Docket No. 82-0427

SECRETARY OF LABOR,
Complainant,

CARDINAL INDUSTRIES, INC.,
Respondent.

OSHRC Docket No. 82-0427

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C ї 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ї 659(c).

Administrative Law Judge Edwin G. Salyers affirmed two items of a citation issued by the Secretary to Cardinal Industries, Inc. Items 2b and 2c of citation 2 alleged that, contrary to 29 C.F.R.ї 1910.23(c)(1), Cardinal had not installed guardrails on two platforms. Item 3 of that citation alleged that, contrary to 29 C.F.R. ї 1910.132(a), Cardinal's employees had not worn safety belts. Cardinal contends that these general industry standards do not apply to its workplace. Cardinal claims that because its employees are engaged in construction work, the construction standards apply. We agree with Cardinal that its employees are engaged in construction work. We also conclude that the general industry standards are preempted by specifically applicable construction standards. Inasmuch as the Secretary did not allege and the parties did not try violations of those construction standards, we vacate the items.

Cardinal operates a facility in Columbus, Ohio at which modular housing units are constructed. Completed units are removed from the facility and assembled elsewhere to form, residences or other buildings. Judge Salyers described the operations at Cardinal's facility as follows:

The production line moves through approximately 25 work stations. Each unit is mechanically propelled on a track from each station to the other. The first operation is the placing of the floor. Once this is accomplished, the unit begins to move through the various work stations where front walls, side walls, rear walls, ceiling, roof, gypsum, roofing felt, shingles, trim and other items are subsequently applied. . . The entire operation is performed in an enclosed facility which encompasses three city blocks.

The various parts of a unit are joined by Cardinal's employees, who are represented by the United Brotherhood of Carpenters and Joiners. The parts are joined in the same manner as at a building site. For example, after the floor is set in place, Cardinal's employees erect the walls, attach insulation, gypsum board and siding. When the roof is in place, the employees unroll felt, cut it to the size of the roof and nail it to the roof. They then put down shingles and nail them to the roof. Cardinal's employees also install plumbing and electrical wiring.

Cardinal contends that its operation involves "construction work" within the meaning of 29 C.F.R. ї 1910.12.[[1]] It argues that but for its "unique operation," the units it produces would be constructed on a building site. Cardinal points out that the units all have the roofs, sides, interior walls, flooring, and electrical wiring typical of any house or building. It notes that the carpentry and plumbing skills required to build the units are those generally associated with construction.

The Secretary claims that the indoor assembly line and permanent work stations at Cardinal's plant are the hallmarks of a classic assembly-line manufacturing operation to which the general industry standards in 29 C.F.R. Part 1910 apply. He relies on Office of Management and Budget, Standard Industrial Classification Manual 47, 94 (1972), which lists the production of "Prefabricated Wood Buildings and Components" under manufacturing, but classifies the fabrication of buildings on a construction site as construction. He also cites Fleetwood Homes of Texas, Inc., 80 OSAHRC 97/C4, 8 BNA OSHC 2125, 1980 CCH OSHD І 24,837 (No. 76-2332, 1980), and Prowler Travel Trailers of New York, Inc., 77 OSAHRC 207/A2, 6 BNA OSHC 1134, 1977-78 CCH OSHD І 22,397 (No. 15636, 1977), decisions in which the Commission applied general industry standards to the assembly line production of mobile homes. The Secretary also argues, relying on Royal Logging Co., 79 OSAHRC 84/A2, 7 BNA OSHC 1744, 1979 CCH OSHD І 23,914 (No. 15169, 1979), aff'd, 645 F.2d 822 (9th Cir. 1981), that the nature of the overall operation rather than use of construction skills or equipment determines whether an employer is involved in construction.

The judge found that the construction industry standards do not apply. He found that although "the end product of [Cardinal's] operations is a finished housing unit, the nature of the operation was more akin to manufacturing than . . . to construction." He reached this conclusion primarily because the units, which "move along a line much like any other manufactured product," were produced on an assembly line entirely within Cardinal's facility.

