BROWN & ROOT, POWER PLANT DIVISION

OSHRC Docket No. 76-2938

Occupational Safety and Health Review Commission

November 5, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

William L. Bedman, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This case is before the Commission for review under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   On June 9, 1976, the Secretary of Labor ("the Secretary") issued a citation to Brown & Root, Power Plant Division ("Brown & Root").   The three items of the citation alleged that Brown & Root did not comply with the safety standard at 29 C.F.R. §   1926.550(a)(17) and therefore violated section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2).   Administrative Law Judge Henry Martin, Jr., vacated all three items.   The Secretary petitioned for review of the judge's vacation of two of the three items.   Review was granted by Chairman Cleary on the following issue:

Whether the Administrative Law Judge erred in concluding that the standard at 29 CFR §   1926.550(a)(17), which incorporates by reference Power Crane and Shovel Association Mobile Hydraulic Crane Standard No. 2, is advisory.

I

Section 1926.550(a)(17)   [*2]   is a general requirement applicable to cranes and derricks used in construction work.   The standard states that "The employer shall comply with Power Crane and Shovel Association Mobile Hydraulic Crane Standard No. 2." (Emphasis added.) The two items before us (items 1(a)(1) and 1(a)(2)) allege that, contrary to this standard, Brown & Root failed to comply with section 8.3.3 of the Power Crane and Shovel Association Mobile Hydraulic Crane Standard No. 2 ("PCSA-MHCS No. 2").   That section reads as follows:

Operation - In general, established operating safety rules where applicable should be observed in performing all operating functions.   Operating safety rules are found in sources such as the following:

A.   USA Standard Safety Code For Crawler, Locomotive and Truck Cranes, USAS [(ANSI)] B30.5. n1

B.   Power Crane and Shovel Association - '125 Ways to Better Power Shovel - Crane Operation.'

C.   Manufacturer's Care and Operation Manuals.   It is recognized that written rules cannot cover all situations which might be encountered on the job.   To meet such unanticipated situations the operator must be able to supplement his own rules based on good judgment.   [Emphasis added.]   [*3]  

Item 1(a)(1) of the citation alleged that section 5-3.2.3(f) of the USA Standard Safety Code for Crawler, Locomotive and Truck Cranes, USAS (ANSI) B30.5 -- 1968 ("ANSI B30.5"), was violated when the operator of a crane did not avoid carrying a load over persons.   that section states that "[t]he operator should avoid carrying loads over people." (Emphasis added.) Item 1(a)(2) of the citation alleged that section 5-3.4.6 of ANSI B30.5 was violated when a 15 ton hydraulic crane sitting near the edge of an excavation lacked firm footing for outriggers.   That section states.

5-3.4.6 Footing

Firm footing uniformly level within one percent, should be provided.   Where such a footing is not otherwise supplied, it should be provided by substantial timbers, cribbing, or other structural members sufficient to distribute the load so as not to exceed safe bearing capacity of the underlying material.   [Emphasis added.]

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n1 In 1969 the designation of this standard was changed from a "USA Standard" to an "ANSI Standard" when the United States of America Standards Institute changed its name to the American National Standards Institute.

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Judge Martin concluded that the word "should" as used in both PCSA-MHCS No. 2 and ANSI B30.5 is advisory and not mandatory. He reasoned that, although section 1926.550(a)(17) uses the mandatory term "shall" and therefore generally requires compliance with PCSA-MHCS No. 2, non-mandatory provisions of PSCA-MHCS No. 2 and ANSI B30.5 are not thereby made mandatory. The judge noted that 29 C.F.R. 1926.32(p) and (q) state that "[s]hall means mandatory" and "[s]hould means recommended", and that section V of the introduction to ANSI B30.5 states that a standard using the word "shall" is mandatory and that a standard using "should" is advisory. n2 Judge Martin therefore vacated the items. n3

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n2 Section V of the introduction to ANSI B30.5 states: "Mandatory rules of this code are characterized by the use of the word 'shall.' If a rule is of an advisory nature it is indicated by the use of the word 'should,' or is stated as a recommendation."

n3 The judge also commendably exercised his discretion to make alternative findings of fact to expedite disposition of the case if his view of the case was not adopted by Commission.

