GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION

OSHRC Docket No. 78-3290

Occupational Safety and Health Review Commission

April 30, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

Richard W. Benka, for the employer

OPINION:

DECISION

BY THE COMMISSION:

An April 9, 1979, order of Administrative Law Judge Foster Furcolo, granting Respondent's Motion for Partial Summary Judgment, is before the Commission on interlocutory appeal.

On June 29, 1978, the Secretary of Labor ("Secretary") issued to Respondent, General Dynamics Corporation, one "serious" and one "nonserious" citation.   Each of the citations contained numerous items alleging violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act"), for failure to comply with various provisions of 29 C.F.R. §   1910.179 and one item alleging noncompliance with 29 C.F.R. §   1910.180(b)(2).

On March 15, 1979, General Dynamics moved for summary judgment as to items 1A(a), 1A(b), 1A(c), 1B(a), 1B(b), 1C, 2(a), 2(c) and 2(d) of citation 1 (alleging serious violations) and items 5(a), 5(b), 6, 7, 8(b), 9, 11, 13(a), 13(b), 15(a), 15(d), 15(e), 17(a), 18, and 27(c) of citation 2 (alleging nonserious violations). n1 General Dynamics argued that [*2]   the provisions of 29 C.F.R. §   1910.179 for which it was cited are, under the language of subsection 179(b)(2), n2 advisory with respect to overhead and gantry cranes constructed and installed before August 31, 1971.   It also contended that the standard at 29 C.F.R. §   1910.180(b)(2), n3 cited in item 27(c) of citation 2, is advisory with respect to crawler, locomotive, and truck cranes constructed and used before August 31, 1971.

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n1 The citations involved the following subsections of §   1910.179: (b)(6)(ii), (c)(2), (d)(2)(i), (d)(3), (e)(6)(i), (e)(6)(ii), (g)(1)(i), (g)(1)(v), (g)(2)(i), (g)(2)(ii), (g)(2)(iii), (g)(4)(i), (g)(6), and (i).   Item 27(c) involved the standard at §   1910.180(b)(2).

n2 §   1910.179 Overhead and gantry cranes.

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(b) General requirements

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(2) New and existing equipment. All new overhead and gantry cranes constructed and installed on or after August 31, 1971, shall meet the design specifications of the American National Standard Safety Code for Overhead and Gantry Cranes, ANSI B30.2.0-1967.   Overhead and gantry cranes constructed before August 31, 1971, should be modified to conform to those design specifications by February 15, 1972, unless it can be shown that the crane cannot feasibly or economically be altered and that the crane substantially complies with the requirements of this section.

n3 §   1910.180 Crawler locomotive and truck cranes.

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(b) General requirements

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(2) New and existing equipment. All new crawler, locomotive, and truck cranes constructed and utilized on or after August 31, 1971, shall meet the design specifications of the American National Standard Safety Code for Crawler, Locomotive, and Truck Cranes, ANSI B30.5-1968.   Crawler, locomotive, and truck cranes constructed prior to August 31, 1971, should be modified to conforn to those design specifications by February 15, 1972, unless it can be shown that the crane cannot feasibly or economically be altered and that the crane substantially complies with the requirements of this section.

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In support of its motion, Respondent presented affidavits from four employees indicating that the cranes involved in the motion had been constructed and installed before August 31, 1971.   One of the affidavits was by Respondent's manager of lifting and handling equipment who stated that he had determined, from a study of records made and kept in Respondent's regular course of business, that each of the cranes involved in the items for which summary judgment was sought had been purchased before 1971.   The other affidavits were by three of Respondent's employees who stated that they had personal knowledge that each crane involved in the citations had been constructed and installed before August 31, 1971.

The Secretary opposed the motion for summary judgment. In support of his opposition, the Secretary submitted the affidavit of Compliance Officer Hatcher, who stated that certain items of the citations involved fatal or serious electric shock hazards, that one item involved a fall hazard of 100 feet, and that the other items involved burn, tripping, and other hazards.

On April 9, 1979, Judge Furcolo   [*4]   entered an order granting the Respondent's motion "as to Items 1A-C, 2(a), and 2(d) of Citation No. 1; and Items 6, 7, 8(b), 13(a), 13(b), 15(a), 15(d), 15(e), 17(a) and 18 of Citation No. 2 because the allegations concern 'design specifications' exempted by the standard at 29 CFR 1910.179(b)(2)." The judge denied the motion "as to Item 2(c) of Citation No. 1; and Items 5(a), 5(b), 9, and 11 of Citation No. 2 because the allegations may be of hazardous conditions that do not concern 'design specifications' exempted by the standard at 29 CFR 1910.179(b)(2)." He also denied the motion "as to Item 27(c) of Citation No. 2 because the allegations may be of hazardous conditions that do not concern 'design specifications' exempted by the standard at 29 CFR 1910.180(b)(2)."

Pursuant to the Secretary's request, the judge, on April 30, 1979, certified that his ruling granting the motion for summary judgment as to certain items "involves important questions of law concerning which there is substantial ground for difference of opinion; and an immediate appeal will materially expedite the proceedings." n4 On May 8, 1979, at the request of Respondent, the judge made the same certification with   [*5]   respect to that part of his order denying portions of Respondent's motion.   Also on May 8, the Secretary moved the Commission for an interlocutory appeal of the judge's order granting the motion for summary judgment and for a stay of the proceedings, pursuant to former rule 75(d) of the Commission's Rules of Procedure, 37 Fed. Reg. 20,237, 20,242 (1972). n5 The Commission stayed the proceedings on May 22, 1979, but since the judge certified his ruling pursuant to former rule 75(c), the appeals are before us as a matter of right.

