1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.


NORANDA ALUMINUM, INC.


GENERAL MOTORS CORP., GM ASSEMBLY DIV.


ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.


CLEMENT FOOD COMPANY


MILLCON CORPORATION


FWA DRILLING COMPANY, INC.


CCI, INC.


GENERAL ELECTRIC COMPANY


CONSOLIDATED ALUMINUM CORPORATION


THE BRONZE CRAFT CORPORATION


CARGILL, INC.


CHAPMAN CONSTRUCTION CO., INC.


GALLO MECHANICAL CONTRACTORS, INC.


SPECIAL METALS CORPORATION


WILLAMETTE IRON AND STEEL COMPANY


NASHUA CORPORATION


WESTINGHOUSE ELECTRIC CORPORATION


RESEARCH-COTTRELL, INC.


ROCKWELL INTERNATIONAL CORPORATION


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


BUNKOFF CONSTRUCTION CO., INC.


GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION


HARRIS BROTHERS ROOFING CO.


GENERAL DIVERS COMPANY


ORMET CORPORATION


R. ZOPPO CO., INC.


COEUR D'ALENE TRIBAL FARM


L. A. DREYFUS COMPANY


CMH COMPANY, INC.


BENTON FOUNDRY, INC.


MICHAEL CONSTRUCTION CO., INC.


WHIRLPOOL CORPORATION


BROWN & ROOT, POWER PLANT DIVISION


MARION POWER SHOVEL CO., INC.


ERSKINE-FRASER CO.


MORRISON-KNUDSEN AND ASSOCIATES


THE BOAM COMPANY


DIC-UNDERHILL, a Joint Venture


C. R. BURNETT AND SONS, INC.; HARLLEE FARMS


STRIPE-A-ZONE, INC.


FORTE BROTHERS, INC.


RAYBESTOS FRICTION MATERIALS COMPANY


TEXLAND DRILLING CORPORATION


THE ANACONDA COMPANY, WIRE AND CABLE DIVISION


SAM HALL & SONS, INC.


VAMPCO METAL PRODUCTS, INC.


LEONE INDUSTRIES, INC.


ASARCO, INC.


DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY


PLUM CREEK LUMBER COMPANY


PLUM CREEK LUMBER COMPANY


STEARNS-ROGER, INC.


FERRO CORPORATION, (ELECTRO DIVISION)


AMERICAN PACKAGE COMPANY, INC.


BROWN & ROOT, INC., POWER PLANT DIVISION


FLEETWOOD HOMES OF TEXAS, INC.


DONALD HARRIS, INC.


A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.


ELECTRICAL CONSTRUCTORS OF AMERICA, INC.


DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)


ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY


NAVAJO FOREST PRODUCTS INDUSTRIES


METROPAK CONTAINERS CORPORATION


AUSTIN BUILDING COMPANY


BABCOCK AND WILCOX COMPANY


DARRAGH COMPANY

OSHRC Docket Nos. 77-2555; 77-3074; 77-3075

Occupational Safety and Health Review Commission

September 25, 1980

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

James M. McHaney, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John S. Patton is before the Commission pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision, Judge Patton found that Respondent, Darragh Company ("Darragh"), had violated the Act when its employees climbed ladders that failed to conform with certain standards found in 29 C.F.R. Part 1910, Subpart D. The ladders were located on farms to which Darragh employees delivered grain. The case presents the question of whether Darragh's activities are "agricultural operations" within the meaning of 29 C.F.R. 1928.21(b) and therefore exempt from complying with the cited standards. n1 If the cited Part 1910 standards are found to apply to Darragh's operations, we must further determine whether Darragh should be held in violation of the Act despite the fact that the substandard ladders at issue are located on the property of farmers who are specifically [*2] exempted from the provisions of the Act. n2

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n1 Section 1928.21(b) provides, in pertinent part: ". . . the standards contained in subparts B through T and subpart Z of Part 1910 of this title do not apply to agricultural operations."

n2 The Department of Labor and Health, Education and Welfare Appropriation Acts, 1977, 1978, and 1979, provide an exemption for small farmers, as follows:

. . . Provide further, that none of the funds appropriated under this paragraph [for Occupational Safety and Health Administration, Salaries and Expenses] shall be obligated or expended to prescribe, issue, administer, or enforce any standard, rule, regulation, or order under the Occupational Safety and Health Act of 1970 which is applicable to any person who is engaged in a farming operation and employs 10 or fewer employees.

P.L. No. 94-439 [H.R. 14232]; See also P.L. 94-480 and OSHA Instruction CPL 2.33 (April 6, 1979).

