steel are actions standard that are adopted by osha how those are interpreted so just fifty thousand dollars foot overview typically speaking under osha steel or action standard if an employee is working at fifteen feet or more they are to have their personal fall arrest  system attached and they are to be connected to the structure this case deals with what is commonly referred to as the connector exception you can assume we've read ok ok so connectors are people defined by the statute who are using hoisting equipment to land and connect materials well no it's they're using it there there's something about hoists using our voice and they are placing what to connect them where ok i'll talk to john to tell you about the what was happening in this particular case because it really is illustrated would be helpful to me i guess because this is so the way these are liberties so the way these buildings are constructed and we've all seen them driving down the highway you put in vertical steel structures then you put in cross members so there's a structural steel right and you do that in a sequence and you always work from back to front and you do that because the crane operator needs to have the clearest view of where he's putting these loads because you know as the preamble to the steeler action standard indicated it's pretty dangerous when these heavy loads are swinging you know when so in this particular case what had happened was they had  the st two base of a sequence what happens next is they load in structural steel decking they put it and they do that because at that point they put it there to stage it floor so it's air lock deck that they can pour concrete over over services so that's what was occurring at the time of this inspection the two individuals of the compliance officer witnessed weren't fact wearing their fall protection equipment and they both had but they called beamers on them but they were not connected to the structure they were landing the steel decking that was going to be staged and that was later going to be can i say for safety concern for why there's an exception for a place where people are connecting placing a connecting is the concern that when the placing is happening that the material might get out of line come out that they have to make a quick decision and already has more mobility correct so the testimony before this is standard is somewhat unique in that it was adopted through negotiated rulemaking process the court center rackets the steel erection negotiated rule making committee we my client actually had as its expert witness a union member who participated in the center act committee he testified before the ail j f k that the purpose of the connector exception the primary focus of it is to allow these guys who are between fifteen and thirty feet to have some discretion to untie when there's loads coming because they want the ability to move out of the way or what run they're placing and connecting how do you avoid the and connecting well i think i can i think i think the word and obviously the secretary is focused almost exclusively on it and i think i  think that's reading it too narrowly because quite frankly what is the difference if i'm landing a bundle of steel decking and that's not going to be attatched going to be staged there is no difference in the hazard to me as an iron worker then if i'm landing a two thousand tonne two thousand pound beam that is going to be connected but the hazards are the same then why i mean number one i think it's beyond our can to make that assessment about what's more dangerous than what's safe or you know i mean what we're pretty good at is figuring out what the words mean i mean obviously you have a great deal of expertise but if if what you just said was sort of the rationale why not say or you know and  each one is independently as long as you have an oist overhead independently reason to have then i think you can read it with and in the sentence when asked why would negotiated rulemaking why would they put in there  now in artful drafting you know and that's that's i think part of the problem here i do think you can read it with and in it it's hoist using hoisting equipment to place materials and using hoisting equipment to regulation so you know you know you're correct lawyer who is placing and connecting your correct it typically is it should be doing both the same type right you're always doing one or the other are typically done roughly the same time so i want to talk i think probably the most important piece of this case is this concept of fair notice well wait a minute you're good i think to follow up judge regulars point i mean so it can't be done at the same time but don't we have to construe this in a way that sort of makes them as close in time as practicable given that the language here seems does it has it really is suggesting some very close proximity i don't  think it is your honor and i think the ale jay struggled with that because the steel case and the sores steel case the facts were that the the material was being placed it was very clear that it was going to be attached later did not say when later was a later you know in the eighteen years since it's an act one thousand plus years and there has never been a single case that i'm aware of and i've scoured it for quite some time where an employer has been cited and it's been up firmed engaging in this activity all the legal analysis on this question goes the other way so you have sort of steel which was an administrative law judge who said hey if you're placing the decking or that it was angle iron in that case even  placed later you're engaged in connecting work those two thousand and four case then i think even more importantly you have this california opinion letter it's the same language exactly yes the california statute your own role so they can do what they want and they could read it in a crazy way if they want but it is a take on the same it is the exact same language you are and as i pointed out in the brief the preamble to the steeler x the federal stealer action standard actually mentions the california standard as an exemplary