ALFRED S. AUSTIN CONSTRUCTION COMPANY
OSHRC Docket No. 4809
Occupational Safety and Health Review Commission
April 28, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor
Richard H. Dreyer, General Superintendent, Alfred S. Austin Construction Company, Inc., for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On April 3, 1974, Judge J. Marker Dern rendered his decision in this case vacating the Secretary of Labor's (complainant) citation and proposed penalty for a serious violation of the Act. n1 Alfred S. Austin Construction Co. (respondent) was cited by complainant for, among other things, its alleged failure to comply with the standard at 29 CFR § 1926.550(d)(4).
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n1 The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.
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The Secretary of Labor urges the record supports a holding that the respondent employer violated 29 CFR § 1926.550(d)(4) by permitting employees to ride in a material box while it was raised and lowered by a crane. The respondent employer has filed no brief.
The Judge's disposition is reversed to the extent [*2] that it is inconsistent with the following.
Respondent is engaged in concrete construction. On August 14, 1973, a compliance officer (CO) of the Secretary of Labor inspected respondent's work site, a high-rise apartment complex located in Winter Haven, Florida. Following the inspection, the complainant, Secretary of Labor, issued to respondent one citation alleging four other than serious violations and another citation alleging one serious violation of the Act. The citation for the serious violation alleged that respondent failed to comply with the standard at 29 CFR § 1926.550(d)(4). n2 A penalty of $45 for item 4 of the citation for other than serious violations and a penalty of $550 for the alleged serious violation were proposed by complainant. Respondent timely contested the Secretary's action as to the alleged serious violation and its corresponding proposed penalty. The case was docketed, and came on for hearing before Judge Dern on January 18, 1974.
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n2 The standard reads as follows:
§ 1926.550 Cranes and derricks
* * *
(d) Overhead and gantry cranes
* * *
(4) All overhead and gantry cranes in use shall meet the applicable requirements for design, construction, installation, testing, maintenance, inspection, and operation as prescribed in the ANSI B30.2.0 - 1967, Safety Code for Overhead and Gantry Cranes.
The applicable American National Standards Institute (ANSI) section provides as follows.
Chapter 2-3 Operation
* * *
Section 2-3.2 Handling the Load
* * *
2-3.2.3 Moving the Load
* * *
e. The operator shall not hoist, lower, or travel while anyone is on the load or hook.
[*3]
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At the hearing, the Secretary's compliance officer testified that during his inspection he observed a material box, at times referred to as a "skipbox", as it was descending along the side of the building. The material box was positioned on a hook at the end of a crane's cable and, at the time it was observed, was seemingly transporting two men. When first noticed by the CO, the material box was approximately 75 feet above the ground. It took 7 or 8 seconds to complete this last portion of its descent. The officer noted that the crane was positioned such that the material box was travelling approximately 15 feet from the side of the building and, at first glance, there appeared to be nothing in the box except the two men. Recognizing the situation as failing to comply with a subsection of the ANSI "Safety Code for Overhead and Gantry Cranes", the CO recommended citing respondent under the standard at 29 CFR § 1926.550(d)(4), which incorporates the "Safety Code" by reference. The OSHA Area Director agreed, and acted upon the recommendation.
Respondent's construction superintendent testified that [*4] the material box was not "transporting" the employees as alleged in the citation, but instead was being used as a work platform. He noted that the use of a material box to transport workers is prohibited by respondent's operating procedure. The superintendent went on to explain further the situation.
Respondent was in the process of constructing a material-personnel hoist on the south side of the building. The hoist is an open tower approximately three feet square. It was positioned about five feet from the edge of the building and was attached to the structure by means of cross-braces. The two employees seen in the material box were assigned the task of securing the cross-braces between the hoist and the building. Since the work to be accomplished could not be performed from either a scaffold or from the building itself, the use of the box as a work platform was seen by respondent as being the most reasonable and safest method of operation. n3 In addition, respondent introduced a telegram n4 from the Assistant Secretary of Labor to the General Contractors Association of Tampa, Florida, essentially notifying the Association that the Secretary would no longer issue citations [*5] in cases where employees are transported by crane if certain specific criteria were met. n5
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n3 For general safety and to avoid possible tipping of the box, it was necessary for respondent's employees to board the material box on the ground level on the north side of the building. In respondent's judgment, the congestion caused by a number of temporary structures on the south side would have significantly increased the danger of the boarding procedure on that side. Thus, after boarding on the north side of the building, the employees were raised up the side, over the roof, and lowered to their work position on the south side. After completing their task, the procedure was reversed.
n4 Respondent's exhibit 7.
n5 The Assistant Secretary's telegram specifically states that no citations will be issued under 29 CFR § 1926.550(b)(2). The standard provides as follows:
§ 1926.550 Cranes and derricks
* * *
(b) Crawler, locomotive and truck cranes.
