NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.  

OSHRC Docket No. 15046

Occupational Safety and Health Review Commission

November 28, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, USDOL

Shannon T. Mason, Jr. and William M. Ferguson, for the employer

Robert E. Mann, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678, hereinafter "the Act".   A decision of Administrative Law Judge Joseph Chodes is before the Commission pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i).   In his decision the judge affirmed citations alleging serious violations of the Act for failure to comply with the standards at 29 C.F.R. §   1916.66(i) and 29 C.F.R. §   1916.61(a), a willful violation of the Act for failure to comply with the standard at 29 C.F.R. §   1916.66(o), and an other than serious violation of the Act for failure to comply with the standard at 29 U.S.C. §   1910.309(b).   The judge assessed penalties totalling $9,986.   For the reasons set forth below, we reject most of Respondent's exceptions to the judge's decision but remand the case for further proceedings to determine whether the citations were validly issued.

I

Following an [*2]   inspection of its shipbuilding and ship repair facilities in Newport News, Virginia, from August 6 to August 22, 1975, the instant citations were issued to Respondent, Newport News Shipbuilding & Drydock Co. ("Newport").   With the exception of the other than serious citation, all of the alleged violations arose out of a fatal accident that occurred on August 5, 1975, on the flight deck of the aircraft carrier U.S.S. Eisenhower while the ship was under construction.   A whirler crane had been carrying a pipe and valve, weighing approximately 2,600 pounds, over the location where two employees were working.   When the connecting rope broke, the pipe and valve fell 40 feet onto the workers, killing one and injuring the other.

Judge Chodes found that Newport had failed to comply with section 1916.66(i) n1 by swinging loads over the heads of employees, section 1916.66(o) n2 by failing to provide advance warnings to employees of approaching loads, and section 1916.61(a) n3 by failing to properly inspect the rope from which the load was suspended prior to use.   Regarding the section 1916.66(o) citation, the judge found that although Newport's safety director had been informed of many prior [*3]   instances when the standard had been disregarded, he had failed to take corrective action.   Accordingly, the judge agreed with the Secretary of Labor's ("Secretary") allegation that the section 1916.66(o) violation should be characterized as "willful."

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n1 §   1916.66 Use of gear

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(i) Loads (tools, equipment or other materials) shall not be swung or suspended over the heads of employees.

n2 §   1916.66 Use of gear

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(o) Before loads or empty lifting gear are raised, lowered, or swung, clear and sufficient advance warning shall be given to employees in the vicinity of such operations.

n3 §   1916.61 Inspection

(a) All gear and equipment provided by the employer for rigging and materials handling shall be inspected each shift and, when necessary, at intervals during its use to ensure that it is safe.   Defective gear shall be removed and repaired or replaced before further use.

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The judge rejected Newport's argument that the citations were invalid because the Occupational Safety and Health Administration [*4]   ("OSHA") official who issued them, Norfolk District Supervisor Straw, lacked the authority to do so.   Judge Chodes further concluded, contrary to Newport's argument, that the citations alleging noncompliance with the section 1916 standards were not precluded by section 4(b)(1) of the Act, 29 U.S.C. §   653(b)(1). n4 The judge also denied two attempts by Newport to obtain discovery: a request for enforcement of a subpoena duces tecum intended, in Newport's words, "to permit Respondent the opportunity to show how erratically Complainant has enforced this (sic) vague standards," and a motion to compel the Secretary to answer certain interrogatories seeking information about the procedures the Secretary followed in promulgating the cited standards. n5

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n4 Section 4(b)(1) provides, in pertinent part: "Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health."

n5 Chairman Cleary granted Newport's petition for review, which takes exception to the judge's disposition of the merits of the citations alleging noncompliance with 29 C.F.R. § §   1916.61(a), 1916.66(i), and 1916.66(o), and with the judge's rulings on the issues concerning the validity of the citations, section 4(b)(1), and the discovery sought by Newport.   Former Commissioner Moran also directed review on whether the judge's conclusions of law are justified by the record.

Newport does not challenge the judge's disposition of the merits of the citation alleging that it failed to comply with the standard at §   1910.309(b).   Because Newport has not challenged the judge's resolution of the merits of that citation, and in the absence of a compelling public interest, we will not review that aspect of the judge's decision.   See Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976); Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976).

