*District Judge of the Southern District of Texas sitting by

designation. 

 

129 C.F.R. § 1926.105(a) provides:

Safety nets 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. 

1

United States Court of Appeals,

Fifth Circuit.

No. 93-4913.

PETERSON BROTHERS STEEL ERECTION COMPANY, Petitioner,

v.

Robert B. REICH, Secretary of Labor and Occupational Safety and

Health Review Commission, Respondents.

July 21, 1994.

Petition for Review of an Order of the Occupational Safety and

Health Review Commission.

Before GARWOOD and EMILIO M. GARZA, Circuit Judges, and HEAD*,

District Judge.

HAYDEN W. HEAD, Jr., District Judge:

Peterson Brothers Steel Erection Company ("Peterson Brothers")

petitions for review from a final order of the Occupational Safety

and Health Review Commission (the "Commission") affirming a

citation issued under the Occupational Safety and Health Act, 29

U.S.C. § 651 et seq. This Court has jurisdiction pursuant to 29

U.S.C. § 660(a).

The citation was issued for a violation of 29 C.F.R. §

1926.105(a) after a Peterson Brothers employee, a "connector," was

killed from a fall on the job.1 Peterson Brothers was hired to
2

erect the structural steel framework for a seven-building IBM

complex in Austin, Texas in July, 1990. The construction was

performed two stories at a time. Connectors would install the

upright columns first. Crane operators would then raise the

horizontal beams for both floors being constructed in a Christmas

tree formation and hold them in position to be attached.

Connectors would temporarily secure each beam with two bolts.

Other employees, called "bolters," then followed to install the

remainder of the bolts.

Though the connectors wore safety belts while they worked,

they did not attach any safety lines, or lanyards, to their belts

in order to maintain the necessary mobility to perform their jobs.

The bolters used safety belts and lanyards to secure themselves to

the beams while they worked. After the bolts were tightened,

temporary floors were installed on every other level to protect

employees from falling into the interior of the structure. In

addition, a cable was installed around the edge of the floor to

protect the employees from perimeter falls. However, Peterson

Brothers did not install safety nets on the outside of the building

to protect against falls to the outside of the building.

Accordingly, all employees were protected against falling while

they worked, except the connectors were not protected from an

exterior fall.

During the process of securing the horizontal beams, a beam

suspended from a crane fell a short distance. Kevin Dean, one of

the connectors, was straddling a beam at the perimeter of the
3

building when the beam struck him. The beam knocked Dean from his

perch, and he fell 70 feet to the ground. After the accident, a

compliance officer conducted an investigation. As a result of the

investigation, a serious citation was issued to Peterson Brothers

for failing to install safety nets to protect connectors working on

perimeter beams as required by 29 C.F.R. § 1926.105(a).

Peterson Brothers contested the citation. After a hearing, an

administrative law judge found Peterson Brothers committed a

serious violation of § 1926.105(a), and affirmed the citation. On

April 27, 1993, the Commission affirmed the administrative law

judge's finding and assessed a penalty of $400.00. The Commission

held (1) Peterson Brothers had fair notice that § 1926.105(a)

applied to the steel erection industry, (2) the prima facie

requirements for establishing a violation of § 1926.105(a) were

satisfied, and (3) the use of safety nets was not infeasible due

either to impossibility of compliance or to the economic

infeasibility of using nets. On June 10, 1993, Peterson Brothers

petitioned this Court for review of the Commission's order and

challenges here each holding of the Commission.

I. Whether the Application of § 1926.105(a) Violated Peterson

Brothers' Due Process Rights

Peterson Brothers contends it had no notice that it was

required to install safety nets, and thus a citation based on a

failure to do so violates the company's due process rights. The

citation against Peterson Brothers would violate "the due process

clause of the [F]ifth [A]mendment if a reasonable employer in

[Peterson Brothers'] position would not have known that section
4

1926.105(a) required it to install safety nets." Corbesco, Inc. v.

Dole, 926 F.2d 422, 427 (5th Cir.1991). In other words, the

Secretary of Labor must prove that the company had actual or

constructive notice that § 1926.105(a) required it to install

safety nets. Id. The wording of a regulation establishing

"explicit, unambiguous safety precautions that employers must take

in specific situations" would satisfy the "reasonableness" test

without requiring the consideration of additional factors. Id.

(citing Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretary

of Labor, 674 F.2d 1177, 1186-87 (7th Cir.1982)). However, if the

language is not specific enough, other sources, such as industry

custom and practice, the injury rate for that particular type of

construction work, the obviousness of the hazard, and the

interpretation of the regulation by the Commission, may provide

adequate constructive notice. Id. (citations omitted).

