United States Court of Appeals, District of Columbia Circuit
Argued: April 16, 2014
On Petition for Review of a Final Order of the United States Occupational Safety & Health Review Commission.
Stephen C. Yohay argued the cause for petitioner. With him on the briefs were John A. Shedden and Paul J. Waters.
Scott Glabman, Senior Appellate Attorney, U.S. Department of Labor, argued the cause for respondents. With him on the brief were Joseph M. Woodward, Associate Solicitor for Occupational Safety and Health, and Heather R. Phillips, Counsel for Appellate Litigation.
Before: ROGERS, SRINIVASAN and MILLETT, Circuit Judges. OPINION by Circuit Judge MILLETT.
Millett, Circuit Judge
A service mechanic employed by Otis Elevator Company injured his hand while unjamming the gate of a freight elevator. The accident spurred an investigation by the Occupational Safety and Health Administration (OSHA), and ultimately a citation to Otis Elevator for violating OSHA safety standards involving the control of hazardous energy. The Occupational Safety and Health Review Commission upheld the citation, and Otis Elevator petitions for review of that decision. Specifically, Otis Elevator argues that the OSHA safety standards allegedly violated did not apply to the work its mechanic was performing at the time of the accident. Because the Commission's determinations that the safety standards applied to the mechanic's work and were violated are neither arbitrary
nor capricious, and are supported by substantial evidence, we deny the petition for review.
A. Statutory and Regulatory Framework
Congress enacted the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 (OSH Act), " to assure so far as possible * * * safe and healthful working conditions" for " every working man and woman in the Nation." 29 U.S.C. § 651(b). The Act charges the Secretary of Labor with promulgating workplace health and safety standards, id. at § 655, and imposing citations and monetary penalties on employers who fail to comply with those standards, id. at § § 658-659, 666.
An employer who disagrees with the Secretary's imposition of a citation or penalty can seek review before the Occupational Safety and Health Review Commission, 29 U.S.C. § § 651(b)(3) & 661, which must provide an objecting employer with an evidentiary hearing and a written decision based on findings of fact, id. at § 659(c). See also Martin v. OSHRC, 499 U.S. 144, 147-148, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991). Initially, an administrative law judge reviews the Secretary's order. 29 U.S.C. § 661(j). The Commission may, in its discretion, review the administrative law judge's decision de novo, without any deference to his or her fact findings, credibility judgments, or legal determinations. Id.; Falcon Steel Co., 16 O.S.H. Cases (BNA) 1179, 1993 WL 155690, at *7 (O.S.H.R.C. 1993) (" The Commission's reviewing authority includes the authority to decide all issues it could decide as the initial decision-maker." ).
Either the Secretary or the employer may seek judicial review of the Commission's final order directly in a United States court of appeals, which " must treat as 'conclusive' Commission findings of fact that are 'supported by substantial evidence.'" Martin, 499 U.S. at 148 (citing 29 U.S.C. § 660(a)-(b)).
In 1989, the Secretary exercised his rulemaking authority to prescribe safety requirements for " the control of hazardous energy." OSHA Control of Hazardous Energy Sources (Lockout/Tagout) Rule, 29 C.F.R. § 1910.147 (1989). That standard, commonly referred to as the " lockout/tagout" standard, " addresses practices and procedures that are necessary to disable machinery or equipment and to prevent the release of potentially hazardous energy while maintenance and servicing activities are being performed." Lockout/Tagout, 54 Fed. Reg. 36,644-01 (Sept. 1, 1989). To " lockout" or " tagout" a piece of equipment or machinery means to affix a device, or to otherwise take steps to disable equipment or machinery during maintenance or repair. See 29 C.F.R. § 1910.147(a)(3)(i), (b). By regulation, the lockout/tagout standard applies to " the servicing and maintenance of machines and equipment in which the unexpected energization or start up of the machines or equipment, or release of stored energy could cause injury to employees." 29 C.F.R. § 1910.147(a)(1)(i) (" scope provision" ).
The Secretary charged Otis Elevator with violating a standard requiring the exchange of lockout/tagout information between on-site and outside employers involved in maintenance or repair activities. That " information exchange provision" applies " [w]henever outside servicing personnel are to be engaged in activities covered by the scope and application of this standard," and requires that " the on-site employer and the outside employer shall inform each other of their respective lockout
or tagout procedures." 29 C.F.R. § 1910.147(f)(2)(i).
B. Factual Background
In June 2009, Otis Elevator dispatched one of its service mechanics to the Boston Store in Brookfield, Wisconsin, to repair a jammed metal gate on a freight elevator. When he arrived at the store, the mechanic spoke with a couple of Boston Store employees who confirmed that the gate on the elevator car was " hung up." An out-of-order sign had been placed near the elevator. Neither upon the mechanic's arrival nor at any other time prior to this incident did Otis Elevator provide the Boston Store with a copy of its lockout/tagout procedures.
When functioning properly, chain assemblies on the rooftop of the elevator car raise and lower the metal gate. Upon inspection, however, the mechanic found that the gate was partially open and could not be moved, leaving a three-foot gap between it and the floor.
The mechanic ducked underneath the gate, and then used a ladder to climb on top of the elevator car to perform the repair. He flipped two switches to prevent anyone from calling the elevator or moving the gate electronically. The mechanic failed, however, to block up the gate mechanically in order to prevent unexpected gate movement, as Otis Elevator's own mechanical repair processes, captioned " LOCKOUT/TAGOUT PROCEDURE," advised.
Once on top of the elevator car, the mechanic determined that the gate could not be moved because one of the chains was " off the sprocket" and jammed. He decided to fix the gate by prying the chain back onto the sprocket. Once unjammed, the chain immediately started moving. The mechanic realized that, as a result of the abrupt release of the jam, the gate was about to slam down and break the chain's connecting link. He reacted by grabbing the chain, which ...