107 F.

3d 157
17 O.S.H. Cas. (BNA) 1903, 1997 O.S.H.D. (CCH)
P 31,252

E & R ERECTORS, INC., Petitioner,

v.
SECRETARY OF LABOR, Respondent.
No. 96-3276.

United States Court of Appeals,

Third Circuit.
Submitted under Third Circuit LAR 34.1(a)
January 10, 1997.
Decided Feb. 20, 1997.

John Philip Diefenderfer, Esquire, Quakertown, PA, 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, Washington, D.C., for Respondent.
Before COWEN, ALITO, and ROSENN, Circuit Judges.
OPINION OF THE COURT
ROSENN, Circuit Judge.

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.
2

On December 1, 1994, OSHA compliance officer George Boyd inspected a

construction worksite in West Conshohocken, Pennsylvania, where a sevenstory 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).

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.

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 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.
10

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.

11

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. 5 U.S.C. 706(2)(A); Atlantic & Gulf Stevedores,
Inc. v. Occupational Safety & Health Review Comm'n, 534 F.2d 541, 547 (3d

Cir.1976). 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,
111 S.Ct. 1171, 1175-76, 113 L.Ed.2d 117 (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, 100 S.Ct. 883, 890-91, 63
L.Ed.2d 154 (1980).
A.
12

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 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.

13

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. Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 251-52, 56
L.Ed. 500 (1912) ("[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 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.

14

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.
15

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 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.

16

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.

17

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,
Grossi testified that he was told that the crane belonged to the Hawthorne
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.

18

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.
19

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. This factual finding is conclusive if
it is supported by substantial evidence on the record.

20

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.

21

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.

22

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 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.

23

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.

24

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.
25

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
Fed.Reg. 40684-85 as support. In fact, this section of the Federal Register
actually states:

26

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.

27

... 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.

28

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 or she
"becomes aware that an employer 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.

29

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.

30

Despite Grossi's assertions, E & R has also failed to establish a "greater hazard"
defense. In order to establish this 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. Voegele Co. v.
Occupational Safety & Health Review Comm'n, 625 F.2d 1075, 1080 (3d
Cir.1980); 59 Fed.Reg. 40684. All three elements must be shown to establish a
greater hazard defense. Voegele Co., 625 F.2d at 1081.

31

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).
32

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 available."5 Therefore,
the ALJ held that the greater hazard defense was not applicable in the present
matter.

33

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.

34

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 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.

35

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.
36

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.

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."

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

29 C.F.R. 1926.105(a) states: "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."

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

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