OSHRC Docket No. 657

Occupational Safety and Health Review Commission

July 1, 1974


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners



  VAN NAMEE, COMMISSIONER: This matter is before the Commission on the order of former Commissioner Burch directing review of a decision made by Judge Ben D. Worcester.   Judge Worcester vacated Complainant's citation n1 charging a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") by failing to comply with the standard published at 29 C.F.R. 1926.500(d)(1). n2

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n1 Judge Worcester vacated the citation on his conclusion that the standards were not in effect as to Respondent in view of the provisions of Subpart X of 29 C.F.R. Part 1926.   Alternatively he found that Complainant had failed to prove a violation.   Since we affirm on a basis analgolous to his alternative disposition we do not reach the issue raised by Subpart X.   That issue is presently before us in Underhill Construction Corp.,

n2 The standard provides, in relevant part: (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing . . .


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We have reviewed the record, and we affirm the Judge's disposition for the reasons stated herein.

The relevant facts are as follow: Respondent was engaged in the installation of sheet metal duct work in a multi-story addition to Mt. Sinai Hospital in New York City.   Part of the installation work was performed in vertical shafts extending along the exterior walls and corners of the hospital.

On February 29, one of Respondent's employees fell   to his death from the 21st level of the building.   At the time he had been installing duct work in an exterior shaft located on the northeast corner of the building.   It is undisputed that the managing contractor had strung a 1/2 inch wire cable four feet above the floor around the perimeter of the 21st level.   In the northeast corner, the cable was strung between two "I" beams located on adjacent sides of the building, each approximately 9 1/2 feet from the corner. This method of stringing the cable left a triangular shaped area of the floor, the sides of which were unguarded but coterminous with the open shaft which surrounded the entire corner of the [*3]   building.

On March 1, Complainant's compliance officer conducted an investigation of the job site. Thereafter, on March 7, Complainant cited Respondent for failure to guard an open-sided floor on the northeast corner of the 21st level. n3

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n3 The complaint alleged March 1 as the date of the violation.   Prior to trial, the Complainant moved to amend its complaint to allege the date of the accident, February 29, as an additional violation.   Judge Worcester denied the Complainant's motion.   While we believe the Judge erred in denying the motion, since it was offered well in advance of trial and therefore would not have prejudiced Respondent, we believe that in view of our disposition of the case that it was a harmless error.

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The evidence establishes that a standard railing would not have offered protection to Respondent's employees working in the shaft because they were beyond the edge of the floor. That is, even had Respondent erected a standard railing, its employees would have had to go beyond the railing and into [*4]   the shaft to perform their work.   Moreover, from the exhibits or record it appears that a standard railing would have made it very difficult if not impossible for   employees to perform installation work from the triangular shaped floor area.

Finally, we note that this is not a case wherein protection against falls was lacking.   Respondent supplied safety belts and required its employees to wear and tie the belts off when performing their work. n4 In this regard we find it significant that Complainant had a compliance officer in the hospital addition for a period of 2 1/2 weeks prior to the incident which gave rise to the citation herein and that compliance officer did not recommend the issuance of a citation.   In his own words the use of safety belts "would have achieved protection" and he "would have accepted it." Under the circumstances Judge Worcester's disposition was proper.

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n4 Nicholas Maldarelli, Respondent's general foreman, testified without contradiction, that he inspects daily to make sure that the employees (among other things) are wearing their safety belts. Any employee found not to be wearing his belt is reported to the union steward, and the employee is "more or less terminated."


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Accordingly, the decision of the administrative law judge is affirmed to the extent it is consistent herewith, and it is so ORDERED.  



  CLEARY, COMMISSIONER, concurring: I concur with Commissioner Van Namee's disposition in this case.

I view his comments regarding the previous inspection and statements by a compliance officer as dicta, and I do not join therein.   The Secretary is not estopped by his findings in any previous inspections if he finds a violation upon subsequent inspection.