The Secretary argues Peterson Brothers had adequate notice of

the safety net requirement. The Secretary points to Peterson

Brothers' contention that prior to the inspection in this case, it

read, and was familiar with, the decision in Peterson Brothers

Steel Erection Co., 13 O.S.H.Cas. (BNA) 1936 (Rev. Comm'n J. 1988)

(digest) ("Peterson Brothers I "). In Peterson Brothers I, the

Administrative Law Judge held that only the specific steel erection

standards, embodied in Subpart R of the regulations, applied to the

steel erection industry. In reaching that holding, the

Administrative Law Judge relied on two Commission decisions, which

were reversed on appeal to the Third and Eleventh Circuits. See
5

Brock v. Williams Enters. of Georgia, Inc., 832 F.2d 567, 573 (11th

Cir.1987); Donovan v. Adams Steel Erection, Inc., 766 F.2d 804 (3d

Cir.1985). The Secretary argues that because the Administrative

Law Judge cited that subsequent history of reversal in Peterson

Brothers I, Peterson Brothers had notice the Commission's position

was not reliable. The Secretary also contends that several

appellate cases holding that § 1926.105(a) applies to the steel

erection industry, which pre-dated the OSHA inspection of Peterson

Brothers' worksite, gave further notice that Peterson Brothers

could not reasonably rely upon the Commission's position. See,

e.g., L. R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664

(D.C.Cir.1982); Donovan v. Daniel Marr & Son, 763 F.2d 477 (1st

Cir.1985).

Peterson Brothers relies heavily on the Fifth Circuit's

decision in Corbesco to support its argument that a reasonable

employer in the steel erection industry would not have known it was

required to install safety nets pursuant to § 1926.105(a). In that

case, one of Corbesco's employees was blown off the flat roof of an

aircraft hangar and killed. As a result of the accident, the

compliance officer cited Corbesco for failing to install safety

nets. Corbesco contested the citation, arguing § 1926.105(a), as

a general regulation, "fails to give an employer notice that it

must use a safety net when its employees are working on the flat

roof of a large building, like an aircraft" hangar. Corbesco, 926

F.2d at 424. The Fifth Circuit expressed doubts as to whether the

wording of § 1926.105(a) is specific enough to give notice of its
6

requirements on its own. Corbesco, 926 F.2d at 428. However, the

Court ultimately held Corbesco had constructive notice of the

requirement to use safety nets because of other circumstances in

the case. Specifically, the Court held the Commission's frequent

holdings that the regulation requires an employer to provide a

safety net or one of the other enumerated safety devices in

circumstances like those at issue in Corbesco gave rise to a duty

to at least inquire whether the employer had to install safety

nets. Because the employer had constructive notice of the duties

imposed upon it, its constitutional rights were not violated.

Corbesco does not provide support for Peterson Brothers'

argument that a reasonable employer in the steel erection industry

would not know that § 1926.105(a) applies. The Court did not

address the issue of whether that general standard is preempted by

the specific steel erection industry standards, nor did it address

whether an employer in Peterson Brothers' position had sufficient

notice that § 1926.105(a) applied. In fact, the applicability of

§ 1926.105(a) was not in issue in Corbesco—the Court addressed only

whether § 1926.105(a), when applicable, gave adequate notice that

safety nets were required when working on a flat roof.

Peterson Brothers argues the following factors would lead a

reasonable employer to believe the installation of safety nets was

not necessary. First, until several months after the accident at

issue, the Commission maintained the position that the specific

steel erection standards were the only ones applicable to the steel

erection industry, see Secretary of Labor v. Bratton Corp., 1990 WL
7

201595 (O.S.H.R.C.1990), and that the general construction industry

standards were preempted by those specific standards. Second, the

industry custom was not to use perimeter safety nets and Peterson

Brothers was never cited for failing to use the nets, nor for

violating § 1926.105(a). Third, no connector working for Peterson

Brothers had ever fallen to the perimeter of a building being

erected. Finally, Peterson Brothers contends the Secretary

selectively enforced the standard, thus making it less likely a

reasonable employer would know of its applicability.

Though we acknowledge that, at the time the citation was

issued to Peterson Brothers, the Commission's position was unclear

as to whether the specific steel erection standards preempted the

general construction industry standards, we hold that other

surrounding circumstances gave Peterson Brothers adequate notice

that § 1926.105(a) applied. First, by the time the citation was

issued, several circuit courts had addressed the issue, holding

that the specific steel erection standards do not preempt the

general construction standards where the steel erection standards

provide no protection. See, e.g., L. R. Willson & Sons, Inc. v.

