LUHR BROTHERS, INCORPORATED

OSHRC Docket No. 16056

Occupational Safety and Health Review Commission

October 13, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Lawrence P. Kaplan, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

This case is before the Commission by my order under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"], granting complainant's petition to review Judge. Alan M. Wienman's decision that granted respondent's motion to dismiss. n1 The Judge concluded that the cited working conditions were exempt from the coverage of the Act since the Army Corps of Engineers' safety requirements dealing with noise control preempted OSHA's standards under section 4(b)(1) of the Act. n2 We reverse the Judge's decision, and remand for proceedings consistent with this decision.

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n1 Former Commissioner Moran directed the case for review "for error" without specifying any particular issues.

n2 Section 4(b)(1) reads as follows:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

[*2]

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Respondent Luhr Bros., Inc., an earthmoving and excavation company, was a construction subcontractor on a Corp of Engineers flood control project at the Clarence Cannon Reservoir in Ralls County, Missouri. Following an OSHA inspection respondent was charged with violations of the standards published at 29 CFR 1926.52(b), 1926.52(d)(1), and 1926.500(d)(1). n3 Respondent timely contested the 1926.52(b) and 1926.52((d)(1) items. It did not contest the 1926.500(d)(1) violation.

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n3 1926.52 Occupational noise exposure.

* * *

(b) When employees are subjected to sound levels exceeding those listed in Table D-2 of this section, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of the table, personal protective equipment as required in Subpart E, shall be provided and used to reduce sound levels within the levels of the table.

* * *

(d)(1) In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered.

Table D-2 - Permissible Noise

Exposures

Sound level

dBA slow

Duration per day, hours:

response

8

 90

6

 92

4

 95

3

 97

2

100

1 1/2

102

1

105

1/2

110

1/4 or less

115

1926.500 Guardarils, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

[*3]

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Prior to the hearing scheduled in this matter, Judge Wienman granted respondent's motion to dismiss. Judge Wienman's action is grounded upon his conclusion that "10 U.S.C. 3012(d) authorizes the Secretary of the Army to prescribe and/or enforce occupational safety and health regulations." n4

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n4 10 U.S.C. 3012 provides:

(d) The Secretary or, as he may prescribe, the Under Secretary or an Assistant Secretary shall supervise all matters relating to --

(1) the procurement activities of the Department of the Army; and

(2) planning for the mobilization of materials and industrial organizations essential to the wartime needs of the Army.

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Complainant argues before us that the Judge erred in applying section 4(b)(1). Complainant contends that Gearhart-Owen Industries, Inc., 2 BNA OSHC 1568, 1974-75 CCH OSHD para. 19,329 (No. 4263, 1975) is controlling and that the only issue before the Commission is whether the purpose of the legislation [*4] authorizing the assertedly preempting regulation is to affect employee occupational safety and health. If its purpose is not to affect employee health and safety it does not preempt the Act. Complainant notes that the pertinent Armed Services Procurement Regulation [ASPR] in this case is 32 CFR 7.602-42(a) requiring Department of Defense contractors to comply and to insure subcontractor compliance with the occupational safety and health requirements of the Corps of Engineers' safety manual. n5

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n5 The section of the manual dealing with noise control reads as follows:

NOISE CONTROL

32.A. GENERAL

32.A.01. Harmful sound pressure levels in working areas shall be eliminated or minimized by planning and design. Control considerations shall include substitution of less noisy source, isolation, enclosure, baffling, muffling, resilient mounting, sound absorption, or such other measures as appropriate.

32.A.02. When the sound pressure level in a working area exceeds 85 decibels overall, personal ear protective devices shall be required.

32.A.03. When the sound pressure level in a working area exceeds 120 decibels, personal ear protection equivalent to the combination of ear plugs and ear muffs shall be required.

32.A.04. Sound pressure level measurements shall be made by qualified personnel.

[*5]

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Complainant argues that the statutory sections providing authority for the regulation are 5 U.S.C. 301, authorizing the head of an executive department to prescribe regulations for his department and the conduct of its employees, 10 U.S.C. 2202, authorizing the procurement of supplies, and 10 U.S.C. 2301-2314, governing procurement of property other than land. Complainant argues that the regulations were not issued pursuant to 10 U.S.C. 3012(d) as the Judge concluded. n6 Complainant contends that the purpose of the Armed Services Procurement Regulations is to achieve the efficient, economical, and practical operation of an integrated supply system by establishing uniform policies and procedures relating to the procurement of supplies and services. He relies upon 32 CFR 1-101 and 10 U.S.C. 2202. n7

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n6 Complainant argues alternatively that if the Judge were correct in finding authority for ASPR in 10 U.S.C. 3012, the Gearhart-Owen analysis would also apply because the purpose of 10 U.S.C. 3012 is not to regulate occupational safety and health.

n7 Section 1-101 reads as follows:

32 CFR 1-101 Purpose of Regulation.

This Regulation, issued by the Assistant Secretary of Defense (Installations and Logistics) by direction of the Secretary of Defense and in coordination with the Secretaries of the Army, Navy, and Air Force and the Director of the Defense Supply Agency, establishes for the Department of Defense, uniform policies and procedures relating to the procurement of supplies and services under the authority of Chapter 137, Title 10 of the United States Code, or under other statutory authority.

