RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0139p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LAKE BUILDING PRODUCTS, INC.,

Petitioner,

v.

SECRETARY OF LABOR; OCCUPATIONAL SAFETY AND 

HEALTH REVIEW COMMISSION,

Respondents.

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No. 19-3212

On Petition for Review

of an Order of the Occupational Safety & Health Administration;

No. 16-1300.

Argued: December 12, 2019

Decided and Filed: May 6, 2020

Before: GILMAN, KETHLEDGE, and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: Andrew R. Kaake, WOOD + LAMPING LLP, Cincinnati, Ohio, for Petitioner. 

Jessica L. Cole, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for 

Respondents. ON BRIEF: Andrew R. Kaake, WOOD + LAMPING LLP, Cincinnati, Ohio, for 

Petitioner. Anne R. Godoy, UNITED STATES DEPARTMENT OF LABOR, Washington, 

D.C., for Respondents.

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OPINION

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KETHLEDGE, Circuit Judge. Lake Building Products, a steel-erection company, 

challenges the Occupational Safety and Health Review Commission’s conclusion that Lake 

>
No. 19-3212 Lake Building Prods. v. Sec’y of Labor Page 2

Building violated a regulation requiring certain workers to use equipment protecting them from 

falls. Although we agree with the Commission’s interpretation of the relevant regulation, we 

conclude on this record that Lake Building lacked fair notice of that interpretation. We therefore 

grant the petition.

I.

A.

At issue in this case is a safety regulation applicable to the construction of steel-framed 

buildings. As a building’s structure rises above ground level, cranes hoist and then swing into 

place loads of structural material that often weigh thousands of pounds. Workers engaged in this 

kind of construction—known as ironworkers—help to place these loads in precise positions on 

the building structure. Ironworkers also climb steel columns and move from point to point on 

elevated steel beams.

The Occupational Safety and Health Administration promulgates safety regulations 

applicable to the steel-erection industry. See 29 U.S.C. § 651(b). To that end, in 1994, OSHA 

established the Steel Erection Negotiated Rulemaking Advisory Committee, which included 

members “from labor, industry, public interests and government agencies.” Safety Standards for 

Steel Erection, 66 Fed. Reg. 5196, 5197 (Jan. 18, 2001). Those members then negotiated for 

18 months before recommending safety regulations for the steel-erection industry.

OSHA’s regulations generally require ironworkers to use fall protection whenever 

working above a height of 15 feet. See 29 C.F.R. § 1926.760(a)(1). But the Advisory 

Committee recommended an exception to that rule for workers known as “connectors,” who are 

specially trained to work with incoming loads from hoisting equipment. Ironworkers who 

appeared before the Advisory Committee “uniformly stated that they needed to remain 

unencumbered when they were working with hoisting equipment and some members recounted 

personal experiences where they were able to escape collapses and incoming steel only because 

they were not tied off.” 66 Fed. Reg. at 5246; see also id. (“The ability to move without restraint 

in order to get away from incoming loads is also stated as a reason for connectors not to tie off”). 

Accordingly, the final regulation exempted from the fall-protection requirement any 
No. 19-3212 Lake Building Prods. v. Sec’y of Labor Page 3

ironworker—at heights between 15 and 30 feet—who is working as a “connector,” which the 

regulation defines as “an employee who, working with hoisting equipment, is placing and 

connecting structural members and/or components.” 29 C.F.R. § 1926.751.

B.

Lake Building Products manufactures steel-framed buildings. In June 2016, in Akron, 

Ohio, two of Lake Building’s employees were working atop the steel frame of a partially 

completed building, 28 feet above the ground. The employees were wearing safety harnesses 

that, if anchored to the building, would prevent them from falling. But they had chosen to 

remain unanchored while they worked with a crane to place bundles of steel decking. Sometime 

later, the ironworkers would connect that decking to the building’s frame to form its roof. 

A compliance officer from OSHA saw the workers and thought that their failure to 

anchor their harnesses was a violation of OSHA’s fall-protection regulations. The on-site 

foreman disagreed, asserting that those workers were “connectors.” Yet the officer—who later 

acknowledged his own lack of experience with the steel-erection regulations, see Joint App. at 

224–25—wrote up a citation against the company anyway. Lake Building contested the citation, 

but an Administrative Law Judge upheld it on the ground that the workers were only “placing” 

the decking bundles—rather than “placing and connecting” them, 29 C.F.R. § 1926.751—and 

thus were not “connectors” as defined by the regulation. The Occupational Safety and Health 

Review Commission declined to review the ALJ’s decision, which made it a final order of the 

Commission. Lake Building then petitioned for review in this court.

II.

We review the Commission’s factual findings for substantial evidence. See 29 U.S.C. 

§ 660(a). We interpret the applicable regulations as we would a statute, and defer to the 

Commission’s interpretation only if a regulation’s meaning remains unclear after “exhaust[ing] 

all the traditional tools of construction.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (internal 

quotation marks omitted).
No. 19-3212 Lake Building Prods. v. Sec’y of Labor Page 4

The traditional tools answer the interpretive question here. The Occupational Safety and 

Health Act requires employers and employees to comply with OSHA regulations. 29 U.S.C. 

§ 654(a)(1)–(2). Here, the relevant regulation is 29 C.F.R § 1926.751, which, as noted above, 

defines a “connector” as an “employee who, working with hoisting equipment, is placing and 

connecting structural members and/or components.” Lake Building argues that the employees at 

issue were connectors because they were working with hoisting equipment to place structural 

members, namely the bundles of steel decking. Thus, according to Lake Building, an employee 

is a connector when he is either “placing” or “connecting” structural members. In effect, Lake 

Building reads “placing and connecting” to mean “placing and/or connecting”; the Commission, 

in contrast, reads the same phrase to mean that a worker is a connector only when he is doing 

both of those things.