[The Judge's decision referred, to herein follow]

  WORCESTER, JUDGE, OSAHRC: This proceeding arises as the result of a notice of contest filed by the Respondent on March 16, 1972, under authority of the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) hereinafter called the "Act." The Universal Sheet Metal Corporation (hereinafter Respondent) during the months of January, February, and March 1972, was engaged in the performance of a subcontract calling for the installation of sheet metal duct work in a multi-story addition to Mt. Sinai   [*6]   Hospital in the City of New York, New York.   On March 7, 1972, the Respondent was cited as provided in Section 9(a) of the Act for violation of standards promulgated by the Secretary as authorized by Section 6(a) of the Act.   The citation charged the Respondent with failing to guard an open-sided floor on the 21st level of the project.   Respondent immediately thereafter, on March 10, 1972, filed a notice of contest disclaiming any responsibility for the alleged violation.   This was followed by the filing of the Secretary's complaint.   In paragraph V it was alleged that:

On March 1, 1972, the respondent corporation violated the standards at 29 C.F.R. 1518.500(d)(1) redesignated at 29 C.F.R. 1926.500(d)(1) promulgated pursuant to section 6 of the Act in that the respondent corporation failed to guard open-sided floors, platforms and runway with a standard railing and toeboards or cover where required by the aforesaid regulations at the location referred to in paragraph III.

In its answer filed April 20, 1972, the Respondent denied jurisdiction of this Commission.   This objection was repeated at the time of argument on the Secretary's motion to amend the complaint on June 20, 1972.   [*7]   In its opening statement at the trial on the merits on September 8, 1972, the Respondent again raised this issue and noted participation was under a   continuing objection to the Commission's jurisdiction of the subject matter.

The Respondent has asserted that the Safety and Health Regulations for Construction (36 Fed. Reg. 7340, April 17, 1971) designated as Part 1518 and promulgated under authority of the Construction Safety Act (40 U.S.C. 327) limited the applicability of such regulations by the following provision:

The rules are applied only to new construction contracts which are advertised on or after the seventh day following publication of this document in the Federal Register. In the case of negotiated construction contracts, the rules shall be effective as to new contracts of this nature for which negotiations are commenced on or after ten days following publication of this document in the Federal Register.

The Respondent placed the jurisdiction of the subject matter in issue both by pleading and oral argument prior to the hearing.   The burden is upon the Secretary to come forward with proof of jurisdiction whether the Respondent questions it or not.    [*8]   For that reason, it is unnecessary to consider the document attached to the Respondent's brief purporting to be a copy of the subject contract.   Pleading lack of jurisdiction of the subject matter does not shift the burden of proof to the Respondent.   Even when not raised by the pleadings or argument, the burden of proof of jurisdiction is upon party bringing the action.   5 U.S.C. 556(d); Rule 73, Rules of Procedure, OSHRC.

Subject matter jurisdiction is so crucial that any party can suggest while a case pends that the court does not have jurisdiction of it.   The court sua sponte may raise the question of lack of jurisdiction of the subject matter even after the case has been litigated on its merits.   Indianapolis v. Chase National Bank, 62 S. Ct. 15 (1941).

  Even if the issue had not been raised by the Respondent a court is bound to take notice of the limits of its authority, Weinstein v. Black Diamond, 40 F. 2nd 590, cert. denied, 283 U.S. 837. If a court finds at any stage of the proceedings that it is without jurisdiction, it is its duty to take proper notice of the defect by staying the proceeding, dismissing or other appropriate action.   County of   [*9]     Dallas ex rel.   Simond David v. Cullen, 17 F. Supp. 777, Aff'd. 89 F. 2nd 731 and 735; R.F.C. v. Riverview State Bank, 217 F. 2nd 455 (10th Cir. 1955). Jurisdiction may not be conferred by inaction of the parties.   McNutt v. GMAC, 56 S. Ct. 780.

Counsel for the Respondent questioned the issue of the Secretary's jurisdiction of the subject matter before any evidence was received.   It was stated that the regulations under which this proceeding was initiated were first promulgated in connection with the Construction Safety Act, 40 U.S.C. 327; that those regulations were made applicable only to new construction contracts which were advertised on or after the seventh day following publication in the Federal Register; that they became effective on April 24, 1971, and that the contract in issue had already been advertised, let and the project started prior to that date.   The Respondent asserts that it was clearly exempt from the enforcement provisions of the Act under this regulation and that, therefore, there was no jurisdiction of the subject matter in this Commission.