Section 2202 of Title 10, U.S. Code reads as follows:

2202. Obligation of funds: limitation

Nothwithstanding any other provision of law, an officer or agency of the Department of Defense may obligate funds for procuring, producing, warehousing, or distributing supplies, or for related functions of supply management, only under regulations prescribed by the Secretary of Defense. The purpose of this section is to achieve the efficient, economical, and practical operation of an integrated supply system to meet the needs of the military departments without duplicate or overlapping operations or functions.

[*6]

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Complainant also pursues his argument that Gearhart-Owen draws support from sections 16 and 4(b)(2) of the Act. n8 Complainant contends that these sections show a Congressional purpose to apply the Act to work performed under government construction contracts. Complainant argues that if the Act were not to apply to work performed under government contract, it would not have been necessary to include these two provisions of the Act, one dealing with duplication of regulations (Section 4(b)(2)) and one with exemptions to be granted by the Secretary to avoid impairment of the national defense (Section 16).

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n8 Section 16 reads as follows:

VARIANCES, TOLERANCES, AND EXEMPTIONS

SEC. 16. The Secretary, on the record, after notice and opportunity for a hearing may provide such reasonable limitations and may make such rules and regulations allowing reasonable variations, tolerances, and exemptions to and from any or all provisions of this Act as he may find necessary and proper to avoid serious impairment of the national defense. Such action shall not be in effect for more than six months without motification to affected employees and an opportunity being afforded for a hearing.

Section 4(b)(2) reads as follows:

SEC. 4(b)(2). The safety and health standards promulgated under the Act of June 30, 1936, commonly known as the Walsh-Healey Act (41 U.S.C. 35 et seq.), the Service Contract Act of 1965 (41 U.S.C. 351 et seq.), Public Law 91-54, Act of August 9, 1969 (40 U.S.C. 333), Public Law 85-742, Act of August 23, 1958 (33 U.S.C. 941), and the National Foundation on Arts and Humanities Act (20 U.S.C. 951 et seq.) are superseded on the effective date of corresponding standards, promulgated under this Act, which are determined by the Secretary to be more effective. Standards issued under the laws listed in this paragraph and in effect on or after the effective date of this Act shall be deemed to be occupational safety and health standards issued under this Act, as well as under such other Acts.

[*7]

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Complainant further argues that if the purpose of the statute authorizing the procurement regulations is to affect occupational safety and health and section 4(b)(1) applies to this situation, section 4(b)(1) does not exempt respondent because respondent is a subcontractor with no direct relationship to the Corps of Engineers. Complainant relies upon Texas Eastern Transmission Corp., 75 OSAHRC 88/09, 8 BNA OSHC 1601, 1975-76 CCH OSHD para. 20,092 (Nos. 4091 & 4078, 1975), wherein the Commission refused to apply section 4(b)(1) to an employer having only a contractual, not a regulatory obligation, to comply with the pipeline safety standards under the National Pipelines Safety Act.

Finally, complainant submits that, irrespective of its arguments presented above, the Judge erred in vacating the nonserious violation of 29 CFR 1926.500(d)(1). Complainant notes that respondent did not contest this citation. He argues that, at the time of the Judge's order, the 500(d)(1) citation had become a final order by operation of law, and the Judge had no jurisdiction to vacate.

In its brief to the Commission, [*8] respondent notes that the Judge based his decision on 10 U.S.C. 3012(d)(1), and characterizes complainant's argument as questioning the Secretary of the Army's express right to regulate safety. Respondent points out that the Judge and the complainant do not note the significance of 33 U.S.C. 701(a) and 701(a)-1. Respondent relies heavily on this provision, noting that 701(a) "makes it very clear that destructive floods' constitute a menace to national welfare.'" Respondent argues that in addition to the procurement provision of 10 U.S.C. 3012, 701(a)-1 provides a "separate authority for the Corps of Engineers to supervise flood control projects." Respondent concludes that these provisions "give the Secretary of the Army the authority to make whatever decisions he felt appropriate to effectuate the needs of this country at war and under threat of imminent natural disaster."

Respondent also argues, without citing supporting authority, that section 4(b)(1) reflects "the intent of Congress not to place regulation of job safety and health conditions of all employees under OSHA and . . . to give primacy to existing laws and subordinate OSHA's coverane to those existing laws." [*9]

Finally, respondent contends Gearhart-Owen, supra is inapplicable to the instant case. It claims, "Citation of the Gearhart case is inappropriate in that in Gearhart the direct control granted under 33 U.S.C. 701(a)-1 was not present."