Sometimes “[s]loppy drafting . . . leads courts to recognize that and in a given context 

means or[.]” Bryan A. Garner, A Dictionary of Modern Legal Usage 55 (2d ed. 1995). But 

ordinarily we read “and” to have a conjunctive meaning, which is the meaning the Commission 

assigns it here. See OfficeMax Inc. v. United States, 428 F.3d 583, 588 (6th Cir. 2008). And 

here the regulation uses both “and” (as in “placing and connecting”) as well as “and/or” (as in 

“structural members and/or components”) in the very same sentence, which shows that 

when OSHA meant “and/or” it knew how to say so. See, e.g., FTC v. Sun Oil Co., 371 U.S. 505, 

514–15 (1963); 29 C.F.R. § 1926.751. The regulation therefore requires that an employee be 

both “placing and connecting” to be a “connector.”

Lake Building points to several authorities beyond the regulation’s text to support its 

interpretation. First, the regulation’s preamble says that “an employee is a connector only when 

working with hoisting equipment.” 66 Fed. Reg. at 5203 (internal quotation marks omitted). 

But the regulation itself makes clear that “working with hoisting equipment” is only a necessary 

condition for a worker to qualify as a connector, not a sufficient one. See 29 C.F.R. § 1926.751.

Second, Lake Building cites two other administrative decisions. In one, an ALJ classified 

as a “connector” an employee who worked with hoisting equipment while placing components 

that would be connected “later.” Sawyer Steel Inc., 21 BNA OSHC 1196 (No. 04-0429, 2004). 

That is the same scenario that the ALJ described here. See Sec’y of Labor v. Lake Bldg. Prods., 
No. 19-3212 Lake Building Prods. v. Sec’y of Labor Page 5

2018 WL 7080226, at *4 (O.S.H.R.C. Dec. 13, 2018) (reciting that “[n]othing would be done 

with these decking bundles until later”). In the other decision, California’s Division of 

Occupational Safety and Health interpreted verbatim the same definition of “connector”—there, 

as set forth in California’s occupational-safety regulations—to have the same meaning that Lake 

Building assigns that definition here. See In re Anning-Johnson Co., Ca. OSHA Dkt. No. 

06-R1D3-1976, 2012 WL 470134 (Jan. 13, 2012). But the reasoning of those decisions provides 

no basis to construe the actual text of the regulation any differently than we have here.

What those decisions do support, however, is Lake Building’s argument that it lacked fair 

notice of the Commission’s interpretation of “connector” as used in 29 C.F.R. § 1926.751. See 

Ohio Cast Prods., Inc. v. Occupational Safety & Health Review Comm’n, 246 F.3d 791, 798–99 

(6th Cir. 2001). In determining whether an employer had “adequate notice” of the Commission’s 

interpretation of a regulation, we consider the following: whether the regulation is “inartful[ly]” 

drafted; “common understanding” of the regulation and “commercial practice”; and the “pattern 

of administrative enforcement.” Id. at 799. Here, the regulation’s drafting is indeed less than 

“artful” to the extent it requires that an ironworker be both “placing and connecting” a structural 

member to be a “connector.” Presumably an ironworker cannot do both of those things 

simultaneously. Thus, to honor OSHA’s use of the conjunctive “and”—while construing the 

regulation not to require an impossibility—one must require only a certain temporal proximity 

between the placing and connecting. (The ALJ expressly recognized as much. See Lake Bldg. 

Prods., 2018 WL 7080226, at *8.) Here, we need not determine exactly what that temporal 

proximity must be, since the decking bundles at issue were not connected until weeks later. See 

id. at *4. That the regulation could not mean what it literally said, however, did create 

uncertainty regarding what it meant; and Lake Building, unlike this court, was not required to 

“exhaust all the traditional tools of construction” to resolve that uncertainty. Kisor, 139 S. Ct. at 

2415.

Moreover, Lake Building did present significant evidence—including testimony from its 

expert witness, Steven Rank, who is the Executive Director of Safety and Health at the Iron 

Workers Union, and who was himself a member of the Advisory Committee that recommended 

this regulation—that industry practice is to regard ironworkers who are only “placing” structural 
No. 19-3212 Lake Building Prods. v. Sec’y of Labor Page 6

members or components of a building as “connectors.” Joint App. at 326, 329. And Rank 

further testified that the industry makes use of a training video (which Rank himself helped 

create) that depicts ironworkers placing bundles without anchoring their fall protection—which 

is to say that it depicts such workers as connectors. Id. at 349. In addition, as noted above, the 

only extant authority with respect to the meaning of the regulatory text at issue here construed it 

precisely as Lake Building did. Finally, in the 15 years between the effective date of this 

regulation and the citation at issue here—years in which, the record strongly suggests, many 

building companies and ironworkers read § 1926.751 the same way that Lake Building did—the 

Commission enforced the regulation the way that it did here only once. Indeed the Secretary 

impliedly admits as much. See Sec’y Br. at 42. And on that one occasion, the administrative law 

judge vacated that citation in Sawyer Steel. We therefore conclude that Lake Building did not 

have adequate notice of the interpretation that gave rise to the citation here. See, e.g., Diebold 

Inc. v. Marshall, 585 F.2d 1327, 1336–37 (6th Cir. 1978).

Finally, we acknowledge Lake Building’s emphatic argument—and the ironworkers’ 

testimony before the ALJ—that the Commission’s interpretation of § 1926.751 will only 

increase the hazards for ironworkers who are placing, but not yet connecting, structural members 

or components while “working with hoisting equipment.” But that dispute is one for resolution 

by OSHA or the Secretary himself.

* * *

We grant the petition and vacate the citation and penalty.