The Secretary, nevertheless, failed then and has failed since the conclusion of the hearing,   [*10]   although being given an opportunity to do so by appropriate order by the Judge, to submit any proof that the subject contract was executed on or after April 24, 1971.   Instead, the Secretary has chosen to argue, as a matter of law, that the exculpatory language, which   clearly excludes certain pre-negotiated and bid contracts from the enforcement provisions of the Act, has been repealed by implication.


The Respondent in its brief after trial after noting that the burden of establishing the applicability of the regulations to this construction project rests on the Secretary; conceded that even though the Occupational Safety and Health Standards, National Consensus Standards and Established Federal Standards, designated as Part 1910, were published on May 29, 1971, and became effective on August 27, 1971; no provision thereof operated to impose the construction standards on jobs previously exempt from such coverage.   The Respondent claims that 29 CFR 1910.12(a) pertaining to the adoption and extension of established safety and health standards limited its applicability to those employers who were affected as of April 28, 1971, and that it was not the intention of the Secretary [*11]   in the promulgation of the standards to cover construction projects previously exempt.

In response thereto the Secretary argues that those provisions in the preamble to Part 1518 which limited their application to new construction contracts advertised on or after the seventh day of filing for publication in the Federal Register, pertained only to new construction contracts governed by Reorganization Plan Number 14 of 1950.   The Secretary claims that subparagraph (a) of Section 1910.12, as amended, shows that only those sections of Part 1518 which were directly related to safety, (Subpart C through V) were adopted.   The Secretary asserts that the preamble to Part 1518 was intended to affect only Subparts A and B, which relate to   definitions and procedures, and that since they were not mentioned later, the effective dates in the preamble to Part 1518 are no longer effective.

The argument of the Secretary is contrary to sound principles of statutory construction and must be rejected.   The promulgation of regulations pursuant to authority vested in an agency by the Congress is the exercise of a legislative function.   Regulations accordingly must be construed in the same [*12]   manner as statutes.   In the construction of statutes, where express terms of repeal are not used, there is a presumption against any intention to repeal an earlier statute or any of its provisions.   United States v. Kushner, 135 F. 2nd 668 (2nd Cir. 1943), cert. den., Kushner v. United States, 63 S. Ct. 1449. The only way in which a statute may repeal an earlier one by implication is where the later legislative or regulatory Act is repugnant to or in conflict with the former Act. Posadas v. National City Bank, 56 S. Ct. 349.

A common rule of statutory interpretation which is so well known that it hardly needs repetition is the rule that a statute clear and ambiguous on its face need not and cannot be interpreted by a court.   Caminetti v. United States, 37 S. Ct. 192 (cir. 1916).   This same rule applies to the interpretation of regulations and standards.

There are three general terms commonly used to identify particular methods utilized by the enacting authority to specify the limits of applicability of a statute.   They are: exceptions, savings clauses and provisos. An exception is a statement expressing an intention to restrict the enacting clause [*13]   to a particular case.   A savings clause preserves certain rights from destruction, remedies or privileges which would otherwise be destroyed by the general enactment.   A proviso removes special cases from the general   enactment.   The provision in the preamble to Part 1518 cited by the Respondent is a proviso. A proviso should be interpreted consistently with the legislative intent.   McDonald v. United States, 49 S. Ct. 218 (1929). Where the proviso itself must be considered in an attempt to determine the intent of the enacting body it should be strictly construed.   United States v. Maryland Casualty Company, 49 F. 2nd 586, cert. denied, 52 S. Ct. 24 (1934).

Applying this rule to the case at bar it is clear that it was the intention of the Secretary that these standards were to be applied only to new construction contracts which were advertised on or after the seventh day following publication of Part 1518 in the Federal Register. This is revealed by the last sentence of the preamble where it is stated:

The time lag in the procurement process, together with the time period specified, are considered sufficient to afford affected persons reasonable time [*14]   to take such action as may be necessary to comply with the rules.