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Newport makes the same arguments on review as it made before the judge, and also maintains that the judge incorrectly resolved the conflicting evidentiary questions.   In an extensive, well-reasoned opinion, Judge Chodes analyzed and disposed of Newport's contentions.   In almost all respects the judge's decision was thorough and comprehensive, and no purpose would be served by our restating the findings, conclusions, and reasoning that he had already set forth.   Additionally, where the evidence was conflicting, the judge considered the entire record and gave specific reasons for making any credibility findings.   Newport's arguments do not persuade us to reject these findings and we accept the judge's resolution of the conflicting evidentiary questions.   See Heath & Stich, Inc., 80 OSAHRC    , 8 BNA OSHC 1640, 1980 CCH OSHD P24,580 (No. 14188, 1980), pet. for review filed, No. 80-1927 (5th Cir. Aug. 26, 1980).

Newport makes several arguments, however, that merit further discussion.   One such argument concerns the merits of the citations alleging noncompliance with sections 1916.66(i)   [*6]   and 1916.66(o).   The others involve Newport's motion to compel answers to interrogatories and its argument that the citations were invalidly issued.

II

Newport contends that it did not violate sections 1910.66(i) and 1910.66(o) because the load involved in the accident was not being "swung" over employees.   Newport asserts that the word "swung," as used in the standards, refers to a pendulating, oscillating, or swaying back-and-forth motion, rather than a controlled motion in one direction.   Newport points to various OSHA standards in which the words travel, carry, and move, n6 are used in referring to loads supported by a crane, and it contends that the Secretary used such words in contrast to the word "swing" where he intended to refer to motion in one direction.

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n6 Newport points to the following standards:

29 C.F.R. §   1910.180(h)(3)(v): No hoisting, lowering, swinging, or traveling shall be done while anyone is on the load or hook.

29 C.F.R. §   1910.180(h)(3)(vi): The operator should avoid carrying loads over people.

29 C.F.R. §   1916.66(c): Tag lines shall be provided on loads likely to swing or to need guidance.

29 C.F.R. §   1916.66(m): A section of hatch through which materials or equipment are being raised, lowered, moved, or otherwise shifted manually or by a crane, winch, hoist, or derrick, shall be completely opened. . . .

29 C.F.R. §   1916.66(p): At no time shall an employee be permitted to place himself in a hazardous position between a swinging load and a fixed object.

29 C.F.R. §   1918.73(f)(3): Loads in excess of the rated capacity shall not be lifted or carried by lift truck.

29 C.F.R. §   1918.73(h): No load on a fork lift truck or industrial crane truck shall be suspended or swung over any employee.

29 C.F.R. §   1919.73(b): Proof loads shall be swung as far as possible in both directions. . . .

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We conclude that the term "swing" includes a controlled motion in one direction based on the application of these standards to crane operations generally.   Cranes are not used to cause loads to swing back and forth, but to move loads from one location to another.   It is reasonable, therefore, to conclude that in using the word "swing," a controlled motion in one direction was meant to be included.   Moreover, the obvious purpose of these standards is to protect employees from overhead loads, and the hazard created by overhead loads exists regardless of whether the load is oscillating back and forth or is moving in one direction.   Indeed, because section 1910.66(i) prohibits loads from being "suspended" as well as "swung" over employees, the standards contemplate that an overhead hazard exists even if the load is not moving.

Nor does the fact that the Secretary's various crane standards use other words in referring to load movement by cranes persuade us that "swung" should have the meaning urged by Newport.   The standards cited by Newport do not reveal an intention to contrast "swing" with other words [*8]   implying movement in one direction, but merely indicate that the drafters of the standards used various words synonomously, including "swing," when referring to the movement of loads by cranes. For example, one of the standards cited by Newport, section 1919.73(b), speaks of loads being "swung . . . in both directions." If "swung" had the meaning urged by Newport, the words "in both directions" would be redundant.   It is also noteworthy that the one explicit definition of "swing" found in the Secretary's standards is contrary to Newport's position.   In section 1910.180(a)(40) the term "swing" is defined as "the rotation of the superstructure (of the crane) for movement of loads in a horizontal direction about the axis of rotation." In short, the plain meaning of the word, the context in which it is used, and the purpose of the standards contradict Newport's argument that a load moved by a crane in one direction is not being "swung."