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I

The relevant facts are not in dispute. Darragh is an integrator of poultry products involved in all [*3] aspects of the raising, feeding and selling of chickens as well as the selling of eggs. To promote efficiency in its business, Darragh contracts with individual farmers to care for and feed Darragh's chickens. Under the terms of the contract, the farmer is paid a certain amount for each egg produced. The farmer provides chicken houses, feed bins, and other essential equipment and promises to care for the bins in accordance with sound poultry practices. Darragh at all times retains title over the chickens. It supplies the farmer with feed and expert advice when needed. To provide the farmer with feed, employees of Darragh drive trucks to the individual farms and unload feed into the farmers' feed bins. During each of these deliveries, the drivers must climb sixteen-to-eighteen-foot ladders attached to the sides of the feed bins.

On or about June 14, 1977, a compliance officer of the Occupational Safety and Health Administration ("OSHA") inspected three farms under contract with Darragh. The inspections revealed that the ladders on the feed bins at each of the three farms failed to comply with OSHA standards. The Secretary cited Darragh for the condition of the ladders at [*4] the three farms. n3

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n3 Specifically, Darragh was cited for violating the provisions of 29 C.F.R. 1910.27(b)(1)(ii), 1910.27(b)(1)(iii), 1910.27(c)(4), and 1910.27(f).

The provisions of 29 C.F.R. 1910.27(b)(1)(ii) state that the distance between rungs, cleats, and steps shall not exceed 12 inches and shall be uniform throughout the length of the ladder.

29 C.F.R. 1910.27(b)(1)(iii) requires that the minimum clear length of rungs or cleats be 16 inches.

The provisions of 29 C.F.R. 1910.27(c)(4) state that the distance from the centerline of the grab to the nearest permanent object in back of the ladder shall be not less than 4 inches.

29 C.F.R. 1910.27(f) requires that all ladders be maintained in a safe condition.

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Darragh contested the citations and argued before Judge Patton that it did not own, operate or control the ladders and so could not be held responsible for their condition merely because their employees use the ladders. Also, Darragh emphasized that the individual farmers are exempt from the [*5] provisions of the Act under a specific exemption for small farmers. n4 Therefore, Darragh contended that an order requiring that equipment on an exempt farm conform with OSHA regulations would serve to circumvent the congressional intent behind the small farmer exemption.

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n4 See note 2 supra. The National Broiler Council submitted an amicus curiae brief to the administrative law judge. On review, the National Broiler Council was joined by the Arkansas Poultry Federation, the National Turkey Federation, and the Southwestern Poultry and Egg Association in an amici curiae brief. These briefs essentially mirrored the arguments put forth by Darragh, but emphasized the purported adverse effect on the poultry industry that would result from a decision which held Darragh responsible for conditions on the individual farms.

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The Secretary of Labor ("the Secretary") argued before the judge that control of the hazard is irrelevant. In the Secretary's view, employee exposure, not control, is the legal touchstone for [*6] determining a violation under the Act. In this case, the condition of the ladders violated OSHA standards, and Darragh's employees were continually exposed to these hazardous conditions. Therefore, the Secretary maintained that Darragh must be held responsible for the violations.

The Secretary also argued that the small farmer exemption of Public Law 94-439 is irrelevant. The employees of Darragh, not the farmers, were exposed to the hazardous conditions. Darragh was clearly not covered by the small farmer exemption and was properly cited for exposing its own employees to the hazardous conditions.

Judge Patton found that Darragh had violated the Act and upheld the citations. He ordered Darragh to request that the farmers erect safe ladders or, alternatively, allow Darragh to come on to the farmers' land and erect safe ladders. In addition, the Judge ordered that all future contracts between Darragh and the three individual farmers provide that one of the two parties maintain the ladders at issue according to OSHA standards.

In his decision, Judge Patton analogized the situation in this case to the multi-employer construction site cases. Those cases have held that at multi-employer [*7] construction sites an employer must make reasonable efforts to detect hazardous conditions in areas and under circumstances outside its control but to which its employees might be exposed. When an employer finds such conditions, the employer should "exert reasonable efforts to have them abated or take such other steps as the circumstances may dictate to protect its employees." n5

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n5 Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1189, 1975-76 CCH OSHD P20,691 at 24,791 (No. 12775, 1975).

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In this case, Judge Patton concluded that violations of the Act had been committed because Darragh's employees had been exposed continually to dangerous conditions and Darragh had done nothing to abate the conditions or have the conditions abated. To the argument that the decision would force farmers who were specifically exempt from the Act to make conditions on their farms conform with OSHA regulations, Judge Patton answered that it was Darragh's employees, not the farmers, who were exposed to the risks [*8] and must be protected.