* * *
(2) All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes.
The applicable American National Standards Institute (ANSI) section provides as follows:
Chapter 5-3 Operation
* * *
Section 5-3.2 Handling the Load
* * *
5-3.2.3 Moving the Load
* * *
e. The operator shall not hoist, lower, swing, or travel while anyone is on the load or hook.
While respondent was cited under 29 CFR § 1926.550(d)(4), the only difference between 550(d)(4) and 550(b)(2) is that 550(b)(2) refers to crawler, locomotive and truck cranes, while 550(d)(4) refers to overhead and gantry cranes. The requirements of the two standards, however, (see note 2 supra) are virtually identical.
[*6]
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In his decision, the Judge, without addressing the issue presented by the Assistant Secretary's communication to the Florida contractors, vacated complainant's citation finding that no violation had been established since "[t]he skip box was not being utilized in hoisting a load and no one used the hook for traveling". For more than one reason, the Judge erred.
The Secretary, in his brief on review, brings to our attention the most obvious of the Judge's errors. From the decision, it is clear that the Judge misconstrued the term "load" as it appears in the standard at issue.
The term is specifically defined in the applicable ANSI Safety Code n6 as follows:
Chapter 2-0 Scope, Definitions, References
References
* * *
Section 2-0.2 Definitions
* * *
2-0.2.2 General
* * *
2-0.2.2.27 Load. The total superimposed weight on the load block or hook.
The regulation or standard at issue instructs the crane operator not to "hoist, lower or travel while anyone is on the load or hook". Careful examination of this regulation, in light of the above definition and other circumstances [*7] of this case, discloses three possible interpretations. As a general principle of construction, regulations should be construed to give them force and effect and not to render them meaningless. See Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 631 (1973). "It is especially important" that the regulations promulgated by the Secretary of Labor under the Act be construed "to effectuate the congressional objectives". Brennan v. O.S.H.R.C. and Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974). Thus, each of the three possible interpretations must be examined to arrive at the one most appropriate to fulfill the Congressional purpose and policy; that is, "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." n7
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n6 See note 2 supra.
n7 Section 2(b) of the Act, 29 U.S.C. § 651(b).
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Under the first possible interpretation, that apparently chosen by Judge Dern, the material box itself and the employees' hand tools would not constitute [*8] a "load." Hence, if there is no load on the hook, and if no one is riding directly on the hook, there can be no failure to comply with the standard. On its face such an interpretation would be, and is, erroneous. The combination of the material box and the hand tools constitutes "superimposed weight on the load block or hook" and thus, is a "load" within the meaning of the standard.
The second possible interpretation might be designated as the literal or strict interpretation and, as such, would find the load to be the combined weights of the material box, the tools, and the employees themselves. Viewing the regulation in this light would require that the employees being transported always be included as part of the load. If employees are always part of the load, then it follows that they could never be on the load. Therefore, this interpretation would render the standard meaningless.
In order to give force and effect to the standard at issue, n8 we must turn to the third possible interpretation. Under this construction, indeed the only reasonable construction, the employees being transported would be treated as separate and distinct from the load, which, in this [*9] instance, is the combined weight of the material box and the tools, as noted above. In applying this third interpretation to the facts, we find that respondent's employees were "hoist[ed], lower[ed], [and did] travel" while on the crane's load in contravention of the standard.
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n8 See Weinberger v. Hynson, Westcott & Dunning, Inc., supra.
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While convinced at this stage that respondent violated the Act by failing to comply with the standard at 29 CFR § 1926.550(d)(4), we must continue our analysis. This issue concerning the effect, if any, of the Assistant Secretary's telegram to the General Contractors Association remains to be answered.
Standards are adopted and amended through procedures established in section 6 of the Act. 29 U.S.C. § 655. Therefore, the Assistart Secretary's telegram cannot have the effect of amending a validly promulgated and existing standard. Nevertheless, fairness dictates that we examine respondent's position in the favorable light of such pronouncements by the Secretary or [*10] his Assistants. See Continental Steel Corp., BNA 3 OSHC 1410, CCH OSHD para. 19,838 (No. 3162, July 16, 1975).
The telegram, introduced into evidence by respondent, is dated May 22, 1972. A restatement of the telegram was issued by the Secretary as a Field Information Memorandum on February 13, 1975. Field Information Memorandum #75-13, CCH, ESHG, para. 9707 (New Developments, 1975).
Both the original telegram and, later, the memorandum state that citations will not be issued for employees being transported by crane as long as the following criteria are met: (1) there must be no other practical means of transporting the persons; (2) persons may not be transported directly on the crane hook; (3) the transporting must be done on equipment designed for passenger service; (4) the equipment used must have adequate side and end protection; (5) the stability and integrity of the equipment must be maintained; and (6) there must be some positive means of preventing the bridles from becoming disengaged from the crane hook.