example of success in this connected connector exception is working effectively seems like there's a travel treasure trove of stuff in that preamble i think that's fair to say so so you have the source the o p s saying this is connecting work even if it's not going to be immediately attached then you have the california division of occupational safety and health interpret in the identical language and saying landing of structural steel decking staged to be placed later incidental to rest construction is connecting work for the process of the us that then you have a california case after that affirming that years of practice of the iron workers and what's interesting about this case and i do a lot of osha defense work we had the president of the international iron workers union the gentleman who was on the senate recommended and a number of local ironworkers come and testify all of them testified particular mr rank who was our expert that the president guy that you were just referred to correct so mr rank test was there is the president he is he currently is  he testified at the hearing that in the process of the center rock negotiation committee he personally created training materials that we presented at the hearing those training materials consisted of videos and other written presentations all of which clearly depicted the landing of decking with individuals not tied off to the structure didn't it do we have the videos or just so i believe you do they were submitted with the record and that training material specifically stated this doesn't necessarily mean it's complying with oh sure it does and i think that's probably a function of the iron workers lawyer but yes it does contain a disclaimer that says nothing in this should be a guarantee that  rights well it is what it says with mr franks testimony was that he met with osha personnel and his testimony was one contradicted that he met with those a personnel for two days going through this training that they vetted it they approved it and now it is rolled out to all of the local ironworker unions in the country and it still is now you say in your group that something like you said before which is it's  industry practice or customer or whatever is uniformly to the contrary agency's interpretation after all right so i mean what's your authority for that i mean what's the evidence that would allow us does he say on this point he testifies that all of the local unions in the country he testified that he travels around all of them use the training materials that he provided and that those training materials ballmer the l j in this case started to do trying to distinguish the sawyer case by saying well it doesn't say that they were maybe going to place a fifty minute later and that's ok or what if it was going to be a day is that ok i think that's a slippery slope but well i mean isn't it safe to say though two or three weeks is not ok for a meeting and placing a connecting stand while had a voice to sing so and i go back to the point is it this standard in the preamble make clear that it is focused on pre n preventing the hazards of an incoming load and that hazard is the same whether or not that load is going to be set on the deck for two weeks or whether it's going to be immediately connected does it i'm looking at the preamble the one you're but i think judge just pointed out perhaps reason to think there are two more not right one more well and i think that interpretation of the standard just ignores the practical realities of how these steel buildings are that your nose  they wrecked the structural steel in a huge i shaped steel that you see then they stage the decking in each of the areas so in this particular case they built the st floor of this building they staged  that area they built the roof they staged the decking which is when this inspection occurred and they do that throughout that they do not lay the decking it is the compliance officer everybody in this case was in agreement decking does not get attached exception for employees engaged in connecting work it's clear that like buildings employees did not meet the stereotyped mission as the court just heard the definition of connector within the regulation is quote an employee who working with hoisting equipment placing and connecting structural members and or components it's clear from the plain language of this text that in order to qualify as a connector you need to be both placing and connecting the structural member possible at the same time to do it at the exact same time would be physically impossible but and signifies doing it with some temporal proximity according to the opposing counsel when they place the decking they never connected simultaneously or contemporary so well we're not talking about doing it literally simultaneously you have to be shown in the videos but in placing the crane is lowering the steel decking and they are grabbing it and releasing it and given some temporal limitation and it did in the preamble well i think you know in the next before i get to the preamble though i say just to make one final point about the language it's a well established canon of statutory and regulatory interpretation that where an agency uses different terms throughout a regulation is presumed to have done so purposefully and intense give different meaning to those different terms now within the very  connector agents use the term and or they refer to structural members and or components it also uses the term and or throughout the regulation and if the agency had intended to say placing or it would have said placing or or used and or just as it did within that very same sentence always done and in hand and you can't connect with a place without placing something you place something because you're going to connect it so these are always done together that's seems to be quite natural understanding of it  given both the language and the industry practice sure was as we see in this case they're not always done together and when they're not the exception there's no reason to place unless you're going to connect your points are not done in the next day or two maybe