It is obvious that the Secretary was not unmindful of the fact that when the standards and the Act became effective in April 1971 there would be certain employers in the construction industry who had no way of knowing when they bid on a project that they would be required to bear the expense of furnishing protection in compliance with safety rules which did not exist at the time the bid was made.   It would be a patent violation of the rights of the Respondent if it were charged with a violation of a standard or standards which did not exist when the Respondent agreed, for a consideration, to perform the construction work on the Mt. Sinai project, just because the work was still in progress after April 1971.

On December 16, 1972, the Secretary published   revised regulations for construction, 37 Fed. Reg. 27503. The preamble contained the following statement of purpose:

This revision includes amendments published in the Federal Register and in effect as of November 23, 1972.   The purpose of the revision is (1) to publish fully in one place the present occupational safety and health standards contained [*15]   therein in order to reflect many changes made during the current year and thereby to improve their usefulness and facilitate their enforcement; (2) to correct a number of typographical and clerical errors in the text of the standards; and (3) to publish indexes with the standards, which are intended to permit quicker access to pertinent standards.

This purpose clause and the preliminary declaration of purpose in the preamble to the April 17, 1971, publication of Part 1518, are clear and unambiguous.   Neither expressly nor by implication did the Secretary ever express an intention to revoke his previous exclusion of coverage of construction jobs bid or negotiated before April 28, 1971.   The reason for excluding previously executed contracts then and now is the same.   It was: "To afford affected persons reasonable time to take such action as may be necessary to comply with the Rules." 36 Fed. Reg. 7340 (April 17, 1971).

The latest revision published on December 16, 1972, listed by name the various acts of Congress which are subject to the standards promulgated under Section 107 of the Contract Work and Hours Safety Act.   Not by the most broad stretch of the imagination could this   [*16]   revision be construed so as to repeal a specific exclusion published in April 1971.   The revised standards have an inclusive purpose rather than an exclusive purpose and that was to make it clear that none of the employers who may have bid on contracts under various Section 107 statutory provisions were excused from compliance with the Act.


This Commission lacks jurisdiction of the subject matter in the instant case.   For that reason the Judge does not reach the general issue arising under the allegations in the complaint.   It should be noted, however, that the Secretary has failed to sustain the burden of proof of any violation.

The charges against the Respondent came about as the result of the death of one of its employees at the job site on February 29, 1972.   The next day, March 1, 1972, the Secretary dispatched a Compliance Officer to make an investigation.   Pursuant to his recommendation a citation of the Respondent for failure to provide protection around the perimeter of the open floors of the building, where the walls had not yet been erected subjecting workers inside the building to the hazard of falling to the ground, was issued.   The evidence received at [*17]   the hearing showed that the duct work being installed by the Respondent was in an exterior shaft so that a top rail, mid rail, and toe board would have provided no protection whatsoever for the Respondent's employees.   Another Compliance Officer called as a witness for the Respondent said that a cable, lanyard and safety belt were the necessary protective equipment for such work.   He had observed this particular function during a 2-1/2 week period while inspecting this job site in January and February 1972 and had not recommended that a citation be issued to the Respondent.

There was no evidence showing that the death of the Respondent's employee was due in any way to a violation of the standards.   The cause of death is unknown.   According to the Respondent's general foreman, he went to the 14th floor on the date in question after being told that one of the employees had   fallen.   When he arrived there he saw the body of an employee who, earlier that day, had been sent to work on the 21st floor. No witness to the events immediately preceding the sudden and unexplained fall, if there was a fall, was produced although there apparently was another employee with the deceased [*18]   at the time his body traversed the distance perpendicularly from the 21st to the 14th floor. He could have died from natural causes such as a heart attack or other sudden illness.   No documentary or other proof showing the cause of death was presented.   The only clue as to what happened is a Workmen's Compensation Board statement indicating that while working on a vertical riser duct in the shaft, the employee slipped and fell and was fatally injured.   According to this document James A. Avent, was an eye witness to the fall and Doctor Gridlinger, examined the body after the fall.   Neither was present to testify.


Upon consideration of the record as a whole it is hereby found and determined that the Occupational Safety and Health Commission does not have jurisdiction of the subject matter herein and that the citation and proposed penalty should be and hereby are, vacated. This proceeding is dismissed.