The applicability provisions in 29 C.F.R. Part 1910 control the resolution of this question. Section 1910.5(a) states that the occupational safety and health standards in Part 1910 "apply with respect to employment performed in a workplace in" the United States. Section 1910.12, which adopts the construction standards in Part 1926 as occupational safety and health standards, states that they "shall apply . . , to every employment and place of employment of every employee engaged in construction work." Section 1910.5(c) provides a rule for choosing between these standards. Subsection (c)(1) states that "[i]f a particular standard is specifically applicable to a condition . . . [or] operation . . ., it shall prevail over any different general standard which might otherwise be applicable to the same condition . . . [or] operation . . . . " "On the other hand," states section 1910.5(c)(2) "any standard shall apply . . . to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry. . . ." The question here, therefore, is whether there are specifically applicable Part 1926 standards. To answer that question, it is first necessary to determine whether Part 1926 is applicable at all, i.e., whether Cardinal's employees are engaged in "construction work" within the meaning of section 1910.12. We find that Cardinal's employees were engaged in construction work. We also find that there are specifically applicable construction standards.

Section 1910.12(b) defines "construction work" as "work for construction, alteration, and/or repair, including painting and decorating." In determining whether an operation constitutes "work for construction," the Commission has held that Part 1926 applies only to employers who are actually engaged in construction work or who are engaged in operations that are an integral and necessary part of construction work. United Geophysical Corp., 81 OSAHRC 77/D6, 9 BNA OSHC 2117, 2121, 1981 CCH OSHD І 25,579, p. 31,906 (No. 78-6265, 1981), aff'd without published opinion, 683 F.2d 415 (5th Cir. 1982). Although Cardinal's employees construct housing units in a factory setting, the carpentry, plumbing, roofing and electrical work they perform is identical to that performed at a construction site, and identical to the kind of work that OSHA specifically intended Part 1926 to cover. See sections 1910.17(b)(2) and 1926.1051(b)(2) (applying Part 1926 to "light residential construction").[[2]] That Cardinal's employees work in a building rather than outdoors at the site of final assembly cannot be controlling, for under section 1910.12, it is the nature of the work rather than its location that controls. Indeed, section 1910.12's references to alteration and repair make this clear, for such work frequently takes place within pre-existing structures. Finally, the construction activities performed by Cardinal's employees are not ancillary to or in aid of a nonconstruction purpose. See Royal Logging, 7 BNA OSHC at 1750, 1979 CCH OSHD at p. 28,996. They are directed at Cardinal's primary function--construction.[[3]]

We now address whether there are construction standards specifically applicable to the cited conditions. See Daniel Construction Co., 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1554-5, 1982 CCH OSHD І 26,027, p. 32,675 (No. 16265, 1982). We find that there are. Two of the items allege that guardrails were not provided to prevent falls from platforms. As the Secretary's brief implicitly concedes, however, there is a construction industry standard, section 1926.500(d)(1), that requires guardrails on "open-sided floors, platforms, and runways." The third item alleges a failure to require the use of safety belts on an unguarded roof edge. The construction industry standard on personal protective equipment, section 1926.28(a), "requir[es] the wearing of appropriate personal protective equipment" and cross-references 29 C.F.R. Part 1926, Subpart E, which contains a standard, section 1926.104, on safety belts.[[4]] Those standards govern the cited conditions.

Under Rule 15(b) of the Federal Rules of Civil Procedure, pleadings may be amended to conform to the evidence when an issue not raised by the pleadings has been tried by express or implied consent of the parties. Commissioner Wall would not amend, sua sponte, in the absence of an opportunity for Cardinal to argue whether amendment is appropriate, and whether it be prejudiced. Chairman Buckley would not amend here because there was no express consent to try whether the applicable construction standards had been violated. He would not find implied consent because he does not find that Cardinal squarely recognized that violations of the construction standards were in issue, much less that it consented to try these issues. See McWilliams Forge Co., 84 OSAHRC____, 11 BNA OSHC 2128, 2129-30, 1984 CCH OSHD І 26,979, p. 34,669 (No. 80-5868, 1984). We will not therefore, amend the pleadings to allege violations of the construction standards in Part 1926.