three weeks but the only place to connect and you only connect because something's been placed right that is correct but but again with the plain language here if the agency had intent to say placing or connecting it would have said so if you i'm still back on the language if you place on monday and connect on tuesday on monday or tuesday are you placing connecting so the court does not need to actually define what the parameters of the temporal proximity would be in order to find that there is temp there needs to be temporal proximity and the th circuit in the compas if a case has found that temporal proximity is required without actually define the parameters of what is the answer this question it's very i think it would be the core of what would you say or if you're someone in the industry trying to understand how it thinks about this sure so then the preamble makes very clear as  judge gellman noted it says that connecting is placing components as they are received from a criminal and then connecting those components while the foisting equipment is still overhead suggesting that they need to be done in the i was not was not when the connecting happened was the hosting equipment in place no because here with the way they were staging it so the singer clement was in the south and they were starting they were placing with the crane in the northeast corner and they were moving south and so they were not going to connect until they finished that sequence and because of the topography of this building on the other side of the building there was a large slope and a pond and so they were not going to be able to bring the  equipment around so not only was the connecting happening weeks after the placing here but the horsing equipment was not going to be anywhere near the workers when they were doing the connecting piece so i thought this was your best argument which is what this is getting is that the placing is dangerous going to everything is dangerous to the placing has a special danger because you have a crane with big objects moving around and so that's going we can we afford some additional flexibility to the workers placing is completely done and there's no risk at all of injury from icing device or something then it should be sort of normal protocol but of that they're still but they're still in danger i just  a movement and not to tie off that being said there was there was evidence presented that one employee who was using the fall protection was hit by the horsing equipment and broke his arm whereas another employee was hit by the wheezing equipment that was not using the fall protection and died and so osha was grappling with a lot of somewhat contradictory evidence some showing that it is sometimes it is safer not to be tied off a bite other times they were shown direct example showing that well actually the person that was tied off broke their arm and the person that was not was killed and so using it expertise this is the osha carved out a very narrow exception here to the fall protection hazard trying to protect the most employees possible and as it reiterated time and again in the preamble the connector exception was supposed to be quote defined as narrowly as possible and very specific and and the agency went on to say that connecting is distinguished from other still erection activities by the elements in the definition now if you were to read the and between placing and connecting such that it means or you could effectively read connecting out of the definition of connector which not only makes little sense but it goes against the agency's express intention of requiring employees to meet workers union testifying arguably to that effect and meanwhile there's not a single enforcement case like this one pre teen years and presumably this isn't like you know the st time in eighteen years somebody has done this so why wouldn't there be maybe an argument along the lines of lowing or deaths would where the agency not withstanding the language just hasn't hasn't that industry practice actually varies widely and many employers testified and this is noted in the preamble that they require their employees to use full protection one hundred percent of the time no matter what the work they're engaged in and any time are six feet or more above the ground but the preamble to office back in two thousand and one right that's correct but we're talking i think he's talking about since this read went into place this is how they've understood it nobody is really getting penalize for that i mean why isn't if they can make that showing of widespread practice no one forced them why shouldn't they sort of you know be excused when they're the st one that's sort of surprised when they're  in in that case the secretary although the secretary did lose the secretary was making the same argument that placing is not is not connecting work so to the extent they want to say well we've looked to store you that will later be connected is not connecting work but we don't know what later means later could have met it sounds like later you know i mean it doesn't sound like the whole is there continuously that's not the vod i would give and i guess i'm just saying i mean i do have some sympathy for what they're saying you know that geez we're ironworkers who are not lawyers you know like we are reading it this way because we think this is what makes sense we should have some sympathy or no because again in this case it's always important to remember there but they're we're talking about the secretary interpreting and such that it means and the secretar interpretation is not only reasonable but the most logical interpretation that is backed up by the preamble impossible it's literally impossible for employees to be placing and connecting the same time this is a regulation or telling me it was so clear that so that's fair but then this gets us down the road of how do we interpret this and how clear is it and i don't think quite as clear maybe as secretary might think and what sort of notice just lot of questions here and love a lot of a lot of points can go the other way some going your favorite agree sure i know