.    The citation for one violation was subsequently

withdrawn.        E & R contested the two remaining citations and a

Commission ALJ held a hearing in September, 1995.

             The ALJ found that E & R was the responsible employer

at the site at the time of the violations and that sufficient

proof of the two violations had been established.     Therefore, the

ALJ affirmed both the citations and the proposed penalty (a $

3,000 fine).         E & R petitioned the full Commission for

discretionary review of the ALJ's order.     The Commission denied

review, and the ALJ's ruling became the final order of the

Commission, pursuant to 29 U.S.C. § 661(j).



                                 II.

             The Commission had jurisdiction to adjudicate this

matter pursuant to § 10(c) of the OSH Act, 29 U.S.C. § 659(c).

This court has jurisdiction over this matter pursuant to 29

U.S.C. § 660(a), which gives the circuit in which the violation

occurred jurisdiction to hear an appeal from the final order of

the Commission.




                                  5
          Under the OSH Act, the findings of the Commission with

respect to questions of fact shall be conclusive if supported by

substantial evidence on the record considered as a whole.       29

U.S.C. § 660(a); Martin v. Bally's Park Place Hotel & Casino, 

, 1256 (3d Cir. 1993).       Legal conclusions may be set

aside if they are arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with the law.      Atlantic & Gulf

Stevedores, Inc. v. Occupational Safety & Health Review Comm'n,

, 547 (3d Cir. 1976); 5 U.S.C. § 706(2)(A).       The

Secretary's reasonable legal interpretation of the OSH Act, a

statute the Secretary is charged with administering, is entitled

to deference.   Martin v. Occupational Safety & Health Review

Comm'n, 

, 150 (1991).      In light of the OSH Act's

broad remedial purpose, the Act and regulations issued pursuant

to it should be liberally construed so as to afford the broadest

possible protection to workers.       Whirlpool Corp. v. Marshall, 

, 12-13 (1980).



                                  A.

          E & R first challenges the sufficiency of the evidence

upon which the ALJ relied in concluding that E & R was on the

worksite and employed the ironworkers charged with these

violations.   E & R asserts that the ALJ credited hearsay

testimony over direct testimonial and documentary evidence, and

that the ALJ erred in so doing.       The ALJ, however, is entitled to



                                  6
consider all admissible evidence in reaching his factual

determination, and this finding will be sustained if there is

substantial evidence in the record as a whole to support it.

            E & R first asserts that OSHA failed to verify the

identity of the ironworkers on the worksite and that it therefore

has not satisfied its burden on this issue.      The only evidence

presented by the Secretary of Labor was the testimony of the OSHA

compliance officer, George Boyd.      Boyd testified that he inquired

who employed the ironworkers to determine the identity of the

responsible employer.    Fred Little, the general contractor's

superintendent, and Brown, the foreman of the ironworkers, both

informed him that the ironworkers were employed by E & R

Erectors.    Additionally, Boyd testified that he spoke to Walter

Cantley, E & R's superintendent, at the job site on December 6, a

few days after the alleged violations, and that Cantley was

present at the conference later that day relating to the

violations.    E & R is correct when it contends that this

testimony was hearsay evidence.       However, E & R failed to object

to this evidence at the administrative hearing and it was

therefore admissible as evidence.      United States v. Diaz, 

, 450 (1911) ("[W]hen [hearsay evidence] is admitted

without objection it is to be considered and given its natural

probative effect as if it were in law admissible"); Wigmore on




                                  7
Evidence § 18 n.1 (1983).4              Thus, this evidence has whatever

probative value that the ALJ, as the trier of fact in this

proceeding, reasonably accorded it.

              E & R responded to Boyd's testimony with three pieces

of evidence: payroll records, the subcontracting agreement, and

the testimony of Eugene Grossi, E & R's vice-president.                             As to

the testimony of Grossi, it was within the discretion of the ALJ

to determine how much weight should be given to the witness'

testimony, particularly in light of Grossi's admission that he

was not involved in the day-to-day operations of the company.