Accordingly, items 2b, 2c, and 3 of citation 2 are vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: December 6, 1985

RADER, Commissioner, dissenting:

I respectfully dissent from the majority's decision to vacate the citation items on the ground that Cardinal is not subject to the general industry standards set forth at Part 1910 of Title 29. In my view, the judge properly determined that Cardinal is engaged in a manufacturing process rather than a construction operation.

In finding the construction standards applicable to Cardinal, the majority relies primarily on the type of work activities performed by Cardinal's employees, concluding that such activities as carpentry, plumbing, roofing and electrical work are characteristic of the work normally performed at construction sites. The majority also reasons that these work duties are integrally related to Cardinal's primary "function," which the majority regards as construction work because Cardinal manufactures parts of housing and motel units. Thus, the majority's decision is based on two related but distinct concepts--the employees' specific work duties or the skills they represent on the one hand and the overall purpose or objective of their employment on the other. Neither concept, however, supports the majority's conclusion that Cardinal is engaged in construction work as that term is defined and used in the Secretary's standards.

The Commission has previously recognized that under the Secretary's standards the differentiation between general industry and construction cannot be based solely on the nature of the specific work duties or types of work activities in which employees are engaged. In B.J. Hughes, Inc., 82 OSAHRC 17/D5, 10 BNA OSHC 1545, 1982 CCH OSHD І 25,977 (No. 76-2165, 1982), the Commission rejected the Secretary's argument that cementing the casing of an oil well during drilling constitutes construction work because the employees worked with pumps, derricks, concrete pouring equipment, and material handling equipment of the sort normally used in construction work. The Commission reasoned that equipment of this type is frequently used in nonconstruction work as well, and noted that many of the construction standards regulating particular types of equipment have counterparts in the general industry standards governing the same equipment. In the present case, the specific types of Cardinal's work activities that the majority characterize as "construction" are in fact addressed by general industry as well as construction standards. Thus, 29 C.F.R. ї 1910.213, a general industry standard entitled "Woodworking machinery requirements," imposes requirements for various types of saws and other woodworking machinery, and is applicable generally to all types of woodworking operations. Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d 199 (9th Cir. 1980). Similarly, section 1910.241, "Hand and Portable Powered Tools and Other Hand-Held Equipment," governs many types of portable tools, both powered and non-powered. Section 1910.252 applies to "Welding, cutting, and brazing," and extensive regulations for working with electrical conductors and related apparatus appear in section 1910.137, "Electrical protective devices," and Subpart S, "Electrical," 29 C.F.R. її 1910.301-308, 1910.399.[[1]] These are all general industry standards that apply to the techniques, tools, and equipment used in Cardinal's operation.[[2]] Thus, the fact that Cardinal's employees perform carpentry, plumbing, and electrical work does not in itself mean that Cardinal's operation is controlled by the construction standards in Part 1926.[[3]]

Since the specific work duties conducted by Cardinal's employees are not dispositive of the question whether Cardinal is engaged in construction work under Part 1926, it is appropriate to consider, as does the majority, whether the construction standards govern the type of business in which Cardinal is engaged. See B.J. Hughes, supra, 10 BNA OSHC at 1547, 1982 CCH OSHD at p. 32,579. As the majority indicates, Cardinal fabricates housing units in a factory setting away from, and having no direct connection with, the actual site where the component units will be placed and finally assembled into a complete dwelling and then occupied. The majority concludes that such work constitutes construction because the type of work performed is the dispositive factor. [[4]] However, in my view the physical conditions under which Cardinal's employees perform this work are controlling.

The stated purpose of the Act is to assure "safe and healthful working conditions" by, among other things, "authorizing the Secretary of Labor to set mandatory occupational safety and health standards." Section 2(b), 29 U.S.C. ї 651(b). Since standards are a basic mechanism by which the purpose of the Act is to be achieved, it is appropriate in determining the scope of a particular set of standards to consider the nature of the working conditions sought to be regulated.