The question of a possible "agricultural operations" exemption under the regulation at 29 C.F.R. 1928.21(b) was not argued before the administrative law judge. In addition to granting Darragh's petition for review, which took exception to the judge's rationale, Commissioner Barnako asked the parties to brief the "agricultural operations" question. n6

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n6 Commissioner Barnako's Direction for Review states:

Respondent and Complainant agree that the growers owning, controlling, and maintaining the workplaces, in which the violations occurred are exempt from compliance with the requirements of the cited standards and Respondent contends that because of this, Respondent, a "local integrator" of the growers, is not responsible for the violations. The parties' attention is directed to 29 C.F.R. 1928.21(b) which exempts "agricultural operations" from the requirements of the cited standards.

(a) Does this standard support the agreement of the parties that the growers are exempt from complying with the cited standards?

(b) If so, do the activities in which Respondent was engaged and which led to the issuance of the citations under contest herein also constitute "agricultural operations" within the meaning of 29 C.F.R. 1928.21(b) and therefore are those activities exempt from the cited standards?

Commission Rule of Procedure 92(d), 44 Fed. Reg. 70106, 70111 (1979) (to be codified in 29 C.F.R. 2200.92(d)), formerly designated Rule 91a(d) and codified in 29 C.F.R. 2200.91a(d), limits the Commission's power to review, "except in extraordinary circumstances," to the issues raised by the parties in the proceedings below. We conclude that the proper disposition of this case and its possible broad effects on the poultry industry requires the Commission to address the agricultural operations exemption issue even though that issue was not raised before the judge.

[*9]

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II

On review, Darragh argues that the exemption for agricultural operations in section 1928.21(b) should be read broadly. It emphasizes that the exemption is not for agricultural equipment, employers, or employees, but rather for agricultural operations, a broad term which Darragh asserts encompasses almost any activity on a farm. Darragh further contends that the feed bins are an integral part of the farmers' agricultural operations since the farmer could not care for his hens without feed storage facilities. The delivery of feed is also an integral part of Darragh's agricultural operations because, according to Darragh, it could not maintain its hens and sell their eggs without feed deliveries.

The Secretary encourages the Commission to interpret the exemption narrowly. Essentially, the Secretary argues that the actions performed by the employees, driving a truck and delivering grain, are not primarily agricultural. Given the fact that tasks performed by the employees were not primarily agricultural and the clear intent of the Act to cover the maximum number of workers, the Secretary maintains [*10] that the agricultural exemption should not apply in this case.

We conclude that the "agricultural operations" exemption provided in section 1928.21(b) applies to the circumstances of this case. Because we vacate the citations on this basis, we do not address the effect of the "small farmer" exemption found in Public Law 94-439.

In Chapman & Stephens Co., 77 OSAHRC 77/A2, 5 BNA OSHC 1395, 1977-78 CCH OSHD P21,802 (No. 13535, 1977) ("Chapman"), an employee of a citrus grower was electrocuted when a steel irrigation pipe came in contact with an electric power line. Among the questions facing the Commission in that case was whether the general industry standard for personal protective equipment at 29 C.F.R. 1910.132(a) or the corresponding construction standard at 29 C.F.R. 1926.28(a) applied to the citrus grower. In Chapman, the Commission determined that section 1910.132(a) did not apply since the employer was a citrus grower and therefore was engaged in "agricultural operations" within the meaning of the exemption. The remaining question in Chapman was, then, whether the construction standard nevertheless applied on a theory that the work performed by the [*11] employees, removal of an irrigation pipe, was construction. The Commission responded in the negative, reasoning:

The removal of the [irrigation pipe] was necessary for the maintenance of Respondent's irrigation system. As such it was integrally related to Respondent's business of growing citrus fruits. Accordingly, the removal of the pipe constituted agricultural work not subject to the requirement of 1926.28(a), a construction standard. (Emphasis added.)

5 BNA OSHC at 1396-97, 1977-78 CCH OSHD at 26,239.

The Commission's disposition of the section 1926.28(a) allegation in Chapman did not rely on the agricultural operations exemption as that exemption applies only to certain standards in 29 C.F.R. Part 1910. Moreover, unlike this case, the exposed employees were the employees of the citrus grower and not an outside company. However, the Commission's reasoning that the work performed was not maintenance for construction but rather maintenance for the agricultural operation provides an appropriate analogy for the test to be applied in determining the scope of the exemption. It is also in keeping with Commission decisions which apply construction standards to work [*12] that is not strictly construction work but is related to construction work. n7

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n7 Bechtel Power Corp. 76 OSAHRC 38/E2, 4 BNA OSHC 1005, 1975-76 CCH OSHD P20,503 (No. 5064, 1976), aff'd per curiam 548 F.2d 248 (8th Cir. 1977); A.A. Will Sand & Gravel Corp. 76 OSAHRC 81/G2, 4 BNA OSHC 1442, 1976-77 CCH OSHD P20,864 (No. 5139, 1976); Bertrand Goldberg Assoc. 76 OSAHRC 102/A9, 4 BNA OSHC 1587, 1976-77 CCH OSHD P20,995 (No. 1165, 1976).

