* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

 

2 29 C.F.R. § 1926.500(d)(1) was revised and recodified at 29

C.F.R. § 1926.501(b)(1) in 1994. Citations in this opinion are to

the 1993 Code of Federal Regulations, which was in effect at the

time of the incident at issue here.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-60769

Summary Calendar

 

SUPERIOR CUSTOM CABINET COMPANY, INC.,

Petitioner,

versus

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

Respondent.

- - - - - - - - - -

On Petition for Review of an Order

of the Occupational Safety and Health Review Commission 

(Docket No. 94-0200, dated September 26, 1997)

- - - - - - - - - -

September 2, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Superior Custom Cabinet Company, Inc. (“Superior”) petitions

for review of an order of the Occupational Safety and Health Review

Commission (the “Commission”), which cited Superior for four

serious violations of construction standards under 29 C.F.R. §§

1926.20(b)(2), 1926.21(b)(2), 1926.500(d)(1),2 and 1926.1052(c)(1),

and imposed a penalty of $2,000. The Occupational Safety and
2

Health Administration (“OSHA”) issued the citation after a Superior

employee was killed as a result of falling from an unguarded

landing at a worksite while carrying a cabinet up a flight of

stairs. We DENY the petition for review and AFFIRM the decision of

the Commission. 

The citation alleged that Superior had committed serious

violations by: (1) failing to give employees adequate instruction

on the recognition and avoidance of unsafe conditions and

regulations applicable to their worksite, see 29 C.F.R. §

1926.21(b)(2); (2) failing to provide for the required inspection

of the worksite, see 29 C.F.R. § 1926.20(b)(2); (3) violating the

requirement that there be a guardrail on the stairs, see 29 C.F.R.

§1926.1052(c)(1); and (4) violating the requirement that there be

a guardrail on the landing, see 29 C.F.R. § 1926.500(d)(1). 

On review of an order of the Occupational Safety and Health

Review Commission, we are bound by factual findings if they are

supported by substantial evidence in the record, and we may reverse

the Commission’s conclusions only if they are “arbitrary,

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

with law.” See Corbesco, Inc. v. Dole, 926 F.2d 422, 425 (5th Cir.

1991) (quoting 5 U.S.C.A. § 706(2)(A)). Additionally, this court

has emphasized that 

[T]he Secretary’s interpretation of an OSHA regulation is

entitled to great deference. We have held that the

promulgator’s interpretation is controlling as long as it is

one of several reasonable interpretations, although it may not

appear as reasonable as some other.

Everglades Sugar Refinery, Inc. v. Donovan, 658 F.2d 1076, 1081
3

(5th Cir. 1981)(internal quotation marks and citations omitted;

brackets in original). With this standard in mind, we consider

Superior’s arguments regarding each of the violations in turn. 

First, Superior argues that the Commission has misinterpreted

§ 1926.21(b)(2) to require that safety training include more

specific instructions than those Superior provided its delivery

crews. Superior argues that the Secretary had the burden of

proving that its instructions were significantly less extensive

than a reasonably prudent employer would have given in the same

circumstances and that, because no evidence regarding other

employers was submitted, this burden was not met. According to

Superior, it would not be realistic for it to give specific

instructions to its crews regarding how to deal with every hazard

that might be encountered on their deliveries. 

Based on the testimony of several Superior employees, the

Commission found that the company’s instructions on avoiding

hazards left the employees too much discretion in identifying

unsafe conditions. We find that there was substantial evidence to

support the factual conclusion that Superior’s instructions left

employees with different ideas about when stairways without rails

are dangerous, and that its legal conclusion that this left the

employees with too much discretion in identifying unsafe conditions

was reasonable. Moreover, as the Commission pointed out, employers

must model their rules on the relevant regulations. See Secretary

of Labor v. El Paso Crane & Rigging Co., 16 BNA OSHC 1419, 1425 n.6

(and cases cited therein), 1993-95 CCH OSHD 30,231, 41,621 n.6 (No.
4

90-1106, 1993), 1993 WL 393508 at 12 n.6 (O.S.H.R.C.). It was

reasonable for the Commission to conclude that Superior’s general

instructions to avoid dangerous situations did not adequately

reflect the regulations that set out standards requiring guardrails

on stairs and landings, see 29 C.F.R. §§ 1926.1052(c)(1) and

1926.500(d)(1), and that no further analysis of what a reasonably

prudent employer would do was necessary to establish a violation.

