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Public Utilities Maintenance, Inc v. Secretary of Labor

March 29, 2011

PUBLIC UTILITIES MAINTENANCE, INC., PETITIONER,
v.
SECRETARY OF LABOR, RESPONDENT.



10-0123-ag

Public Utilities Maintenance, Inc. v. Secretary of Labor

SUMMARY ORDER RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUM M ARY ORDER"). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 29th day of March, two thousand eleven.

PRESENT: JOHN M. WALKER, JR., BARRINGTON D. PARKER, DEBRA ANN LIVINGSTON, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.

Petitioner Public Utilities Maintenance, Inc. ("PUMI") petitions this Court for review of a November 17, 2009, Decision and Order of Administrative Law Judge Covette Rooney ("the ALJ") of the Occupational Safety and Health Review Commission ("OSHRC"), which became a final order of OSHRC on December 31, 2009, when OSHRC declined to direct it for review. The order upheld a citation issued by the Secretary of Labor ("the Secretary") to Petitioner for violation of 29 C.F.R. § 1910.269(l)(2). On appeal, Petitioner claims both that the relevant regulation does not apply to it and that certain findings of the ALJ were not supported by substantial evidence. We assume the parties' familiarity with the underlying facts, procedural history of the case, and issues on appeal.

This Court "must affirm the Commission's findings of fact if they are 'supported by substantial evidence on the record considered as a whole.'" D.A. Collins Const. Co. v. Sec'y of Labor, 117 F.3d 691, 694 (2d Cir. 1997) (quoting 29 U.S.C. § 660(a)). "[S]ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Moreover, "[t]he Secretary's interpretations of her regulations are . . . entitled to 'controlling' deference unless those interpretations are 'plainly erroneous or inconsistent with the regulation.'" In re Novartis Wage and Hour Litig., 611 F.3d 141, 153 (2d Cir. 2010) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)). In particular, when "embodied in a citation," the Secretary's interpretation of her regulations "assumes a form expressly provided for by Congress" and therefore "is as much an exercise of delegated lawmaking powers as is the Secretary's promulgation of a workplace health and safety standard." Martin v. OSHRC, 499 U.S. 144, 157 (1991). The Secretary's "less formal means of interpreting regulations prior to issuing a citation," like agency enforcement guidelines, are "not entitled to the same deference" as citations but "are still entitled to some weight on judicial review." Id.

Petitioner's first contention is that its activities are not covered by 29 C.F.R. § 1910.269(l)(2), the regulation at issue in this case. The regulation, which "applies to work on exposed live parts, or near enough to them, to expose the employee to any hazard they present," 29 C.F.R. § 1910.269(l), provides that "[t]he employer shall ensure that no employee approaches or takes any conductive object closer to exposed energized parts than" the "minimum approach distance" ("MAD") - which is three feet for wires at the voltage involved in this case - of the energized part unless either the employee or the energized part is properly insulated. See id. § 1910.269(l)(2). The regulation states, however, that it does not apply to "construction work, as defined in § 1910.12 of this Part." Id. § 1910.269(a)(1)(ii). Petitioner contends that its work painting electrical transmission towers falls within the regulatory definition of "construction work" as "work for construction, alteration, and/or repair, including painting and decorating," id. § 1910.12.

The interpretation of the regulation advanced by the Secretary of Labor in the citation at issue here is not plainly erroneous or inconsistent with § 1910.269(l)(2). Indeed, it is consistent with OSHRC's longstanding interpretation of the regulatory definition of construction work as limited to "actual construction work or to related activities that are an integral and necessary part of construction work. Activities that could be regarded as construction work should not be so regarded when they are performed solely as part of a nonconstruction operation." B. J. Hughes, 10 O.S.H. Cas. (BNA) 1545, 1547 (OSHRC 1982). Thus, while painting performed as a part of a construction project would be considered construction, painting performed as maintenance, as the ALJ found was true of the work performed by Petitioner in this case, would not be. See Gulf States Utilities Co., 12 O.S.H. Cas. (BNA) 1544, 1546-47 (OSHRC 1985) (holding that the definition of construction work for this statutory subpart does not include maintenance work). While Petitioner asserts that the lack of an explicit reference to painters in the regulatory history of this standard is indicative of an understanding they would not be covered by it, extending coverage of this provision to employees tasked with painting energized electrical power transmission facilities is entirely consistent with the concern expressed in the regulatory history that "[e]mployees performing operation or maintenance work on electric power generation, transmission, or distribution installations are not adequately protected by current OSHA standards." Occupational Safety and Health Administration: Electric Power Generation, Transmission, and Distribution; Electrical Protective Equipment: Final Rule, 59 Fed. Reg. 4320, 4320 (Jan. 31, 1994).