We are persuaded that Gearhart controls the instant case. Under Gearhart-Owen the Commission's test on the application of an exemption under 4(b)(1) is whether the purpose of the statutory authority exercised by a Federal agency is regulating occupational safety and health. The test is essentially a restatement of that described in Fineberg Packing Co., 74 OSAHRC 14/E12, 1 BNA OSHC 1598, 1973-74 CCH OSHD para. 17,518 (No. 61, 1974).

In Gearhart-Owen, respondent had claimed exemption from the Act because it manufactured and supplied grenades under contract with the Department of Defense, and therefore, was subject to ASPR 32 CFR 7.104-79(a), requiring the insertion of a clause mandating compliance with the "DOD Contractor's, Safety Manual for Ammunition, Explosives and Related Dangerous Material" into its contract. We noted that the statutory authority for 32 CFR 7.104-79(a), and hence for the Safety Manual, [*10] was found in 5 U.S.C. 301, giving the heads of Executive Departments the authority to prescribe regulations for their departments and the conduct of their employees, and 10 U.S.C. 2202 authorizing the obligation of funds for procuring supplies. Any job safety or health protection for contractor's employees would seem to be incidental and dependent upon its consonance with efficient procurement.

In the instant case, respondent is a defense subcontractor supplying construction services. Respondent claims exemption from the Act on the basis of a clause in its subcontract with its general contractor that requires it to comply with the Corps of Engineers' "General Safety Requirements", a manual similar to the "DOD Contractors' Safety Manual for Ammunition, Explosives, and Related Material." The clause was incorporated into the contract pursuant to 32 CFR 7.602-42(a), which is similar to 32 CFR 7.104-79(a) in that both require contractors to comply, and insure subcontractor compliance with DOD safety manuals.

The general regulatory purpose of all ASPR provisions is described in 32 CFR 1-101 which reads in pertinent part as follows:

This Regulation . . . establishes for the [*11] Department of Defense, uniform policies and procedures relating to the procurement of supplies and services under the authority of Chapter 137, Title 10 of the United States Code, or under other statutory authority.

Thus the regulatory purpose is to standardize procurement procedures under Chapter 137, Title 10, U.S. Code and other unspecified authority.

Chapter 137, entitled "Procurement Generally", covers topics such as advertisement for bids, kinds of contracts, and delegation of procurement functions. Its purpose is obviously to standardize and to make efficient Defense procurement procedures. Any benefits of job safety and health are at best incidental. Other Defense procurement authority has the same purpose. See Paul v. United States, 371 U.S. 504 (1963).

In his decision Judge Wienman relied principally upon 10 U.S.C. 3012(d)(1) as the source of the ACOE's authority to require compliance with their safety requirements. Section 3012(d) defines or describes the powers and duties of the Secretary of the Army. Subsection (d)(1) of the section concerns the Secretary's supervisory power over the Army's procurement activities. Its purpose is not to provide job [*12] safety or health, except perhaps as it may be incidental to efficient procurement.

We turn now to respondent's contention that authority exercised by the Corps of Engineers under 33 U.S.C. 701(a) requires an exemption under 4(b)(1) of the Act. Respondent does not make clear the asserted connection between the subcontract clause upon which it relies and 701(a). However, assuming for the sake of argument that there is a nexus of some kind, it is clear from the foregoing analysis that an exemption is not automatically triggered by some legislative authority empowering the regulations requiring compliance with safety rules as an incident to a different predominant objective.

The purpose of 701(a) is to protect people and property endangered by floods. Employees may be protected as individual members of a class composed of the general public. However, the legislation does not address the protection of contractor employees who are actually engaged in the conduct of flood control rather than sharing its benefits.

We note parenthetically that DOD Instruction #1000.18 issued on June 29, 1976, establishes a policy concerning OSHA inspections at Defense contractor worksites. It [*13] observes that OSHA standards generally apply to DOD contractors and subcontractors. Part IV of the Instruction states,

DOD contractors n8 operating from DOD or privately owned facilities, located on or off DOD installations, are "employers" as defined in Public Law 91-596 . . . and are subject to enforcement authority by Federal and State safety and health officials . . . .

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n8 In Enclosure One, I, of the Instruction, a DOD contractor is defined as "A non-Federal employer engaged in performance of a DOD contract, whether as prime contractor or subcontractor." [Emphasis added.]

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For the above reasons, Judge Wienman's order vacating the 1926.52(b) and 1926.52(d)(1) citations is reversed. The case as to those two citations is remanded for proceedings consistent with this decision. In addition, we find that the 1926.500(d)(1) citation has become a final order of the Commission because respondent had not contested it. Accordingly, the Judge's vacation of that citation is reversed.

IT IS SO ORDERED.