Maxim Crane Works, LP v. OSHA ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0243n.06
Case No. 21-3647
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 15, 2022
MAXIM CRANE WORKS, LP, )
DEBORAH S. HUNT, Clerk
)
Petitioner,
)
) ON PETITION FOR REVIEW OF
v.
) AN ORDER OF THE
) OCCUPATIONAL SAFETY &
OCCUPATIONAL SAFETY & HEALTH
) HEALTH ADMINISTRATION.
ADMINISTRATION, U.S. DEPARTMENT OF
)
LABOR,
)
Respondent. ) OPINION
Before: McKEAGUE, GRIFFIN, and READLER, Circuit Judges.
McKEAGUE, Circuit Judge. An employee of Petitioner Maxim Crane Works LP fell
over nine feet while disassembling a crane for transport to a construction site. Respondent OSHA
cited Maxim for violating its regulations requiring fall protection for employees. OSHA generally
requires the use of fall protection at heights over four feet; but if employees are disassembling a
crane as part of construction work, fall protection is only required for heights above fifteen feet.
Maxim appealed the citation, arguing that it was engaged in construction work at the time and was
therefore in compliance. The Occupational Safety and Health Review Commission, relying on
this court’s opinion in Brock v. Cardinal Industries, Inc., 828 F.2d 373 (6th Cir. 1987), held that
Maxim was not performing construction work and affirmed the citation. Maxim petitions for
Case No. 21-3647, Maxim Crane Works, LP v. OSHA
review of that decision. Because we agree with the Review Commission that Maxim’s work lacked
a sufficient nexus to a particular construction site, Maxim’s petition for review is DENIED.
I.
Maxim Crane Works, LP specializes in the rental and sale of crane and lifting equipment.
Headquartered in Wilder, Kentucky, it operates locations across the country. Maxim’s customer
base includes multiple industries, but about 70–75% of its business serves construction industry
customers. Relevant to this case is its yard in Ridley Park, Pennsylvania, where Maxim stores and
maintains a fleet of primarily crawler cranes for rent to customers in the Philadelphia region.
In April 2017, a team of six employees was disassembling a Manitowoc 14000 crawler
crane in preparation for transport. The Manitowoc 14000 consists of a superstructure—a
substantial car body with treads—and a boom made up of multiple segments of latticed steel. The
boom segments are eight feet wide, eight feet high, and forty feet long at their longest. For
transport to a customer’s site, Maxim must disassemble it into multiple tractor trailer loads—large
enough to require state permits for oversized loads. Such disassembly usually takes two to three
days. This particular Manitowoc had been assembled for operation at the Ridley Park yard after
returning from the last customer. Maxim would use cranes around its yard for loading and
unloading and inventory management. The Manitowoc was disassembled for transport to a
construction site in New Jersey operated by Maxim’s customer, Durr Mechanical. Once it reached
the Durr Mechanical site, Maxim’s employees were to assemble and operate the crane on that
location.
During disassembly, one of Maxim’s employees fell from the top of a section of boom
while at a height of nine and a half feet. None of Maxim’s team were using any method of fall
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protection while disassembling the crane. He was hospitalized, suffering a concussion, a fractured
skull and scapula, and multiple lacerations.
Maxim reported the incident to the Occupational Safety and Health Administration via
their hotline. Four days later, an OSHA Compliance Officer inspected Ridley Park. OSHA then
issued a Two-Item Citation and Notification of Penalty to Maxim, for a total penalty of $25,350.
At issue in this petition, Item 1 was for a serious violation of 29 C.F.R. § 1910.28(b)(1)(i) for
failing to ensure employees used fall protection while working more than four feet above the next
highest surface.
Maxim contested the citation, and a hearing was held before the Chief Administrative Law
Judge (“ALJ”) in October 2018. In January 2020, the ALJ issued a decision affirming both
citations and the proposed penalty. Maxim then petitioned the Occupational Safety and Health
Review Commission for discretionary review. The Review Commission granted the petition to
review only Item 1 of the citation, directing the parties to brief whether the cited general standard
was preempted by the more lenient construction industry-specific standard, and specifically asked
the parties “to discuss the Sixth Circuit’s decision in Brock v. Cardinal Indus., Inc., 828 F.2d 373(6th Cir. 1987).” Supp. App’x 186. In May 2021, the Review Commission issued its decision
affirming the ALJ. See Maxim Crane Works, LP, No. 17-1894 (OSHRC May 20, 2021). Maxim
then brought this petition for review pursuant to 29 U.S.C. § 660(a).
II.
This court has jurisdiction to review Maxim’s timely petition for review pursuant to 29
U.S.C. § 660(a). We review the Review Commission’s findings of fact for substantial evidence.