Donovan, 685 F.2d 664 (D.C.Cir.1982) (§ 1926.750(b)(1)(ii), the

specific steel erection standard, does not preempt § 1026.105(a),

the general construction industry standard, because §

.750(b)(1)(ii) specifies only measures for interior fall

protection; § .105(a) provides the only standard for exterior fall

protection); Bristol Steel & Iron Works, Inc. v. Occupational

Safety and Health Review Commission, 601 F.2d 717, 721 (4th
8

Cir.1979) ("The general safety standard dealing with personal

protective equipment found in 29 C.F.R. § 1926.28(a) complements

the Subpart R specific standards dealing with steel erection ...");

Brock v. Williams Enterprises of Georgia, Inc., 832 F.2d 567, 571

(11th Cir.1987) (because "Subpart R is not specifically applicable

to exterior falls from perimeter beams, it does not preempt Section

1926.105(a). Therefore, Section 1926.105(a) applies to the steel

erector industry"); Donovan v. Adams Steel Erection, Inc., 766

F.2d 804, 807-10 (3d Cir.1985) (the steel erection standards do not

deal with the particular hazard of an exterior fall from a

perimeter beam; accordingly, the specific standards do not preempt

the general requirement of safety nets found in § 1926.105(a)).

Second, as the Secretary pointed out, the opinion in Peterson

Brothers I should have put Peterson Brothers on notice that the

Commission's rulings in Williams Enterprises of Georgia and Adams

Steel Erection had been reversed. Finally, in 1981, the Fifth

Circuit applied § 1926.105(a)'s safety nets requirement to the

steel erection industry. See Cleveland Consolidated, Inc. v.

Occupational Safety and Health Review Commission, 649 F.2d 1160

(5th Cir. Unit B July, 1981). Accordingly, a reasonable employer

in the steel erection industry would have had adequate notice that

§ 1926.105(a) applied to the steel erection industry, and the

citation based on a violation of that regulation does not violate

Peterson Brothers' due process rights.

II. Whether 29 C.F.R. § 1926.105(a) Was Violated in This Case

 Peterson Brothers argues substantial evidence does not
9

support a finding of a violation of § 1926.105(a) in this case.

Section 1926.105(a) provides:

Safety nets shall be provided when work places are more than

twenty-five 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 are

impractical.

Because the company used safety belts and temporary flooring,

Peterson Brothers contends, safety nets are not required. The

company cites as support Brennan v. Occupational Safety and Health

Review Commission, 488 F.2d 337 (5th Cir.1973) and Brennan v.

Occupational Safety and Health Review Commission, 513 F.2d 713 (8th

Cir.1975).

The company misses the point of the citation. The citation

was directed at the hazard of an exterior fall facing connectors

working on perimeter beams. Though it is true that Peterson

Brothers installed temporary flooring and perimeter railing, and

that some employees used safety belts, the connectors preferred not

to use, and did not use, their safety belts with lanyards in order

to maintain their mobility. Transcript from O.S.H.R.C. hearing at

86. The company was aware of this preference and did not require

the connectors to use their belts, nor did the company use exterior

nets. Finally, one of the company's own witnesses, Bill Landfair,

testified that the connectors had no protection from exterior falls

while working on beams at the perimeter of the building.

Transcript at 127. Accordingly, the record clearly demonstrates

the company provided no protection against exterior falls for the

connectors. These facts establish a violation of § 1926.105(a).
10

See Williams Enterprises of Georgia, 832 F.2d at 572-73; see also

Marshall v. Southwestern Industrial Contractors and Riggers, Inc.,

576 F.2d 42, 45 (5th Cir.1978) ("Where the safety belts were not

"used' in any meaningful sense for a substantial portion of the

workday, and the employees were afforded no protection from a

dangerous fall, we are compelled by our holding in Southwestern

Contractors to defer to the Secretary's reasonable interpretation

that [§ 1926.105(a) ] requires the use of some means of reasonably

continuous fall protection").

Further, neither case cited by Peterson Brothers supports the

company's contention that its use of temporary floors and safety

belts by other employees provided the necessary protection from

exterior falls for the connectors. In Brennan v. Occupational

Safety and Health Review Commission, 488 F.2d 337 (5th Cir.1973),

the Fifth Circuit held § 1926.105(a) was not violated, despite the

failure to use safety nets, when a welder was working on a mobile

scaffold, and a hoist operator was attached to the hoist by a rope

tied around his waist. Clearly, that case does not support

Peterson Brothers' argument because the company in Brennan used

other safety measures listed as alternatives to safety nets in the

regulation to protect against the danger at issue in the citation.