The physical configuration of Cardinal's facility is very much different from that normally encountered on the site or location of a building or structure. The use of an assembly line comprised of fixed work stations, the overall factory setting, and the generally controlled environment thereby provided, are obvious characteristics of a manufacturing rather than an on-site construction operation.[[5]] The basic environment in which Cardinal's employees perform their work is indeed exemplified by the citation items at issue dealing with unguarded platforms. Both the "felt rack platform" (an elevated work surface attached to the structure of Cardinal's building and containing a roller used to dispense roofing felt to the modules as they pass by) and the "scissors lift" (a hoisting device bolted to the floor and used to raise and lower employees to and from the roof areas) are devices typical of the machinery or equipment normally encountered in a manufacturing plant. They reflect working conditions of a manufacturing rather than construction nature, regardless of the fact that the construction standards as well as the general industry standards contain provisions generally regulating the hazard of a fall from elevated work surfaces. See Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977); Southern Railway v. OSHRC, 539 F.2d 335 (4th Cir.), cert. denied, 429 U.S. 999 (1976) (the nature of an employer's working conditions depends not only on the particular hazard presented at a certain work location but also on the overall "surroundings" in which the employee customarily perform their assigned tasks).

The fact that the modules or units Cardinal produces are manufactured in a factory setting is more significant than the fact that they will eventually be occupied as dwellings or residences. The construction standards as a whole indicate that regardless of the type of building or structure involved the performance of construction work necessarily implies some direct and tangible connection or relationship with the physical site or location of the structure. Thus, the construction standards contain a number of provisions, which have no counterpart in the general industry standards, dealing with such matters as the preparation of building sites and the assembly or completion of structures or structural components on site.[[6]] In addition, section 1926.13(c), a regulation promulgated under and interpreting section 107 of the Contract Work Hours and Safety Standards Act ("Construction Safety Act"), 40 U.S.C. ї 333, which authorizes the Secretary to establish safety and health standards applicable to federal construction contracts, recognizes a clear differentiation between the fabrication or assembly of construction materials and the performance of construction work at the site. In pertinent part this regulation provides:

A person who undertakes to perform a portion of a contract involving the furnishing of supplies or materials will be considered a "subcontractor" . . . if the work in question . . . is to be performed: (1) Directly on or near the construction site, or (2) by the employer for the specific project on a customized basis. Thus, a supplier of materials which will become an integral part of the construction is a "subcontractor" if the supplier fabricates or assembles the goods or materials in question specifically for the construction project. . . . If the goods or materials in question are ordinarily sold to other customers from regular inventory, the supplier is not a "subcontractor." Generally, the furnishing of prestressed concrete beams and prestressed structural steel would be considered manufacturing; therefore a supplier of such materials would not be considered a "subcontractor." An example of materials supplied "for the specific project on a customized basis" as that phrase is used in this section would be ventilating ducts, fabricated in a shop away from the construction job site and specifically cut for the project according to design specifications. On the other hand, if a contractor buys standardsize nails from a foundry, the foundry would not be a covered "subcontractor."

Since the Construction Safety Act has a similar purpose in providing safe and healthful working conditions for employees engaged in construction work, the scope of its coverage is relevant in resolving an analogous question of coverage under the Occupational Safety and Health Act. See Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947); Griffin & Brand of McAllen, Inc., 78 OSAHRC 48/C13, 6 BNA OSHC 1702, 1978 CCH OSHD І 22,829 (No. 14801, 1978). Indeed, the scope of the Construction Safety Act is particularly persuasive here because the substantive safety and health standards promulgated under that statute and set forth in 29 C.F.R. Part 1926 are the source for the occupational safety and health standards applicable to all employers engaged in construction work under the Occupational Safety and Health Act. 29 C.F.R. ї 1910.12(a). See 29 U.S.C. ї 653(b)(2) (standards issued pursuant to 40 U.S.C. ї 333 are deemed occupational safety and health standards under the Act.) When he adopted and extended the Construction Safety Act standards as OSHA standards applicable to all construction work, the Secretary defined "work for construction" by explicitly referring to the "discussion of these terms in ї 1926.13 of this title."[[7]] Section 1926.13
is therefore pertinent to the extent that it differentiates between manufacturing and construction and explains the particular circumstances under which a manufacturing or fabrication operation could be considered construction work.[[8]]