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n4 Former rule 75(c) of the Commission's Rules of Procedure, 37 Fed. Reg. 20,237, 20,242 (1972), sets out the procedure for appeal as of right:

Rule 75 Interlocutory appeals; special; as of right.

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(c) Interlocutory appeal from a ruling of the judge shall be allowed as of right where the judge certifies that: (1) the ruling involves an important question of law concerning which there is substantial ground for difference of opinion; and (2) an immediate appeal from the ruling will materially expedite the proceedings. . . .

Interlocutory appeals are now governed by a new rule 75 which became effective on January 1, 1980. 44 Fed. Reg. 70,106, 70,111 (1979) (to be codified in 29 C.F.R. §   2200.75).   As noted, however, the interlocutory appeal in this case is before us under former rule 75(c).

n5 Rule 75 Interlocutory appeals; special; as of right.

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(d) Neither the filing of a petition for interlocutory appeal, nor the granting thereof as provided in paragraphs (b) and (c) of this section, shall stay the proceedings before the Judge unless such stay is specifically ordered by the Commission.

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The issues presented by these interlocutory appeals have been considered previously by the Commission in U.S. Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1977-78 CCH OSHD P21,795 (Nos. 10825 & 10849, 1977); Pittsburgh-Des Moines Steel Co., 77 OSAHRC 75/E6, 5 BNA OSHC 1420, 1977-78 CCH OSHD P21,804 (No. 13708, 1977), aff'd, 584 F.2d 638 (3d Cir. 1978); and 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., supra. We held that those provisions of section 1910.179 that originate from the "construction and installation" requirements of ANSI B30.2.0-1967 set out in chapter 2-1 of that standard are advisory with respect to overhead and gantry cranes purchased and installed prior to August 31, 1971.   All of the provisions of section 1910.179 involved in Respondent's motion for summary judgment originate from those requirements.   Because section 1910.180(b)(2) is derived from a section of an ANSI source standard that is essentially identical to the [*7]   section of the ANSI source standard for section 1910.179(b)(2), n4 it is apparent that the provisions of section 1910.180 also must be considered advisory if the crawler, locomotive, or truck crane was "constructed and utilized" prior to August 31, 1971.

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n4 The source for §   1910.179 is the American National Standards Institute (ANSI) standard at B30.2.0-1967, and the source for §   1910.180 is the ANSI standard at B30.5-1968.   See 29 C.F.R. §   1910.189.   Section IV of the introduction to B30.2.0-1967 provides:

Section IV New and Old Installations

After the date on which this Code becomes effective, all new construction and installations shall conform to its rules.   Equipment installed prior to that date should be modified to conform to its rules unless administrative or regulatory authorities deem that the equipment as installed cannot economically be altered and that the equipment substantially complies with the requirements of the Code.

This provision is the source for §   1910.179(b)(2).   Section IV of the introduction to B30.5-1968 provides:

Section IV New and Old Cranes

One year after the date on which this Code becomes effective, all new cranes shall conform to these rules.   Cranes maufactured prior to that date should be modified to conform to these rules, unless it can be shown that the crane cannot feasibly or economically be altered and that the crane substantially complies with the requirements of the Code.

This provision is the source for §   1910.180(b)(2).

The next section of the introduction to both ANSI standards provides:

Section V Mandatory and Advisory Rules

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.

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Accordingly, there being no dispute that the cranes at issue were in operation before August 31, 1971, the judge's order is affirmed to the extent it granted Respondent's Motion for Partial Summary Judgment and vacated to the extent it denied Respondent's motion.   Respondent's Motion for Partial Summary Judgment should be and hereby is granted in its entirety.   Items 1A(a), 1A(b), 1A(c), 1B(a), 1B(b), 1C, 2(a), 2(c) and 2(d) of citation 1, and items 5(a), 5(b), 6, 7, 8(b), 9, 11, 13(a), 13(b), 15(a), 15(d), 15(e), 17(a), 18 and 27(c) of citation 2 are vacated.   This case is remanded to the judge for further proceedings consistent with this opinion. n5

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n5 Chairman Cleary notes that while, in the past, he has dissented on the issue involved in this case, see U.S. Steel Corp., supra (Cleary, Commissioner, concurring and dissenting); Pittsburgh-Des Moines Steel Co., supra (Cleary, Commissioner, dissenting), the courts of appeals have sustained the majority view.   See Pittsburgh-Des Moines Steel Co., supra; Anaconda Co., 78 OSAHRC 9/A2, 6 BNA OSHC 1372, 1978 CCH OSHD P22,530 (No. 77-2035, 1978) (ALJ), aff'd, 596 F.2d 370 (9th Cir. 1979). That view is our precedent.   He believes that the precedent "should be adhered to in the interest of reasonable expectancy in the application of the standards involved." Wheeling-Pittsburgh Steel Corp., 5 BNA OSHC at 1496, 1978 CCH OSHD at pp. 27,866-867 (Cleary, Commissioner, concurring); see Westinghouse Electric Corp. v. OSHRC, No. 79-1556, slip op. at 8 (7th Cir. March 25, 1980).

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So ORDERED.