29 U.S.C. § 660(a). The Review Commission’s conclusions of law are set aside when they are
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
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§ 706(2)(A); CMC Elec., Inc. v. Occupational Safety & Health Admin., U.S. Dep’t of Lab., 221
F.3d 861, 865 (6th Cir. 2000). “We interpret the applicable regulations as we would a statute, and
defer to the Secretary’s interpretation only if a regulation’s meaning remains unclear after
‘exhaust[ing] all the traditional tools of construction.’” Lake Bldg. Prods., Inc. v. Sec’y of Lab.,
958 F.3d 501, 504 (6th Cir. 2020) (alteration in original) (quoting Kisor v. Wilkie, -- U.S. --, 139
S. Ct. 2400, 2415 (2019)).
III.
A.
Maxim’s petition turns on a single issue: whether the disassembly of its Manitowoc crane
at its yard in Ridley Park, Pennsylvania constituted construction work for purposes of OSHA’s
regulations. OSHA argues that Maxim was properly cited under its general regulation requiring
fall protections at heights above four feet, 29 C.F.R. § 1910.28(b)(1)(i). Maxim argues that the
specific standard for the construction industry, 29 C.F.R. § 1926.1423(f), should be applied
instead, which only requires fall protections at heights above fifteen feet.
Maxim does not dispute that the general standard applies to its disassembly. It instead
argues that the construction standard also applies, and where two standards apply to given work,
the industry-specific standard controls. See 29 C.F.R. § 1910.5(c)(1). Maxim’s preferred standard
falls within a part of OSHA’s regulations pertaining to “Cranes and Derricks in Construction.”
See 75 Fed. Reg. 47,906-01, 47,906 (Aug. 9, 2010). These regulations, and the other construction-
specific regulations within 29 C.F.R. § 1926, are incorporated as occupational safety and health
standards applicable to “every employment and place of employment of every employee engaged
in construction work.” 29 C.F.R. § 1910.12(a). This provision incorporating the § 1926
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construction regulations, § 1910.12, defines construction work as “work for construction,
alteration, and/or repair, including painting and decorating.” 29 C.F.R. § 1910.12(b).
We have confronted the question of whether an employee was engaged in construction
work for purposes of OSHA’s regulations before. In Brock v. Cardinal Industries, the Secretary
of Labor sought review of a Review Commission decision interpreting § 1910.12. 828 F.2d 373,
375 (6th Cir. 1987), abrogated on other grounds by Martin v. Occupational Safety & Health Rev.
Comm’n, 499 U.S. 144 (1991). Cardinal Industries built prefabricated homes and was cited by
OSHA for violating a general standard. Id. at 374–75. It appealed the citation to the Review
Commission, arguing that its employees were engaged in construction work and that therefore a
construction industry standard applied, preempting the general standard. Id. at 375. The Review
Commission looked to the nature of the work performed, concluded that it was construction work,
and vacated the citation. Id. The Secretary sought review, and we reversed. Id. at 380.
Looking to the text of § 1910.12, we determined that the primary function of the
employer’s business and the nature of the work performed were not alone sufficient for work to
be construction. See id. at 375–79. In its definition of construction work, § 1910.12 refers to
“discussion of” the terms “construction, alteration, and/or repair” in 29 C.F.R. § 1926.13.
29 C.F.R. § 1910.12(b). Section 1926.13, in turn, notes that the “use of the same or identical
terms” in the Davis-Bacon Act and the Miller Act have “considerable precedential value” in
“ascertaining the coverage” of OSHA’s construction regulations. 29 C.F.R. § 1926.13(a). We
concluded that these cross references must be taken into account when interpreting the meaning of
construction work in § 1910.12. Cardinal Indus., 828 F.2d at 378–79.
The regulations that interpret similar terms in the Davis-Bacon Act limit construction work
to “work done on a particular building or work at the site thereof.” 29 C.F.R. § 5.2(j)(1). A site
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of work is limited to “the physical place or places where the building or work called for in the
contract will remain; and any other site where a significant portion of the building or work is
constructed.” 29 C.F.R. § 5.2(l)(1). These regulations, we acknowledge, may differ in some
respects from the definition of construction work in § 1910.12. See CH2M Hill, Inc. v. Herman,
192 F.3d 711, 719 (7th Cir. 1999) (holding that construction industry regulations may apply to
certain professionals who fall outside the Davis-Bacon Act regulations). Yet the Davis-Bacon Act
regulations, by the terms of § 1926.13, have “considerable precedential value” in defining
construction work in § 1910.12. By reading § 1910.12 in the context of these regulations and other
interpretations of construction work, we concluded that “a finding of ‘construction work’ under
section 1910.12 requires some nexus to the construction site.” Cardinal Indus., 828 F.2d at 380.
We explained that “construction work necessarily implies some direct and tangible connection or
relationship with the physical site or location of the structure.” Id. at 379.
Applying this requirement to Cardinal’s work, we held that it lacked a sufficient nexus to
a construction site. Id. at 380. Cardinal itself admitted that its production facility was not a
construction site. Id. And its work bore no connection to any specific site where the prefabricated
homes would be installed. Id. Absent “a nexus between the work and the construction site,” only
the general standard applied. Id. at 379–80.