This case is distinguishable from El Paso Crane, which Superior

cites for the proposition that an employer’s instructions may be

adequate though they leave employees discretion. In El Paso Crane,

the employer offered evidence of more extensive safety training and

a more persuasive argument as to why, given the type of work they

were engaged in, it was reasonable to give its employees discretion

to make certain safety decisions. El Paso Crane’s instructions to

its employees did not ignore the relevant federal regulations (in

fact, part of El Paso Crane’s training program involved giving

employees copies of the OSHA standards). In contrast, for Superior

to leave decisions regarding the use of unguarded stairways and

landings to the discretion of employees was directly at odds with

the relevant regulations. Superior’s argument that it could not

foresee and give specific instructions on every potential hazard

its employees might encounter cannot excuse it from not having

given specific instructions on the particular kinds of hazards for

which there are clear federal regulations that do not allow for

discretion. 

Next, Superior challenges the Commission’s holding that
 

3 Superior makes much of the fact that the delivery ticket

erroneously indicated that the cabinets were to go downstairs. It

offers no evidence, however, that the accuracy of the delivery

ticket was not its own responsibility. While the error on the

ticket might explain the failure to inspect the stairs and second

floor, it does not excuse that failure nor relieve Superior of its

obligations regarding inspection. 

5

Superior violated 29 C.F.R. § 1926.20(b)(2), which requires

employers to “provide for frequent and regular inspections of the

job sites, materials, and equipment to be made by competent persons

designated by the employer.” According to Superior, the Commission

erred by finding a violation on the basis of the conclusion that it

was unreasonable for the person who was supposed to conduct

inspections for this crew not to inspect the stairway or second

floor.3 Superior argues that the issue is whether it had

designated a competent person to make inspections, not whether that

person made a reasonable decision in this case about whether to

inspect upstairs. Superior offers evidence of the training and

background of the person it says was designated on this crew to

make inspections, and argues that it met its responsibilities under

the regulation by designating someone whose training and background

made it reasonable to believe he was competent. The Secretary

argues that the regulation requires that frequent and regular

inspections actually be made by competent designated persons, not

just that competent persons be designated to make them, and that

the Commission therefore properly found a violation when it

concluded that a competent inspection had not been made in this

situation. 

The Commission based its finding that it was unreasonable for
6

the designated person not to inspect the second floor on evidence

that the cabinets being delivered were for a master bathroom and

testimony that it was clear that the bathroom on the first floor

was not a master bathroom. This finding is supported by

substantial evidence. It is not clear from the Commission’s

opinion exactly how it construed the requirements of the

regulation. There are, however, reasonable interpretations of the

regulation that would allow the Commission to conclude from the

unreasonableness of the failure to inspect the second floor that §

1926.20(b)(2) had been violated. Accordingly, we affirm the

Commission’s holding that there was such a violation. 

Finally, Superior argues that it established the affirmative

defense of employee misconduct with respect to the alleged

violations of §§ 1926.500(d)(1) and 1926.1052(c)(1). It is

undisputed that the stairs and landing where the accident occurred

were unguarded. The Commission held that Superior failed to

establish two elements of the employee misconduct defense: that the

employer adopted work rules designed to prevent the violation, and

that the employer had effectively enforced the rules when

violations were discovered. On appeal, Superior argues that it had

adopted work rules designed to prevent the violations in question,

and had effectively enforced them. Its arguments on the first of

these points are essentially the same as those it raised in arguing

that its training and instructions were adequate. As discussed

above, those arguments are unpersuasive. Superior’s general

instructions to avoid unsafe hazards were not--as is required--
7

modeled on the relevant regulations. Those instructions therefore

were not adequately designed to prevent the violations of the

regulations that occurred. Because Superior has not shown that it

adopted work rules sufficient to establish the employee misconduct

defense, we need not consider whether its rules were effectively

enforced.

For the foregoing reasons, the petition for review is DENIED

and the decision of the Commission is AFFIRMED.