1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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1

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. 
2

 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). 
3

 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."
4

 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."
5

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. 
6

 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, 983 

F.2d 1252, 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, 

534 F.2d 541, 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, 499 U.S. 144, 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, 445 

U.S. 1, 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 
7

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, 223 

U.S. 442, 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 
8

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. 
9

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, 
10

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. 
11

 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 
12

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 
13

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, 31 

F.3d 32, 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 
14

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 

Constr., 31 F.3d at 34, 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 
15

defense, an employer must establish that compliance with a 

standard would result in greater hazards to employees than noncompliance, 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, 625 F.2d 1075, 1080 (3d Cir. 

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

hazard defense. Voegele Co., 625 F.2d at 1081. 

 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 
16

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 Co., 625 F.2d at 1080.
17

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.