The record indicates that no single modular unit can by itself constitute a habitable dwelling. It may require as many as 20 units to form a complete structure at the building site, where the units are taken by truck and placed on a pre-existing foundation. The record does not show, nor does Cardinal contend, that its employees either transport modules to the site where they are to be installed or perform any final assembly or installation on the site. Cardinal's plant manager testified that Cardinal produces units for three basic types of occupancy --apartments, houses, and motels--in a fixed and prescribed production sequence as summarized in Judge Salyers' decision. It does not appear, nor is there any contention, that Cardinal produces units on a customized basis for particular projects. Applying the criteria set forth in section 1926.13(c), I conclude that the type of work in which Cardinal is engaged does not constitute construction within the meaning of section 1910.12(b). Cf. Dravo Corp., 82 OSAHRC 30/A2, 10 BNA OSHC 1651, 1657, 1982 CCH OSHD І 26,076, p. 32,814 (No. 14818, 1982) (a pipe shop associated with a shipyard which fabricates components such as ladders, nozzles, and sewage holding tanks is a manufacturing operation not subject to the Secretary's shipbuilding standards).

Finally, while I would not necessarily regard the Standard Industrial Classification Manual as controlling, I believe that the majority errs in dismissing the manual as having no relevance whatever. The manual assigns industry codes on the basis of "primary activity," determined by the "principal product or group of products produced or distributed, or services rendered." Id. at 12. It therefore directly addresses the question presented in this case, namely, the proper characterization of an employer engaged in the production of prefabricated housing units. Furthermore, the Secretary relies on the codes assigned in the manual to distinguish construction from manufacturing employers for the purpose of determining inspection priorities. [[9]] See OSHA Instruction CPL 2.25F, Scheduling System for Programmed Inspections, Appendix B, 2 BNA Ref. File 21:9295, :9305-07, 3 CCH ESHG І 8671, pp. 8301-02. The manual is also widely used by other government agencies and by private industry for classification, compilation of statistics and insurance purposes. I therefore believe it is relevant and does provide guidance in classifying Cardinal's business activities.

For these reasons, I respectfully dissent from the majority's decision.

FOOTNOTES:

[[1]] Section 1910.12 provides in part:

ї 1910.12 Construction work.

(a) Standards. The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work.
* * *
(b) Definition. For purposes of this section, "construction work" means work for construction, alteration, and/or repair, including painting and decorating. See discussion of these terms in ї 1926.13 of this title.

[[2]] Paragraphs (b) of both regulations are nearly identical. Section 1926.1051(b) states:

ї 1926.1051 Effective dates (specific).
* * *
(b)(1) To the extent that the standards in this part [1926] apply to light residential construction, their application is delayed until September 27, 1971, whereupon the standards shall apply to contracts subject to the Contract Work Hours and Safety Standards Act which are advertised on or after that date and to such contracts which may be negotiated when the negotiations commence on or after that date.

(2) For the purpose of this paragraph, the term "light residential construction" is limited to the construction" of homes and apartments which do not exceed three stories in height, and which do not have an elevator.

[[3]] We are unconvinced by the Secretary's other arguments. OMB's Standard Industrial Classification Manual was never intended to interpret section 1910.12 "but was developed for use...for purposes of facilitating the collection, tabulation, presentation and analysis of data." Id. at p. 9. Although the Commission discussed whether violations of the general industry standards occurred in Fleetwood Homes and Prowler Travel Trailers, preemption by the construction industry standards was not raised in those cases.

[[4]] Our conclusion is consistent with those drawn by OSHA when it examined the question of what standards in Part 1910 are preempted by those in Part 1926. OSHA has published an "Identification of General Industry Safety and Health Standards (29 C.F.R. Part 1910) Applicable to Construction Work," 44 Fed. Reg. 8577 (1979), listing the standards in Part 1910 that apply to construction work. Although OSHA identified sections 1910.23(b)(5) and 1910.132(b) and (c) as applicable, it did not list sections 1910.23(c)(1) or 1910.132(a), the standards cited here. We intimate no opinion, of course, on whether OSHA's statements on the applicability of other general industry standards are correct.