Therefore, Grossi's statement that E & R was not on the worksite

could properly have been considered less probative than the

statements of the general contractor's superintendent and the

ironworkers' foreman.

              The payroll records for the week of the alleged

violation show that none of the employees named by Boyd are

listed on E & R's payroll for New Jersey.                      Therefore, an employee

who was working in Pennsylvania, as was the case here, would not

be included in these records.                Thus, these records provide only

marginal evidence, if any, of E & R's assertion that these

ironworkers were not E & R employees.                    The subcontracting


4. In his decision, the ALJ stated that the hearsay evidence was admissible under Federal Rule
of Evidence Rules 801(d)(2)(D) (statements of party-opponent) and 803(1) (present sense
impression). E & R Erectors argues that the ALJ erred in these evidentiary rulings. However, E
& R did not object to these statements as hearsay at the hearing and therefore cannot now object
to the admission of this evidence.



                                               8
agreement states that the contract was awarded to Samuel Grossi

and Sons, Inc., of which Eugene Grossi was company president and

his brother vice-president, and had been subcontracted to

Bensalem Steel, owned by Grossi's son and niece.   Along with

corporate officers, these two companies share a common address

and telephone number with E & R Erectors.   Given the almost

transparent interplay of the companies involved in this matter,

the ALJ reasonably determined and found that the subcontract

would not outweigh the testimony of the OSHA compliance officer.

            The ALJ fairly weighed the evidence presented by E & R

against Boyd's testimony.   His determination that E & R was the

employer of the ironworkers on the jobsite at the time of the

violation was supported by the testimony of Boyd, the OSHA

compliance officer.   E & R's evidence was not conclusive on this

matter and does not compel a decision different than that reached

by the ALJ.   Therefore, the ALJ's determination that E & R

Erectors was the responsible employer on the job site is

supported by the record and therefore will be regarded as

conclusive for the purposes of this review.

            On the matter of who operated the crane, which provided

the basis for the second violation, Boyd testified that crane was

a Hawthorne crane and that the operator told him he was an E & R

employee.   E & R dismisses this testimony as hearsay, although

they did not challenge the evidence as such at the administrative

hearing.    To prove that the operator was not an E & R employee,



                                 9
Grossi testified that he was told that the crane belonged to the

Hawthrone Company and that it was being operated by Hawthorne

employees.    This testimony was objected to by the Government as

hearsay and this objection was sustained.

          E & R has failed to present any documentary evidence

establishing that the crane was owned/supplied by Hawthorne, much

less that Hawthorne employees operated the crane.    The only

evidence it presented as to identity, Grossi's testimony, was

objected to and sustained.    Thus, the only evidence before the

ALJ on the matter of the operator's identity was Boyd's hearsay

testimony.    Therefore, there is sufficient evidence on the record

to sustain the ALJ's finding that E & R was the responsible

employer for purposes of the violation of § 1926.550(a).     The

ALJ's finding that E & R was the responsible employer on the

worksite for purposes of the violations will be sustained.



                                  B.

             29 C.F.R. § 1926.105(a) requires that fall protection

measures be used when employees are working more than 25 feet

above the ground.    E & R asserts that the ironworkers were only

24 feet above the ground at the time of the alleged violation,

and therefore no violation of § 1926.105(a) actually occurred.

The ALJ found that the distance from level B-1 to the ground was

at least 25.5 feet, and affirmed the citation for this violation.




                                  10
 This factual finding is conclusive if it is supported by

substantial evidence on the record.

            In his decision, the ALJ referred to the blueprints for

the building.    According to the ALJ, the blueprints show that the

distance between level B-1 and the ground was at least 25.5 feet.

 He concluded that E & R erred in its reading of the blueprints,

which it read as showing a distance of only 24 feet, because it

failed to account for a 1.5 foot section of the structure.