In a footnote, we explained that the factors considered by the Review Commission, such
as the nature of the work performed and the primary function of the employer’s business, would
be relevant to this inquiry only after a locational nexus was established. Id. at 380 n.11.
Cardinal Industries thus establishes a two-step inquiry. First, the reviewer must determine
that there is “some nexus to the construction site.” Id. at 380. Second, the work must be integral
and necessary to construction work, considering factors like the nature of the work performed and
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the employer’s primary function. Cleveland Elec. Illuminating Co. v. Occupational Safety &
Health Rev. Comm’n, 910 F.2d 1333, 1335 (6th Cir. 1990); Cardinal Indus., 828 F.2d at 380 n.11.
Maxim suggests that we should hold “Cardinal to its facts” and decide this case on other
grounds. Pet’r’s Br. at 10. Maxim points to our opinion’s reliance on Cardinal’s concession that
its manufacturing facility was not a construction site, and it notes that Maxim’s preferred
regulation was enacted many years after we decided Cardinal Industries. But Cardinal’s
concession was only relevant after we examined § 1910.12 and determined that a locational nexus
was required by the regulations. See Cardinal Indus., 828 F.2d at 379. And Maxim’s preferred
standard only applies to employers and employees via § 1910.12. We are not at liberty to ignore
the holdings of prior published opinions of this court. See Worldwide Equip. of TN, Inc. v. United
States, 876 F.3d 172, 181 (6th Cir. 2017); see also Cleveland Elec. Illuminating Co., 910 F.2d at
1336 (applying the Cardinal Industries nexus requirement). Cardinal Industries controls this case.
B.
Here, the first prong of the Cardinal Industries test—the nexus requirement—is
dispositive. All parties acknowledge that the Ridley Park yard is not itself a construction site. The
only question is whether the disassembly nevertheless had a sufficient connection to a particular
construction site. Cardinal Indus., 828 F.2d at 380. Because Maxim’s disassembly lacked such a
nexus, its employees were not engaged in construction work, and OSHA properly applied
§ 1910.28(b)(1)(i).
In holding that Maxim’s work lacked a nexus, the Review Commission first observed that
Maxim’s Ridley Park, Pennsylvania yard “is neither a construction site nor near the New Jersey
construction site.” Maxim Crane Works, LP, No. 17-1894, 2021 WL 2311880 at *3 (OSHRC May
20, 2021). Rather, “Maxim’s crane disassembly on the day of the accident took place at its
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maintenance yard.” Id. at *4. The Commission further found that the work Maxim performed was
routine and not customized to a particular construction site. See id. at *3. We agree. Maxim
regularly engaged in assembly and disassembly of cranes at Ridley Park for reasons unrelated to
construction. Cf. 29 C.F.R. § 5.2(l)(3) (stating that “permanent, previously established facilities
are not part of the site of the work” for purposes of the Davis-Bacon Act). Although this
disassembly was in preparation for transport to a construction site, it was the same work that would
have been conducted if the crane were to be sent to a nonconstruction customer or to storage. As
the Review Commission found, nothing about the disassembly—other than its intended
customer—distinguished this disassembly from any other. Nor is Maxim’s maintenance yard
adjacent to Durr Mechanical’s construction site. Indeed, the Durr Mechanical site is in New Jersey,
across the Delaware River from Maxim’s facility. And “no actual construction or repair was being
performed” at Maxim’s maintenance yard when the accident occurred. Cleveland Elec.
Illuminating Co., 910 F.2d at 1336. The crane’s disassembly thus lacked a “direct and tangible
connection or relationship” with the construction site. Cardinal Indus., 828 F.2d at 379.
Maxim argues that, because the work was conducted on a schedule required by its
agreement with Durr Mechanical and because its employees were to operate the crane at the
construction site, it nevertheless had a sufficient nexus to the Durr Mechanical site. But
performing the work in anticipation of a particular project does not mean that the work had a
“direct and tangible connection or relationship with the physical site or location of the structure”
being built. Cardinal Indus., 828 F.2d at 379. Had Durr Mechanical cancelled its contract, the
disassembled Manitowoc could have been stored or sent to a nonconstruction customer. Similarly,
Maxim employees’ future operation of the crane does not affect whether the disassembly was
connected to the Durr Mechanical site.
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Maxim also argues that its disassembly work was not routine because of the complexity of
the undertaking. It is clear from the record that disassembling a Manitowoc 14000 is not a simple
task. But despite the difficulty of disassembly, it is the same task Maxim performs regardless of
the customer or use of the crane. It does not undermine the Review Commission’s finding that
Maxim’s disassembly was routine in that it was not customized to the particular construction site.
Because we hold that Maxim’s disassembly work lacked a sufficient connection to a
specific construction site, we need not evaluate whether the work performed was “integral and
necessary” to the construction project. Cleveland Elec. Illuminating Co., 910 F.2d at 1335–36.
OSHA’s general four-foot fall protection standard applies. Thus, Maxim was not in compliance
because it failed to provide the required fall protection.
IV.
Maxim’s petition is therefore DENIED.
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