In Brennan v. Occupational Safety and Health Review Commission, 513

F.2d 713 (8th Cir.1975), the Commission held the employees, who

were working on the roof and on scaffolding, were working on

temporary flooring and scaffolding within the terms of §

1926.105(a), and no safety nets were required. The Eighth Circuit
11

affirmed that interpretation as reasonable. Again, the employer

provided other safety devices enumerated in the regulation for the

employees at issue, thus making safety nets unnecessary under the

terms of the regulation. Both cases are distinguishable from the

facts at hand because the evidence clearly shows that Peterson

Brothers provided no alternative safety devices for the connectors.

The record contained sufficient evidence to hold Peterson Brothers

violated 29 C.F.R. § 1926.105(a).

III. Whether Peterson Brothers Established the Defense of

Infeasibility of Compliance

Peterson Brothers argues the evidence raised the defenses of

impossibility and economic infeasibility. The Secretary argues the

Commission's ruling that Peterson Brothers failed to prove a valid

affirmative defense is supported by the record and the applicable

caselaw. We may reverse the Commission's decision only if its

conclusions are "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law." Corbesco, 926 F.2d at 425

(citations omitted).

At the hearing before the administrative law judge, Peterson

Brothers introduced evidence that it would be technically

impossible to comply with the requirement that the nets be no more

than 25 feet below the work area. Specifically, an expert witness,

the former president of another large steel erection company,

testified that it would be impossible to erect the nets within two

stories of where the employees are working because the nets must be

supported from two stories above the nets. Because the connectors

were just beginning the construction on the level where the
12

supports would be attached, he testified, there would be nothing to

which the supports could be attached in order to protect the

connectors while they worked. Accordingly, the nets cannot be

erected closer than three stories below where the connectors

worked.

A compliance officer testified that because personnel safety

nets would not need to be as large as material nets used to catch

debris, personnel nets would not require the same amount of

support. The supports for personnel nets could be welded to the

edge of the temporary floor and extend straight out from that level

without support from above.

 The Commission acknowledged that the testimony of those two

witnesses created a fact dispute as to whether it was impossible

for Peterson Brothers to comply with the requirement that the nets

be within 25 feet of where the connectors were working. However,

the Commission declined to resolve the issue because "Peterson

Brothers must comply to the extent it can even if complete

compliance is not possible." Commission Decision at 14 (citations

omitted). That conclusion is supported by the caselaw: "A

technical defense, where some means of protection is available, is

not an excuse for disregarding safety precautions. The Secretary's

view, shared by the Commission, requires limited compliance where

it furnishes some protection, even if exact compliance is not

possible." Cleveland Consolidated, Inc. v. O.S.H.R.C., 649 F.2d

1160, 1167 (5th Cir.1981). According to even Peterson Brothers'

position, it would have been possible to erect nets three stories
13

below where the connectors were working, thus affording them some

protection from exterior falls. The Commission's conclusion that

Peterson Brothers did not establish the defense of technical

impossibility was not an abuse of discretion.

 Peterson Brothers also introduced evidence that it would be

economically infeasible to use perimeter safety nets.

Specifically, Peterson Brothers' president testified that using

perimeter nets would have greatly increased the cost of performing

the steel erection. He testified to an inexact estimate of what

nets would have cost on this steel erection. Despite the fact that

the sum was substantial, he testified his company had the resources

to absorb the costs on this project if required to do so. However,

he testified to his concern that the company would lose future

business because he would have to increase his bids to incorporate

the costs of using the nets, and his competitors, who do not use

the nets, would not have to increase their bids accordingly.

A standard is economically infeasible where "increased costs

would make the proposed substitute technology impracticable." A.

E. Burgess Leather Co. v. Occupational Safety & Health Review

Commission, 576 F.2d 948, 951 n. 2 (1st Cir.1978) (citing

Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 477

(D.C.Cir.1974)). The president of the company testified that

Peterson Brothers could have absorbed the costs on the project in

question. The company did not, however, introduce evidence of the

effect the use of the nets would have on the existence of the

company other than the assertion that the company could not
14

maintain competitive bidding because of the non-compliance of other

companies. An employer cannot be excused from non-compliance on

the assumption that everyone else will ignore the law. A. E.

Burgess Leather Co. v. Occupational Safety & Health Review

Commission, No. 12501, 1977 WL 6961, at *3 n. 2 (O.S.H.R.C. Feb.

24, 1977), aff'd, 576 F.2d 948 (1st Cir.1978). The Commission's

conclusion that Peterson Brothers did not present sufficient

evidence to find the installation of nets to be economically

infeasible is not an abuse of discretion.

Accordingly, the decision of the Occupational Safety and

Health Review Commission is AFFIRMED.