[[1]] The Part 1926 counterparts of these standards are Subpart I, "Tools--Hand and Power," 29 C.F.R. її 1926.300-05, including section 1926.304, "Woodworking tools"; Subpart J, "Welding and Cutting"; and Subpart K, "Electrical," specifically sections 1926.400, "General requirements," 1926.401, "Grounding and bonding," and 1926.402, "Equipment installation and maintenance."

[[2]] The performance of carpentry work is demonstrated by the fact that Cardinal's employees cut lumber and other materials, which they use in assembling floors, walls, and roofs; the employees also install doors and windows. The only testimony pertaining to plumbing work is the compliance office's mention of bathroom facilities and kitchens and the only actual reference to electrical wiring appears in a statement by Cardinal's counsel at the hearing that Cardinal installs electrical circuits in each modular unit. Since the units are intended for final assembly at the site where they will be used, it would appear that the units leave Cardinal's facility with all interior wiring and plumbing completed.

Part 1910 contains no standards expressly governing work on roofs. Compare section 1926.451(u)(3) (sloped roofs), section 1926.500(b) (roof openings) and section 1926.500(g) (low-pitched roofs). However, it is apparent on the record here that the assembly of the roof portion of the modules involves nothing more than basic carpentry and labor skills and, with the possible exception of felt and shingles, materials similar to those used in fabricating other portions of the module structure. Therefore, the fact that the modules include a finished roof surface is not in itself a distinction sufficient to justify applying the construction standards rather than general industry standards to Cardinal's operation.

[[3]] The majority correctly notes that jobs which in themselves do not constitute construction work may nevertheless justify application of the construction standard if they are directly and integrally related to the performance of construction work. See United Geophysical Corp., 81 OSAHRC 77/D6, 9 BNA OSHC 2117, 2121, 1981 CCH OSHD І 25,579, p. 31,906 (No .78-6265, 1981), aff'd without published opinion, 683 F.2d 415 (5th Cir. 1982). However, the converse is also true. Jobs that could be regarded as construction type work are not controlled by the construction standards when they are performed solely as part of a nonconstruction operation. Royal Logging Co., 79 OSAHRC 84/A2, 7 BNA OSHC 1744, 1979 CCH OSHD І 23,914 (No. 15169, 1979), aff'd, 645 F.2d 822 (9th Cir. 1981).

[[4]] The majority concludes that the type of work performed by Cardinal falls within the definition of "light residential construction" set forth in sections 1910.17(b) and 1926.1051(b). However, the two provisions pertaining to "light residential construction" on which the majority relies simply refer to"construction" without defining that term or otherwise giving an indication of its meaning in the context in which it is used. It is even questionable whether the modular units Cardinal produces can appropriately be characterized as "light residential" as the majority implies. Cardinal's plant engineer testified that the units it builds are primarily used in apartments and motels and occasionally houses. See the discussion in the text infra. Motels would not appear to constitute a "light residential" form of housing as that phrase is defined at sections 1910.17(b)(2) and 1926.1051(b)(2).

[[5]] The majority's reference to construction work performed within pre-existing structures is inapposite. The question in this case is not whether certain construction work may be performed indoors or inside a completed structure but rather whether a facility that merely assembles components of a housing unit without any connection to the site of their eventual erection and use is a construction workplace. Arguably, Cardinal would be engaged in construction work if it were to make some alteration or repair of its plant facility. See Rochester Prod. Div., General Motors Corp., 85 OSAHRC ____, 12 BNA OSHC 1324, 1985 CCH OSHD І 27,257 (No. 80-5439, 1985)(construction standards cited for trench dug in the floor of a manufacturing plant for the installation of a trough to collect oil from machinery). That, however, is not the issue before us here.

