Manson Construction Company v. Secretary of Labor

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANSON CONSTRUCTION
COMPANY,
Petitioner,
v.
SECRETARY OF LABOR,
Respondent.
No. 17-71736
LABR No. 14-0816
MEMORANDUM*
On Petition for Review of an Order of the
Department of Labor
Submitted October 10, 2018**
Seattle, Washington
Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.
Petitioner Manson Construction Company (“Manson”) petitions for review
of an order of the Occupational Safety and Health Review Commission
(“Commission”) concluding that Manson committed violations of 29 C.F.R.
FILED
OCT 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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§§ 1926.501(b)(1) and 1926.1431(b)(1). We have jurisdiction to hear the petition
pursuant to 29 U.S.C. § 660(a), and “we review the Commission’s findings for
substantial evidence.” R. Williams Constr. Co. v. Occupational Safety & Health
Review Comm’n, 464 F.3d 1060, 1063 (9th Cir. 2006); see also 29 U.S.C. § 660(a).
We deny the petition for review.1
1. Manson does not dispute that its employee on top of the dolphin was
not wearing fall protection and was working over six feet above the water, in
violation of 29 C.F.R. § 1926.501(b)(1), but alleges it was infeasible to implement
fall protection. Generally, an employer alleging infeasibility must show that: (1)
the means of compliance prescribed by the standard are technologically or
economically infeasible because the standard’s implementation or necessary work
operations would be infeasible; and (2) an alternative protective measure was used
or there was no feasible alternative measure. See V.I.P. Structures, Inc., 16 BNA
OSHC 1873 (No. 91-1167, 1994). Here, Manson must show that it would have
been infeasible to employ “the use of guardrail systems, safety net systems, or
personal fall arrest systems.” See 29 C.F.R § 1926.501(b)(1). Substantial evidence
supports the Commission’s determination that: (1) Manson failed to address why
the use of guardrail systems or safety net systems would have been infeasible; and
1 As the parties are familiar with the facts, we do not recount them here.
2

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(2) Manson failed to show that it had implemented alternative protective methods,
or that there were no feasible alternative means available. The Commission thus
did not err by determining that Manson failed to prove its affirmative defense.
2. Manson does not dispute that it failed to guard one side of its jilly lift,
in violation of 29 C.F.R. § 1926.1431(b)(1), but alleges that compliance with the
standard was infeasible. Manson also does not dispute that it would have been
physically possible to install a fourth guardrail. Instead, Manson contends that a
fourth guardrail would block its employees from adequately accessing the dolphin
and would create the hazard of pinch points. However, substantial evidence
supports the Commission’s conclusion that: (1) Manson failed to explain why it
could not use a detachable guardrail on its jilly lift while the platform was being
used to hoist or move Manson’s employees; and (2) Manson failed to show that it
had implemented alternative protective methods, or that there were no feasible
alternative means of doing so. The Commission thus did not err by concluding that
Manson failed to prove the infeasibility of compliance with 29 C.F.R.
§ 1926.1431(b)(1).
3. Manson failed to articulate the greater hazard defense and therefore
waived any argument that compliance with 29 C.F.R. §§ 1926.501(b)(1) and
1926.1431(b)(1) would have created a greater hazard. See Smith v. Marsh, 194
3

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F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in
its opening brief are deemed waived.”).
PETITION DENIED.
4

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