In this case there was no other practical means of transporting the employees nor were the employees transported directly on the crane's hook. Although the [*11] material box at issue was not specifically designed for passenger service, it did have what would qualify in most cases as "adequate" side and end protection. Attention was given to the box's stability as well as its integrity and a safety hook was used to prevent the bridles from becoming disengaged from the crane hook. Our consideration of the situation in light of the Secretary's pronouncement leads us to conclude that, while respondent went to considerable lengths to insure the safety of its employees, it narrowly misses satisfying the criteria established by the Secretary. The material box was not designed for passenger service. The safety of respondent's employees, however, was not prejudiced as a result of this failure to satisfy the Secretary's criteria.
In General Electric Co., BNA 3 OSHC 1031, CCH OSHD para. 19,567 (No. 2739, April 21, 1975), this Commission affirmed a Judge's decision to alter the characterization of a violation from serious to de minimis. We stated:
. . . section 9(a) [29 U.S.C. § 658(a)] authorizes the Secretary to issue a notice in lieu of a citation with respect to de minimis violations having no direct or immediate relationship to [*12] safety and health. The Act is facially silent, however, as to the authority of the Commission to find a de minimis violation where there is a direct relationship to safety and health, but that relationship is so remote as to be nearly negligible as is the case herein. We conclude that section 10(c) [29 U.S.C. § 659(c)] granting the Commission, after a hearing, the authority to issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief . . .", provides the requisite authority (emphasis supplied). n9
We believe that the unique circumstances of the case fall within our holding in General Electric. Of course, any departure by the employer from its current practice would warrant a different result.
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n9 BNA 3 OSHC at 1044; CCH OSHD para. 19,567 at p. 23,369.
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Accordingly, it is ORDERED that Judge J. Marker Dern's decision to vacate complainant's citation be reversed and that the Secretary of Labor's citation [*13] for respondent's violation of the Act be reduced to de minimis and be affirmed. It is further ORDERED that no penalty be assessed.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
This case is before the Commission as the result of a sua sponte direction for review issued by Commissioner Cleary which did not specify any "issue." It simply asked "whether the . . . Judge committed reversible error by vacating the citation." The fact that Messrs. Barnako and Cleary have not vacated this direction for review demonstrates once again the double standards they apply to their deliberations. Neither of my colleagues at any time has even suggested that this Cleary direction for review ought to be vacated. There is no way that their failure to vacate here can be reconciled with their actions - taken on some 34 cases in the month of February 1976 alone - vacating Moran directions for review. In some of those cases they vacated directions for review even though one of the parties had petitioned the Commission seeking review. It is most revealing to compare the "action" taken by Messrs. Barnako and Cleary in this case with the "words" they wrote about sua sponte directions for [*14]
It is impossible to reconcile the case with Francisco Tower and its progeny just as it is to determine what the holding of the Commission in this case is - and what effect the Commission wishes this decision to have.
My colleagues first rule that the Secretary of Labor's announced enforcement policy is of no effect, that the Commission thus need not pay any attention to it in construing this standard, and that respondent has violated the standard as the Commission has interpreted the standard. They then proceed to examine the facts of the case in the light of the Secretary of Labor's criteria and in fact hold that respondent has complied with the standard as it has been interpreted by the Secretary except in one minor technical respect. Thereafter, they conclude that because employee safety was "not prejudiced as a result of this failure to satisfy the Secretary's criteria," that respondent's violation of the Occupational Safety and Health Act is de minimis.
I will not attempt to unravel this morass. Indeed, I do not feel capable of doing so. I can only comment that I, undoubredly [*15] like the other readers of this decision, have no idea what it means. The only possible explanation is to note that the developing Barnako-Cleary lexicon seems to be derived more from the writings of George Orwell and Lewis Carroll than from those of Merriam-Webster.
I feel constrained to point out, however, that in addition to the fact that this decision is internally inconsistent, it is wrong on the law in several respects. The first is the effect that should be given to the Assistant Secretary of Labor's telegram, the substance of which was later transmitted in a memorandum to Occupational Safety and Health Administration offices throughout the country. These documents explain how 29 C.F.R. § 1926.550 can be complied with when it is necessary to transport employees by crane to perform a job.
Continental Oil Company v. Burns, 317 F. Supp. 194, 197 (D. Del. 1970) held that:
"[A]n administrative interpretation . . . is a clarification or explanation of existing laws or regulations . . . . [They] are statements as to what the administrative officer thinks the . . . regulation means." (Emphasis added.)