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Applying the rationale of Chapman and remembering that the regulation exempts agricultural operations, a broad term, it becomes clear that Darragh's action of unloading feed into the farmers' bins, the task being performed when the employees were exposed to the allegedly noncomplying ladders, is exempt as an agricultural operation. First, the particular task was performed on the individual farms which are, by any definition, agricultural establishments. Next, the delivery of feed is necessary for the farmers' raising of poultry products, an activity that is clearly [*13] agricultural. n8 Surely, the delivery of feed is as "integrally related" to the farmers' agricultural operations as the maintenance of the irrigation system was "integrally related" to the citrus farm in Chapman. Therefore, Darragh's activities, as far as they entail unloading feed into the farmers' feed bins, performed on the farmers' land and integrally related to the farmers' agricultural operations, are exempted from the application of the cited OSHA standards pursuant to 29 C.F.R. 1928.21(b).

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n8 The Standard Industrial Classification Manual classifies chicken egg producers as agricultural production. Also, in the Department of Labor's instructions to the implementation of the small farmer agricultural limitation contained in the FY-1979 HEW-Labor Appropriations Act, a "farming operation" was defined as ". . . any operation involved in the growing or harvesting of crops or the raising of livestock or poultry, or related activities conducted by a farmer on sites such as farms, dairy farms or similar farming establishments." OSHA Program Directive #76-9.

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The Secretary argues that the Commission should adopt the reasoning of the recent Supreme Court decision in Bayside Enterprises, Inc. v. NLRB, 429 U.S. 298 (1977) ("Bayside"). In Bayside, the Court accepted as reasonable the National Labor Relations Board's ("NLRB") conclusion that workers performing the exact functions as performed in this case were not exempt from the National Labor Relations Act, 29 U.S.C. 151-178 ("NLRA") as "agricultural employees."

Bayside, however, is substantially different from this case in several respects. First, Bayside addressed the exemption in the NLRA for agricultural "employees." The exemption in this case is for "agricultural operations," a much different term. Indeed, although holding that Bayside's employees were not agricultural employees, the Court noted that "both parties agree that some of Bayside's operations are agricultural and some are not." 429 U.S. at 301 (emphasis added). Because the terms of the exemptions are different, the focus of the Commission's inquiry will be different from that of the NLRB.

The NLRB, when deciding whether an employee is exempt [*15] under the NLRA as an "agricultural employee," examines "the character of the work which [the employees] perform for their own employer." Bayside, 429 U.S. at 303. The employees will be considered agricultural if their work is performed "in connection with the farming operations of their employer provided they [do] not perform a disqualifying amount of nonagricultural work." Employer Members of Grower-Shipper Vegetable Association of Central California, 230 NLRB No. 150, 96 LRRM 1054, 1055-56 (1977).

In Bayside, the NLRB found, and the Supreme Court agreed, that the drivers were performing tasks on behalf of the individual farmers who were clearly agricultural employers. However, the Court pointed out that the drivers were nevertheless not "agricultural employees" because the activities of Bayside, their own employer, were not primarily agricultural in character.

In determining the application of the "agricultural operations" exemption in section 1928.21(b), the Commission must examine the specific task that exposed the worker to the alleged noncomplying condition for which the employer was cited and decide whether the task is part of, or integrally related to, an agricultural [*16] operation. Here, the task in which Darragh's employees were engaged at the time of the alleged violation was the delivery of grain into the feed bins of the individual farmers. As discussed above, this work was performed on the farms and was integrally related to the farmers' agricultural operations. The fact that the task was performed by Darragh's employees makes it no less a part of an agricultural operation than if it had been performed by the farmers themselves or by their employees. Therefore, we conclude that the task is exempt from the cited standards as part of "agricultural operations." n9

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n9 We also reject the Secretary's argument that the activities involved in this case should not be found exempt from the cited standards because the intent of the Act is to provide as broad a coverage as possible. While it is generally true that exemptions from remedial legislation are to be narrowly construed, Southern Pacific Transp. Co., 74 OSAHRC 83/A2, 2 BNA OSHC 1313, 1974-75 CCH OSHD P19,054 (No. 1348, 1974), aff'd, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977), such exemptions must also be interpreted in accordance with their plain meaning. We also note that the exemption for "agricultural operations" found at 29 C.F.R. 1928.21(b) is one the Secretary himself has created through his rulemaking authority, and is one which the Secretary may modify or revoke through further exercise of that authority should he deem that appropriate.

[*17]

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Accordingly, Judge Patton's decision is reversed and the citations are vacated. SO ORDERED