III

The interrogatories sought by Newport concern the procedures the Secretary followed in promulgating the cited standards.   At the hearing, Newport's counsel explained that such information was relevant to whether the standards were validly promulgated.   [*9]   Counsel stated that, "some research has indicated . . . some substantial question as the validity of the standards under which they were promulgated and we would like at least to provide that opportunity to the Court a little more time to getting the background of it." (Tr. Vol. I, p. 18).   Judge Chodes denied the motion, ruling that the validity of the standards could not be challenged in this proceeding.   Thus, the judge implicitly found that the information sought by Newport was irrelevant.

On review, Newport contends that strict relevancy is not a ground for denying discovery, citing Rule 26 of the Federal Rules of Civil Procedure.   Newport asserts that, despite the Commission's asserted lack of jurisdiction to determine the validity of standards, it should be permitted to obtain the information it seeks because the proceedings before the Commission constitute its sole opportunity to make a record with respect to the issue.   The Secretary contends that the judge was correct in holding that the procedural validity of a standard cannot be challenged in an enforcement proceeding.

The Commission has held that it possesses the authority to determine whether standards are invalid [*10]   as a result of the Secretary's alleged failure to comply with the rulemaking procedures prescribed in the Act.     Accordingly, the discovery sought by Newport is not irrelevant for the reason given by the judge.   Nevertheless, we conclude that the judge's error was harmless.

In order to obtain discovery, the party seeking the discovery must demonstrate that the information sought is relevant to a material issue in the case.   Quality Stamping Products Co., 79 OSAHRC 28/F11, 7 BNA OSHC 1285, 1287, 1979 CCH OSHD P23,520 at 28,503 (No. 78-235, 1979).   It is not a ground for denial of discovery that the information sought would be inadmissible at the hearing if the information appears reasonably calculated to lead to the discovery of admissible evidence.   Id.; Fed. R. Civ. P. 26(b)(1).   Thus, as Newport points out, information not strictly relevant may nonetheless be discoverable if it appears reasonably calculated to lead to the discovery of relevant information.

Newport has failed, however, to demonstrate either that the information it seeks is relevant or that it would lead to the discovery of relevant [*11]   information. It asserts only that there may be some question regarding the validity of the standards, and it wishes to obtain discovery to pursue the matter further.   That is insufficient.   It is not clear in what way the information Newport seeks would be relevant or would lead to the discovery of relevant information, and Newport has offered no explanation of what it intends to prove. n7 Without such an explanation, Newport's request is too speculative to be granted. n8

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n7 In another case, Newport also sought to discover information it contended was relevant to the promulgation of certain standards.     In that case, Newport's theory was that certain "national consensus standards" that the Secretary had promulgated pursuant to §   6(a) of the Act, 29 U.S.C. §   655(a), were being invalidly applied to the shipbuilding industry because that industry had no input into the development of the standards.   The standards involved in that case had been developed by the American National Standards Institute ("ANSI") and the National Fire Protection Association ("NFPA").   The Commission concluded that Congress had intended to permit the Secretary to promulgate ANSI and NFPA standards as standards applicable to all employers, regardless of whether particular employers or their industry had participated in the development of the standards by ANSI and NFPA.   Accordingly, the Commission concluded that the discovery sought by Newport could not demonstrate the invalidity of the standards and was therefore irrelevant.

In this case, the other than serious citation alleges that Newport failed to comply with §   1910.309(b), which requires that certain electrical installations comply with the National Electrical Code, a standard developed by NFPA and ANSI.   Section 1910.309(b) was promulgated by the Secretary pursuant to the authority granted him by §   6(a) of the Act to promulgate national consensus standards without further rulemaking proceedings.   Thus, our reasoning in the related Newport News case would apply equally to §   1910.309(b), and there would appear to be no basis for arguing that the section was not promulgated pursuant to proper procedures.

Section 6(a) of the Act also authorizes the Secretary to promulgate established Federal standards as standards under the Act.   An "established Federal standard" is "any operative occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act." Section 3(10) of the Act, 29 U.S.C. §   652(10).   The standards in 29 C.F.R. Part 1916 were originally promulgated under the Longshoremen's and Harbor Worker's Compensation Act, 33 U.S.C. § §   901-950.   After the Occupational Safety and Health Act of 1970 became effective, they were adopted as OSHA standards pursuant to the authority granted the Secretary by §   6(a) to promulgate established Federal standards without further rulemaking proceedings.   29 C.F.R. §   1910.14.   Thus, it appears that the Secretary complied with the applicable rulemaking procedure in promulgating the Part 1916 standards under the Act, and that any further information about the procedures would be irrelevant.