            In addition to the blueprints, the ALJ had the benefit

of testimony of three witnesses on the matter of the fall

distance.    Boyd, the OSHA compliance officer, testified that the

distance was approximately 33 feet, because the area over which

the ironworkers were working at the time of the violation had

been dug out to create a loading dock.     He testified that he

studied the engineer's drawings at the construction site and

calculated the fall distance to be 29 feet.     He then added four

additional feet to the fall hazard to account for the area which

had been excavated to construct a loading dock.     He concluded

that this was a fall distance of 33 feet.

            Grossi agreed that the fall distance would have been

approximately 29 feet, but testified that there was a soil

overburden at the corner where the violation allegedly occurred.

 He testified that soil overburden would be five feet high, which

would leave only a 24 foot fall.      Grossi later testified that he




                                 11
himself had never been to the job site, having only viewed it as

he drove past it on the way to an area country club.

            A project manager for the architects, Michael

Spadafora, supported Boyd's testimony at the hearing.    Spadafora

testified, using the blueprints and the videotape of the scene,

that the area in question had not been backfilled at the time the

videotape was shot.    He testified that the fall distance would

therefore have been at least 29 feet at the time of the alleged

violation.

            Based upon the foregoing, the ALJ had substantial

evidence in the record to determine that the fall distance was at

least 25 feet at the time of the alleged violation.    The ALJ had

the blueprints and the testimony of two witnesses that the fall

distance was greater than 25 feet.     The only evidence to the

contrary was the testimony of Grossi, which the ALJ found not

credible.    There was substantial evidence on the record to

support the ALJ's finding that the fall hazard confronting the

ironworkers was greater than 25 feet.



                                  C.

             E & R further asserts that the OSHA compliance officer

"has the duty to bring all `greater hazard' defenses to the

Supervisor's attention, and that no Citation shall be issued if

the elements of an affirmative defense are present," citing 59




                                  12
Fed. Reg. 40684-85 as support.    In fact, this section of the

Federal Register actually states:
      OSHA has long acknowledged that there may be
          circumstances at a particular workplace which
          would make it unreasonable for the Agency to
          pursue a citation. In the enforcement
          context, OSHA has consistently placed the
          burden on the employer in question to
          establish any such circumstances as
          "affirmative defenses" to OSHA citations.
          The Agency has had considerable experience in
          evaluating employers' efforts to establish
          affirmative defenses (e.g., "impossibility"
          (sometimes also known as "infeasibility") and
          "greater hazard" defenses) to citations.
          Based on that experience, OSHA has developed
          Section V.E of the Field Operations Manual
          (FOM) to guide OSHA personnel in assessing
          those defenses.
      . . . Under Section V.E.3.d, an OSHA compliance
          officer who becomes aware that an employer is
          raising an affirmative defense is directed to
          gather pertinent information and to bring any
          possible defenses to the attention of his or
          her supervisor. That section further
          provides that a citation is not issued when
          OSHA determines that each and every element
          of an affirmative defense is present.


Under these guidelines, the employer may have an affirmative

defense to a charge of violating an OSHA standard that compliance

was impossible or infeasible.    Bancker Constr. Corp. v. Reich, 

, 34 (2d Cir. 1994).   The burden of establishing an

affirmative defense is on the employer, and every element of an

affirmative defense must be established to preclude issuance of a

citation.   A compliance officer is not obligated to prove the

employer's case; rather, the compliance officer's only obligation

is to gather pertinent information and bring it to the attention

of his or her supervisor when he "becomes aware that an employer


                                 13
is raising an affirmative defense."     59 Fed. Reg. at 40685

(emphasis added).   The burden, however, is on the employer to

establish the defense in the first place.     In this case, E & R's

simple assertion in their brief that "[t]he elements were

present" will not sustain this burden.

           E & R raises both an impossibility defense and a

greater hazard (infeasibility) defense on this appeal.    However,

E & R has clearly failed to establish the elements of an

impossibility defense before the ALJ or the compliance officer.