my time is almost out but if i could just address there again i think i would disagree that it suggests that it needs to be done at the very same time but to the extent to the extent there is any they're waiting equipment is overhead clarifies that the agency was focused on a process that had temporal proximity now with respect to the notice piece again so we are still isn't non presidential case and are not enough facts there for really to even be persuasive but i mean if we're talking about lake building products and the folks that are working out there that i mean the idea that the builders opinion is not precedential you know that's that's kind of a tough i think this charge them with with knowledge of an understanding that they're just trying to sort this out as best they can this is not the st time that they've been cited this was a repeat violation they've been saying very thing they have been cited i don't believe there's been a case where it was found where they went on to argue about the connector exception but they have been cited numerous times for failing to use full protection so this is an area with their knowledgeable with respect to the california decisions and again not only the decision from the california board of appeals just not relevant because that fails with california and not federal same words though the point is it's an educated thoughtful take on what those exact words mean by presumably responsible and careful government agency that's trying to achieve the same goals as the federal agency i know it's not legally you know sort of sure if the thing is even if that case were legally court or the california board went on to immediately discuss a different regulation that involved work that was not connecting because the employees there were not using cloistering equipment and so was clear that the work they were engaged in was not connecting work and so that statement don't i'm not disparaging the counsel for the secretary and you can see in the appendix at the time that the compliance officer arrived at this site the crane was up and moving the compliance officer testified and i believe this is in the record that he went over the crane operator was in the cab preparing to do more loads but he had stopped because the compliance officer where that would be in the record does that is i think it will be in our brief your honor i could find it but it would place if you have there more time so that was there there was i had a lock of an the crane was in place you can see it in the pictures have the clouds off for not showed up the next thing that would have happened was those steel bundles one of them placed and those guys would have moved over to connect structural steel more structural steel to would have come in so it just works in sequence and while they're working that crane is always moving while they're there and it's a particular important to them because they usually rent those cranes and they're paying through the nose so they want the crane going at all times once they're on to the address as one point as to the california o a i mean clearly it's the exact same language that's at issue in our case in california is widely known as one of the most strict safety programs in the country it was up it's cited in the preamble as the basis for the current federal standard we're talking about so for the for the bail judge just say well it's california that's irrelevant that's not true it does get a fair notice when you've got a california decision you've got an l j decision and you've got years of practice of doing this stuff how are you to know that any different how does the notice thing really how much i mean this wasn't a huge monetary well because the case law says that at the wal mart distribution case out of the thousand dollars well it's fussing over an industry that is very very i mean the are there was a reason that the president of the arm workers agreed to testify on behalf of my client but that's because the iron workers in general in industry in general are very concerned about the effect of this ruling that osha has now changed the game by adopting this litigation tactic when in reality all they had to do osha issues interpretation letters every day all they would have to do is write a guidance document or an interpretation letter saying hey to the extent there was any confusion landing of steel decking is not connecting work ok but i didn't do that many one thousand years but i mean they've kind of more or less done that now it does that  goes to the fair notice point i know but so they allowed if the eleven thousand got taken care of and you have a decision from the agency that says what that guidance would say is everything that kind of ok in this industry i think i think for my clients interests the citation shouldn't be upheld if osha decides after the fact hey we need to remedy this we're going to put out an interpretation letter of an yeah i think you have osha has curtailed the notice issue potentially that notice are you willing that's one driving at are you worried about notice which gets fixed probably in this litigation one way or another never have taken a clear position or are you worried about not being able to have workers up there are not that tied off whether we're really worried about both your honor my client is worried about notice my client came to me and said look i've done this for forty years and at least since this is the standards been in place since two thousand we've had inspections as the secretary pointed out they've have had inspections there have been fall of protection citations they have not contested those they didn't deal with connector work this was the st time in business that they had heard of this so they are they are concerned about the fact that hey why is it us that there all the sudden taking issue with what the industry itself is also concerned that hey we we read this connector exception to be focused on the dangers associated with poison overhead loads and if you take away those guys discretion while they're up there between fifteen and thirty feet we think that puts them at more risk all right well