Commissioner Barnako did not fully agree with his colleagues in the related Newport News case, slip opinion 11, n. 7.   Moreover, he would not conclude, without further inquiry, that the Secretary complied with the applicable rulemaking procedure in promulgating §   1910.309(b) and Part 1916.   If, for example, an OSHA standard were substantially altered from its source standard, Commissioner Barnako would conclude that the Secretary's promulgation pursuant to section 6(a) was improper.   See Deering Milliken, Inc., 78 OSAHRC 101/A2, 6 BNA OSHC 2143, 1978 CCH OSHD P23,191 (No. 12597, 1978), aff'd, No. 79-1212 (5th Cir. Nov. 19, 1980).   Nevertheless, because Newport's interrogatories are speculative and do not appear to be directed to any relevant information, Commissioner Barnako agrees with his colleagues that Newport's request should not be granted.

n8 We also reject Newport's argument that its motion to compel answers to interrogatories should be granted because the proceedings before the Commission present its only opportunity to make an evidentiary record on the issue of the validity of the cited standards.   It is true that there may be circumstances in which the Commission should permit a party the opportunity to develop and present evidence relevant to an issue that can only be decided by a court on appeal from the Commission's decision.   See Bethlehem Steel Corp., 607 F.2d 871, 876 (3d Cir. 1979). However, this does not relieve a party seeking discovery from showing that the information it seeks is relevant to a material issue in the case.   We decline to speculate on whether a court of appeals may consider the information Newport seeks to obtain to the relevant.

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IV

Newport objects to all of the citations on the basis that the OSHA official who issued them, Norfolk District Supervisor Straw, lacked the authority to do so.   In support of its position, Newport offered into evidence a document, dated October 29, 1973, issued by Ewing, OSHA's Area Director for Richmond, Virginia, authorizing Straw to issue citations during closing conferences in situations where Straw had personally participated in the inspection. This document was identified as Exhibit C-A.   The judge reserved ruling on its admissibility at the hearing.   In his decision, the judge rejected the exhibit.   He ruled that Exhibit C-A was irrelevant since it dealt only with citations issued at a closing conference, while the citations involved here had been issued under different circumstances. n9

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n9 At the same time, Judge Chodes excluded from evidence certain other documents which the Secretary had sought to introduce to rebut Exhibit C-A.

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Newport maintains that by reserving his ruling on the admissibility of Exhibit C-A at the trial and excluding it at a later time, the judge prevented Newport from fully developing the issue.   Newport argues that if the exhibit had been excluded at trial it would have presented additional evidence.   Therefore, Newport asks that the case be remanded so that it can have the opportunity to make a complete record on this issue.

We have recently held, in a case involving this same employer, that an employer may defend against a citation on the basis that the OSHA official who issued the citation lacked the authority to do so.     In that case the Commission set forth the showing that must be made in order to sustain this defense. n10 The company has not made that showing on the basis of the present record.   As the judge correctly observed, Exhibit C-A, by itself, does not demonstrate that Straw lacked the necessary authority to issue the instant citations.

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n10 The Commission held that the acts of a public officer will be held valid unless the employer shows that the official had not been delegated the necessary authority, that the official's appointment to his office was invalid or improper, and that the office he held was not a de jure office or the functions of the office do not include those performed by the officer.

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At the time of the hearing in this case, however, the Commission had not addressed this defense and accordingly had not delineated the elements of proof necessary to sustain the defense.   Under such circumstances, it is the Commission's general policy to afford a party the opportunity to present additional evidence to attempt to establish the defense.   Truland-Elliot, A Joint Venture, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976).   Therefore, we will grant Newport's request to reopen the record to present further evidence relevant to the defense that the citations were issued invalidly.

Accordingly, the case is remanded to Judge William E. Brennan n11 for further proceedings to determine whether the citations in this case were issued validly. After conducting such proceedings, the judge should enter an order disposing of all contested matters in a manner consistent with this decision.

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n11 Judge Chodes has retired.   As Judge Brennan will also be handling this issue in Docket No. 76-171, assignment of this case to him is appropriate.

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SO ORDERED.