HARBERT CONSTRUCTION CORPORATION

OSHRC Docket No. 13578

Occupational Safety and Health Review Commission

November 2, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Norman Winston, Assoc. Regional Solicitor, U.S. Department of Labor

John P. Scott, Jr., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

A decision of Administrative Law Judge John J. Larkin is before the Commission for review under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. In his decision, Judge Larkin affirmed a citation alleging that respondent violated section 5(a)(2) of the Act by failing to comply with the standard at 29 CFR 1926.106(a). n1 We affirm the Judge's decision.

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n1 The text of this standard is set forth infra.

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This case was submitted to the Judge for decision on the basis of stipulated facts. The stipulation entered into by the parties reads as follows:

On May 15, 1975, Respondent's employees were laying a gas pipeline at Chickasaw Creek at the Port of Chickasaw, Alabama. Two employees of Respondent were in Respondent's 14-foot [*2] aluminum skiff (9-1/2 HP outboard motor) picking up Respondent's floats (previously cut loose from the pipeline at the bottom of the creek by a diver) in water approximately 12 to 14 feet in depth. The skiff capsized and one of the employees drowned. Neither of the two employees was wearing a life jacket or buoyant vest while performing their aforesaid work in the skiff, which took approximately 30 to 45 minutes. The Respondent had purchased and furnished two U.S. Coast Guard approved life jackets for the employees in the skiff, and said jackets were in the skiff at a point next to and convenient to the two employees (under their respective seats) on May 15 when the skiff capsized. The Respondent's foreman had previously instructed these employees that they should wear these life jackets while over or near the water, but they elected not to do so. The employee who drowned stated to another employee who had called the absence of his wearing the life jacket to his attention, that he would grab the life jacket if the skiff capsized. The respondent's aforesaid foreman, while standing a few feet from these employees while they were performing their work in the skiff and at a time [*3] substantially prior to the capsizing of the skiff, observed that they were not wearing these life jackets.

Respondent argued that this stipulation established that it had furnished life jackets to its employees and, therefore, that it complied with the requirements of 1926.106(a). Judge Larkin rejected respondent's argument. He stated that he was bound by the Commission's decision in G.A. & F.C. Wagman, Inc., 74 OSAHRC 78/B10, 2 BNA OSHC 1297, 1974-75 CCH OSHD para. 18,882 (No. 1284, 1974), in which it was held that the cited standard "requires that the life jackets be provided and used" (emphasis added). In light of the holding in Wagman and on the basis of the stipulated facts, the Judge affirmed the citation and assessed the proposed $100 penalty.

Before the Commission, respondent argues that the Judge erred in affirming the citation. Respondent asserts that Wagman erroneously interpreted 1926.106(a) and that, as so construed, the standard failed to give respondent adequate notice of the conduct that it required. We reject respondent's arguments.

The cited standard is paragraph (a) of 1926.106, which reads as follows:

1926.106 Working over or [*4] near water.

(a) Employees working over or near water, where the danger of drowning exists, shall be provided with U.S.. Coast Guard approved or buoyant work vests.

Paragraph (b) of the section provides:

Prior to and after each use, the buoyant vests or life jackets shall be inspected for defects which would alter their strength or buoyancy. Defective units shall not be used.

In construing these provisions in Wagman, the lead opinion, authored by former Commissioner Van Namee, stated:

. . . It is a baisc rule of statutory construction that a statute (or regulation) 'should be construed so that effect is given to all of its provisions, so that no part will be inoperative or superfluous, void, or insignificiant . . .' 2 A, C.D. Sands, Statutes and Statutory Construction, Sec. 46.06 (4th Ed. 1974). In this regard, we note that if part (a) of the standard were interpreted to require only the provision of life jackets, the effect of part (b)'s requirement that life jackets be inspected before and after each use, would become insignificant. Furthermore, part (a) is qualified in its application to situations 'where the danger of drowning exists.' To give sense to the qualification, [*5] a use requirement is necessarily implicit in the standard. Accordingly, we conclude that 29 CFR 1926.106(a) requires that life jackets be provided and used.

2 BNA OSHC at 1297-8, 1974-75 CCH OSHD para. 18,882 at p. 22,702-3.

Respondent argues that the rationale of Wagman is erroneous in that paragraph (b) "in no way implies that an employer is also required to assure the use of vests". In respondent's view paragraph (b) requires only that an employer must "make sure that the vests are not defective when and if they are used" (emphasis in original).

We are not persuaded by respondent's arguments to depart from our precedent. Giving effect to the rule of statutory construction that regulations are to be construed in favor of their beneficiaries and to effectuate Congressional objectives, Irvington Moore, Division of U.S. Natural Resources v. O.S.H.R.C., 556 F.2d 431, 435 (9th Cir. 1977) and Brennan v. O.S.H.R.C. & Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974), Chairman Cleary concludes that the interpretation of 1926.106(a) expressed in Wagman is correct. Commissioner Barnako concurs in the result solely on the basis of the Commission precedent [*6] established in Wagman. He notes, however, that respondent has persuasively argued that wagman was incorrectly decided and he thinks that decision should be re-examined.

For the same reasons, respondent's claim that it did not have constitutionally adequate notice of the conduct required by the standard is also rejected. See Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). Chairman Cleary also notes that the events giving rise to the inspection and citation in this case occurred subsequent to the issuance of the Commission's decision in Wagman. This previous interpretation of the involved standard substantially detracts from respondent's argument that it lacked fair notice of the standard's requirements. Cf. Rose v. Locke, 96 S.Ct. 243, 245 (1975); Wainwright v. Stone, 414 U.S. 21 (1973).

Accordingly, the Judge's decision, finding respondent in violation of section 5(a)(2) of the Act for failure to comply with the standards at 29 CFR 1926.106(a) and assessing a $100 penalty, is affirmed.

It is so ORDERED.