[[6]] For example, Subpart 0 (sections 1926.600-.606), entitled "Motor Vehicles, Mechanized Equipment, and Marine Operations," imposes requirements for vehicles and other equipment used in site preparation, such as dump trucks (section 1926.601), earthmoving and other excavation equipment (section 1926.602), and pile driving equipment (section 1926.603). Other standards involving site preparation include the provisions at section 1926.602(a)(3) pertaining to access roadways and grades; section 1926.604 governing site clearing; and Subpart P, entitled "Excavations, Trenching, and Shoring," which imposes requirements for sloping and shoring and protecting employees from other hazards present at trenches and excavations. The erection of structures on site is governed by such standards as those in Subpart Q, "Concrete, Concrete Forms, and Shoring"; Subpart R "Steel Erection"; and Subpart S, "Tunnels and Shafts, Caissons, Cofferdams, and Compressed Air."

[[7]] See note 1 of the majority opinion. Although the Secretary did not adopt section 1926.13 under the OSH Act, he expressly referred to section 1926.13 for the definition of the term "construction," and plainly considered that regulation relevant for the purpose of determining what constitutes construction work under the OSH Act. The Secretary declined to adopt section 1926.13 and other rules interpreting the Construction Safety Act because they included a restriction on the class of employers subject to the Construction Safety Act. Since the OSH Act applies to all employees engaged in a business affecting interstate commerce, the Secretary concluded that the limitation of the Construction Safety Act to "contractors and subcontractors" would be inappropriate under the OSH Act. Thus, the Secretary stated that "the incorporation by reference of Part 1926 in ї 1910.12 is not intended to include references to interpretative rules having relevance to the application of the Construction Safety Act but having no relevance to the application of the Occupational Safety and Health Act." See New England Telephone & Telegraph Co., 4 BNA OSHC 1838, 1976-77 CCH OSHD І 21,267 (No. 9627, 1976), rev'd on other grounds, 589 F.2d 81 (1st Cir. 1978); Bechtel Power Corp., 76 OSAHRC 38/E2, 4 BNA OSHC 1005, 1975-76 CCH OSHD І 20,503 (No. 5063, 1976), aff'd, 548 F.2d 249 (8th Cir. 1977).

[[8]] Other statutes relating to federally financed or assisted construction are also relevant to the issue before the Commission here. Section 1926.13(a) notes that the term "construction . . . used in section 107 of the [Construction Safety] Act [is] also used in section 1 of the Davis-Bacon Act (40 U.S.C. 276a), providing minimum wage protection on Federal construction contracts, and section 1 of the Miller Act (40 U.S.C. 270a), providing performance and payment bond protection on Federal construction contracts." That section goes on to express the Secretary's determination that "[t]he use of the same or identical terms in these statutes which apply concurrently with section 107 of the [Construction Safety] Act have considerable precedential value in ascertaining the coverage of section 107."

Regulations for the implementation of labor standards under the Davis-Bacon Act and related statutes recognize the same distinction between construction and manufacturing expressed in section 1926.13(c). Thus, 29 C.F.R. ї 5.2(i) defines the terms "building" and "work" to include "construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work." Section 5.2(j) defines "construction" as work performed "on a particular building" or "at the site thereof, including "installation on the site of the work of items fabricated off-site" and the "manufacturing or furnishing of materials, articles, supplies or equipment on the site of the building or work . . . . " (emphasis added). Under section 5.2(1)(1) "site of the work" is expressly limited to "the physical place or places where the construction called for in the contract will remain when work on it has been completed" and to "other adjacent or nearby property . . . which can reasonably be said to be included in the 'site.'" "Fabrication plants" in particular "are part of the 'site of the work' provided they are dedicated exclusively, or nearly so, to the performance of the contract or project, and are so located in proximity to the actual construction location that it would be reasonable to include them."

[[9]] Thus, employers in manufacturing industries as designated by their SIC codes are scheduled for inspection according to the injury rate for each industry having an injury rate greater than the national average. See Phoenix Forging Co., 85 OSAHRC ___, 12 BNA OSHC 1317, 1985 CCH OSHD І 27,256 (No. 82-398, 1985). Employers in construction industries are distinguished from those in manufacturing because all construction industries have an injury rate in excess of the national average and thus qualify for inspection under the Secretary's program to concentrate inspections in the most hazardous industries.