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II

On review, the Secretary argues that the judge's conclusion is not in accordance with the definition of an occupational safety and health standard in section 3(8) of the Act, 29 U.S.C. §   652(8).   Inasmuch as section 3(8) defines an occupational safety and health standard as a standard that "requires" conditions or practices, the Secretary maintains that "it would be inconsistent with that definition to read [29 CFR §   1926.550(a)(17)] as advisory, especially since on its face it mandatorily applies to all hydraulic cranes." The Secretary asserts that all parts of the PCSA-MHCS No. 2 and the ANSI B30.5 standards were originally voluntary guidelines, and therefore always advisory until adopted by the Secretary pursuant to section 6(a), 29 U.S.C. §   655(a).   Once adopted by the Secretary as occupational safety and health standards, they became mandatory, he argues.

Brown & Root did not file a brief on review.   In its post-hearing brief before the judge, Brown & Root argued that industry standards using the word "should" that are incorporated by reference into OSHA standards using "shall" retain their [*6]   advisory nature.   It cited Edward Hines Lumber Co., 76 OSAHRC 126/A2, 4 BNA OSHC 1735, 1976-77 OSHD P21,136 (No. 7606, 1976).

Among the Commission's responsibilities is the establishment of a uniform and orderly framework of national law in adjudications involving occupational safety and health.   See S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1264, 1979 CCH OSHD P23,480 at 28,437 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979).   The Commission and reviewing courts have previously examined similar problems arising under other standards and have concluded that standards adopted under section 6(a) of the Act, 29 U.S.C. §   655(a), that are derived from advisory source standards are advisory under the Act.   Marshall v. Union Oil Co. of California, 616 F.2d 1113 (9th Cir. 1980); Marshall v. Anaconda Co., 596 F.2d 370 (9th Cir. 1979); A. Prokosch & Sons Sheet Metal, Inc., 80 OSAHRC    , 8 BNA OSHC 2077, 1980 CCH OSHD P24,840 (Nos. 76-406 and 76-576, 1980); General Dynamics Corp., Electric Boat Division, 80 OSAHRC    , 8 BNA OSHC 1360, 1980 CCH OSHD P24,416 (No. 78-3290, 1980); Interlake, Inc., 80 OSAHRC      [*7]   , 8 BNA OSHC 1414, 1980 CCH OSHD P24,453 (No. 78-2462, 1980); Wheeling-Pittsburgh Steel Corp., 77 OSAHRC 81/C10, 5 BNA OSHC 1495, 1978 CCH OSHD P23,056 (Nos. 10611, 11327 & 14366, 1977), aff'd sub nom. Marshall v. Pittsburgh Des-Moines Steel Co., 584 F.2d 638 (3d Cir. 1978); Kennecott Copper Corp., 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1976-77 CCH OSHD P20,860 (No. 5958, 1976), aff'd, 577 F.2d 1113 (10th Cir. 1977); McHugh & McHugh, 77 OSAHRC 35/A2, 5 BNA OSHC 1165, 1977-78 CCH OSHD P21,629 (No. 13010, 1977); United States Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1977-78 CCH OSHD P21,795 (Nos. 10825 & 10849, 1977).

The sections of ANSI B30.5 and PCSA-MHCS No. 2 cited here use the word "should".   The judge correctly noted that "should" as used in ANSI B30.5 was intended to signify an advisory standard and that the definitions of "shall" and "should" at § §   1926.32(p) and (q) are to the same effect.   A. Prokosch & Sons, 8 BNA OSHC at 2081, 2082 (lead and dissenting opinions).   Accordingly, we conclude that the cited ANSI and PCSA-MHCS standards are advisory and cannot be the basis for finding a violation of section 5(a)(2) the Act.

The judge's decision [*8]   is affirmed.

SO ORDERED.