Petitioner also claims that an OSHA directive, issued in 2003 to assist OSHA compliance personnel performing inspections at power generation, transmission, and distribution facilities, indicated that painting constituting "a complete repainting job . . . on a major portion of a structure" should be considered construction work. See OSHA Instruction, CPL 2-1.38 (June 18, 2003). Although the Secretary correctly notes that the same section of the directive expressly makes clear that "maintenance painting" is covered by § 1910.269(l)(2), the directive does clearly classify a "complete repainting job" as construction. However, the interpretation embodied in the Secretary's citation in this case is entitled to greater deference than the informal interpretation offered in the directive. See Martin, 499 U.S. at 157. Moreover, the directive, although it supports PUMI's position here, is itself inconsistent with other agency authority more directly applicable to the question before us. Thus, a publicly available opinion letter from OSHA's Directorate of Construction, issued on May 11, 1999, expressly addresses the question whether painting a power pole is maintenance or construction, stating that such work is maintenance, even if performed at ten to twenty year intervals, as in this case. See Letter from Russell B. Swanson, Director, Directorate of Construction, to J. Nigel Ellis (May 11, 1999). Indeed, despite the position it takes in this proceeding, PUMI's own safety guidelines required its employees to comply with § 1910.269(l)(2). Under these circumstances, we cannot say that the Secretary's interpretation of her own regulation is plainly erroneous or inconsistent with the regulation.*fn1

Petitioner next asserts that the ALJ's conclusion that it had constructive knowledge of the violative condition, an element of the Secretary's prima facie case of a violation, see N.Y. State Elec. & Gas Corp. v. Sec'y of Labor, 88 F.3d 98, 105 (2d Cir. 1996), was not supported by substantial evidence. An employer's knowledge or constructive knowledge of a violative condition can be "satisfied by proof either that the employer actually knew, or 'with the exercise of reasonable diligence, could have known of the presence of the violative condition.'" Id. (quoting Pride Oil Well Serv., 15 O.S.H. Cas. (BNA) 1809, 1814 (O.S.H.R.C. 1992)). In finding that Petitioner could, with the exercise of reasonable diligence, have known of the violative condition, the ALJ relied on the following facts: (1) that although Petitioner was aware that the tower on which the accident occurred posed a special danger due to the close proximity of energized parts to the tower frame to be painted, the company's supervisors did not themselves measure the distances between the frame and the energized parts to determine how close to the energized lines its employees would be working, (2) that the company instead gave the workers on the day of the accident only a general instruction regarding the MAD requirement and relied on them to determine if the tower was safe to paint, and (3) that despite the fact that Petitioner's own safety plan called for a safety observer to monitor each tower being painted, on the day of the accident a single foreman was responsible for monitoring both towers.

Petitioner does not seriously challenge any of the factual findings on which the conclusion that it failed to exercise reasonable diligence was based. It asserts first that the government failed to demonstrate before the ALJ that the accident victim, Carlos Mejia, came too near to the energized wires,arguing that this alleged failure was also relevant to whether the Secretary had shown its knowledge of the violative condition. However, it admitted that Mejia suffered an electrical shock while painting the tower, and there was testimony that the electricity at the voltage of the wires at issue here could jump at most one to two inches - far less than the minimum approach distance of three feet. It was also the initial conclusion of both Mejia's project manager and his foreman that Mejia had contacted or came within the MAD of the wire on the day of the accident.This evidence is clearly sufficient for a reasonable person to accept as adequate to support the conclusion that Mejia came within three feet of the energized tower part.

Petitioner also asserts more broadly that the ALJ's conclusion that it had constructive knowledge improperly seeks to fault it either for having its employees paint any part of an energized electrical transmission tower when one part of the tower is too near to an energized line or for not having taken "safety measures beyond those that are reasonable and feasible," N.Y. State Elec. & Gas Corp., 88 F.3d at 103. Here, however, neither the ALJ nor the Secretary before us claims that Petitioner should have prohibited its employees from painting the tower altogether. Rather, they*fn2 argue that in fact it could have taken other reasonable and feasible measures that would have alerted it to the violative condition at issue.

As the ALJ noted in this case, OSHRC has previously indicated that "reasonable diligence" for the purposes of constructive knowledge involves, among other factors, an employer's "obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence." North Landing Const. Co., 19 O.S.H. Cas. (BNA) 1465, 1472 (O.S.H.R.C. 2001) (quoting Frank Swidzinski Co., 9 O.S.H. Cas. (BNA) 1230, 1233 (O.S.H.R.C. 1981)). Here, the tower on which the injury occurred posed a special danger, given the particularly close proximity of energized parts to the tower frame being painted. Despite Petitioner's contention, there was substantial evidence for the ALJ's finding that, in spite of this special danger, the foreman on the day of the accident gave only a general instruction to the workers to be careful and to avoid getting too near the wires, without specifically mentioning the three-foot minimum approach distance requirement. While the foreman testified that he mentioned the specific three-foot distance on the day of the accident, the ALJ correctly noted that the two other painters who testified simply indicated that MAD had been discussed. Moreover, even if Petitioner's foreman had mentioned the three-foot requirement specifically, the employees were still in the position of assessing for themselves what parts of the towers were too close to the energized parts to be painted safely, with no measuring devices to aid in their assessment. As the Secretary notes, PUMI's safety plan itself called ...


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