To establish an impossibility defense, the employer must show:

(1) that it would be impossible to comply with the standard's

requirements or that it would have precluded performance of the

work; and (2) that there were no alternative means of employee

protection available.   59 Fed. Reg. 40684.   E & R failed to

present any evidence to the compliance officer or the ALJ to

establish that it was impossible to comply with the safety

requirements; in fact, Grossi conceded that the use of lifelines

was feasible as a means of fall protection.    He asserted,

however, that this was an unsafe practice, arguing that it

presented a "greater hazard" than the risk of a fall.    "Avoidance

of a greater hazard is also an affirmative defense," Bancker

, which the employer has the burden of

proving.

           Despite Grossi's assertions, E & R has also failed to

establish a "greater hazard" defense.    In order to establish this



                                14
defense, an employer must establish that compliance with a

standard would result in greater hazards to employees than non-

compliance, that there are no alternative means of employee

protection available, and that a variance was unavailable or

inappropriate.    59 Fed. Reg. 40684; Voegele Co. v. Occupational

Safety & Health Review Comm'n, 

, 1080 (3d Cir.

1980).   All three elements must be shown to establish a greater

hazard defense.   Voegele 

.

            Grossi testified as to the risks presented by lifeline

entanglement and the limited mobility for the ironworkers "tied

off" in this manner.    Boyd, the compliance officer, testified

that the use of lifelines was a feasible and safe means of fall

protection if done properly.    Additionally, Boyd asserted that

the workers could wear lifelines while installing safety nets,

another means of complying with § 1926.105(a).

            The ALJ determined, after listening to the evidence,

that Grossi failed to establish that a "greater hazard" existed,

excusing his noncompliance with § 1926.105(a).     The ALJ found

lifelines could have been used during the installation of the

columns, and also could have been used while installing safety

nets.    The ALJ found that "E & R has not refuted the Secretary's

prima facie case that a practical means of fall protection was




                                 15
available."5        Therefore, the ALJ held that the greater hazard

defense was not applicable in the present matter.

               In fact, the burden is not on OSHA to prove that a

practical means of fall protection is available; rather, the

burden is on the employer to prove that one is not.                              E & R failed

to establish that compliance with the standard presented a

greater safety risk than the 25-foot fall would have.                               As noted

above, E & R also failed to present evidence that no alternative

means of protecting the ironworkers were available or that a

variance would have been inappropriate in this case.                              Thus, we

hold that E & R has failed to satisfy the burden required of them

to establish that compliance with the OSHA regulation constitutes

a greater hazard that would excuse non-compliance with the

regulation.        The ALJ's determination that there was no greater

hazard defense to this violation is supported by substantial

evidence on the record, and his legal conclusion is not arbitrary

and capricious, an abuse of discretion, or otherwise not in

accordance with the law on this matter.

               Additionally, E & R argues that they cannot be cited

under 29 C.F.R. § 1926.105(a) because OSHA imposed a moratorium

on citations under Subpart R, dealing with fall protection in

steel erections.           However, E & R was charged with violating 29

5. Additionally, E & R failed to assert that an application for a variance would have been
inappropriate in the present matter, nor did E & R establish that no other means of fall protection
were available. Therefore, E & R has failed to establish the greater hazard defense under the test
set forth by this Court. Voegele 

.



                                                16
C.F.R. § 1926.105(a) [Subpart E] in December of 1994; the

amendments moving this section into Subpart R were not effective

until February 6, 1995.   Therefore, neither the amendments nor

the moratorium on the enforcement of these amended regulations

has an impact on this case.

          OSHA committed no error in charging E & R with a

violation of § 1926.105(a) under Subpart E, which governs

"Personal Protective and Life Saving Equipment" for Construction.

 This section applied to all construction work, including the

steel erection industry, at the time the violations took place.

See 59 Fed. Reg. 40724 ("The requirements of § 1926.105(a) . . .

will continue to apply to steel erection of buildings until

Subpart R is revised.")   Therefore, no bar precluded enforcement

of this provision in the instant case and the citation charging E

& R with violating this section will stand.



                               III.

          For the foregoing reasons, the Petition for Review of

the Order of the Occupational Safety and Health Review Commission

will be denied.   Costs taxed against the petitioner.




                                17