Other courts have similarly defined administrative interpretations. [*16] See, e.g., Gibson Wine Co. v. Snyder, 194 F.2d 329 (D.C. Cir. 1952). Moreover, administrative interpretations need not be issued formally in regulations. They can also be announced through press releases and reports. 1 K. Davis, Administrative Law Treatise, § 5.01 at 289 (1958).
The Secretary of Labor's announcement about what must be done to comply with this standard clearly constitutes an administrative interpretation. Such an interpretation should be given great weight by the Commission and not be ignored in determining what is necessary to comply with this standard. See Investment Company Institute v. Camp, 401 U.S. 617, 626-627 (1971); Immigration and Naturalization Service v. Stanisic, 395 U.S. 62, 72 (1969); First Nat. Bank in St. Louis v. State of Missouri, 263 U.S. 640, 658 (1924); Greene v. Dietz, 143 F. Supp. 464, 470 (S.D.N.Y. 1956).
The second point which ought to be made is - or ought to be - perfectly obvious: when there is no occupational hazard to employees arising out of a cited condition, there is no violation of the Occupational Safety and Health Act. Messrs. Barnako and Cleary concede in this case that the fact [*17] that the material box in which respondent's employees were transported was not specifically designed for passenger service did not affect employee safety. They nevertheless affirm a citation for a violation which they classify as de minimis.
I submit that such a disposition is contrary to the Congressional direction in 29 U.S.C. § 658(a). n10 That section permits the Secretary to provide for the issuance of a "notice" instead of a "citation" when an alleged violation is classified as "de minimis." Secretary v. J.E. Chilton Millwork & Lumber Company, 1 OSAHRC 307, 319 (1972).
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n10 "The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health."
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The distinction between de minimis violations and violations for which citations may issue is significant. The Act requires abatement only of conditions enumerated in a citation (29 U.S.C. § 658(a)), and a failure to correct the conditions [*18] stated therein may result in increased employer liability under 29 U.S.C. § § 659(b) and 666(d) for failure to abate. These sanctions are not applicable to notices that are issued for de minimis violations.
This distinction is recognized by the Secretary of Labor. A regulation issued by the Secretary directs the Secretary's inspectors to issue a notice of de minimis violation rather than a citation when a violation of a standard has no direct relationship to employee health and safety. n11 It is regrettable that this distinction is not also recognized by my colleagues since their failure to recognize the distinction creates needless uncertainty about whether the citation herein can serve as a basis for a repeat violation if respondent is cited in the future for failure to comply with the same standard (29 U.S.C. § 666(a)) or subject respondent to sanctions for failure to abate (29 U.S.C. § § 659(b) and 666(d)).
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n11 The regulation provides:
"Section 9 of the Act provides that 'The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety and health.' (Emphasis added.) Therefore, where a violation of a standard does not immediately or directly relate to safety or health, it would be appropriate to issue a notice of de minimis violation, rather than a citation. Such use of the notice of de minimis violation might be appropriate in situations involving standards containing physical specificity wherein a slight deviation would not have an immediate or direct relationship to safety or health. No penalties are proposed for de minimis notices, and there is no abatement requirement. No further enforcement action should be taken even though the employer has not corrected the de minimis condition." U.S. Department of Labor, Occupational Safety & Health Field Operations Manual, Chap. VIII, para. B3a, at VIII-B4c (1974).
[*19]
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Additionally, the charge should be vacated for two other reasons. First, the occupational safety standard codified at 29 C.F.R. § 1926.550(d)(4) is invalid because of its incorporation by reference of ANSI standard B30.2.0-1967. n12 Second, the respondent's contention that the use of the "skip box" was the safest way to perform the work on the hoist is unrebutted.
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n12 I have previously expressed the reasons for this conclusion in my separate opinions in Secretary v. Northern Metal Co., 20 OSAHRC 869 (1975), and Secretary v. Modern Automotive Services, Inc., 6 OSAHRC 738 (1974).
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My colleagues recognize that "the work to be accomplished could not be performed from either a scaffold or from the building itself" and appear to agree that the respondent's contention is meritorious. However, for reasons known only to them, they ignore our past precedents in affirming the alleged violations. The Commission has previously held that [*20] noncompliance with a safety standard is not required when necessary to permit the accomplishment of required work n13 or when the safest way to perform such work is by disregarding a standard. n14 I would hold that these precedents are controlling in the instant case.
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n13 Secretary v. Consolidated Engineering, Inc., 12 OSAHRC 490 (1974), and the cases cited therein; Secretary v. W.B. Meredith II, Inc., 9 OSAHRC 245, 246 (1974).
n14 See Secretary v. American Bridge, Division of U.S. Steel Corporation, 12 OSAHRC 22 (1974); Secretary v. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974).
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