SECRETARY OF LABOR
SIMPSON, GUMPERTZ & HEGER, INC, Respondent.
Docket No. 89-1300
BEFORE: FOULKE Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:
In this case we are asked to decide whether an
engineering company having a contract to provide design and consulting services for the
architect at a building site is subject to the standards set forth in 29 C.F.R. Part 1926,
which is entitled "Safety and Health Regulations for Construction." For the
reasons that follow, we reject the Secretary's premise that Respondent. Simpson, Gumpertz
& Heger, Inc. ("SGH"), is engaged in construction work within reach of Part
1926, and we affirm the order of Administrative Law Judge Richard DeBenedetto granting
summary judgment in favor of SGH.
This case arose following an accident during the construction of the Fuller Laboratories building for Worcester Polytechnic Institute in Worcester, Massachusetts. On December 13, 1988 a portion of the metal decking which served as formwork to support the concrete flooring collapsed as the concrete was being poured. The area which collapsed was an area where the contract specifications called for two layers of concrete with a layer of styrofoam insulation in between. SGH was cited for serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C.§ 651-678 ("the OSH Act" or "the Act") for failing to comply with two standards set forth in Subpart Q of Part 1926, "Concrete and Masonry Construction." The Secretary alleged that the decking was not capable of supporting the double pour of concrete and the insulation layer, contrary to 29 C.F.R. § 1926.703(a)(1), and that SGH had failed to make available at the jobsite drawings or plans for providing sufficient shoring to support the decking, contrary to 29 C.F.R. § 1926.703(a)(2).[] SGH contended that these standards are inapplicable because it does not perform construction work. Amici curiae briefs were also received from the American Consulting Engineers Council, the National Society of Professional Engineers, and the American Institute of Architects, who argued in support of SGH's position.
Before the judge, the Secretary argued that SGH is
subject to the construction standards in the particular circumstances presented here
because it gave advice and instruction to the general contractor, Francis Harvey &
Sons, regarding the provision of shoring and the performance of the concrete pour. As a
result, SGH, in the Secretary's view, created or was otherwise responsible for the
resulting hazardous conditions. The Secretary renews this argument before us on review but
also contends that design engineers such as SGH are engaged in construction work as a
matter of course because the activities they contract to perform are inseparable from
construction operations. We will first address the question of whether the activities
which engineers such as SGH usually undertake at a construction job constitute
construction work. []
II. CUSTOMARY DUTIES OF A DESIGN OR CONSULTING ENGINEER
SGH's contract is illustrative of the kinds of duties
performed by design or consulting engineers at construction projects. SGH contracted with
the building architect. Payette Associates, using a form published by the American
Institute of Architects. AIA Document C141, Standard Form of Agreement Between Architect
and Engineer.[] With the exception of a few provisions added by the two parties, their
contract consists entirely of the standard form language set forth document. Essentially,
SGH agreed to provide "professional services which [Payette] is required to provide
to the Owner" under Payette's separate agreement with the building owner. These
services can be divided into two major categories. First, SGH was required to prepare
necessary contract drawings and specifications in accordance with local codes and
regulations" and subject to the approval of the architect and owner. The contract
provided that SGH would work with the architect from the inception of the building design,
preparing the initial "schematic design studies," followed by "drawings and
other documents to fix and describe ... the Project, including materials, equipment,
component systems and types of construction as may be appropriate," and finally,
drawings and specifications "setting forth in detail the requirements for the
construction." These detailed documents for the actual construction were required to
"be adequate for the construction and ... provide a facility which is fit for the
purpose intended and meets the functional requirements described in the Owners'
program." The contract also provided that f the architect so required, SGH would aid
the architect and the owner in obtaining and evaluating bids for the project and in
preparing and awarding the actual construction contract themselves. Articles 1, 17.5.
Second, SGH was to undertake certain measures to
ensure that the work performed by the made contractors conformed to both the requirements
of the construction contracts themselves and "applicable local codes and
regulations" regarding the "structural adequacy" of the masonry and
other components of the completed building. Specific duties imposed on SGH during this
"Construction Phase" of the project include the duty to make on-site
inspections; to certify what amounts are due to the general contractor for the completion
of work; and to assist in resolving disputes between the owner and contractor, determining
whether the work is acceptable, and preparing changes in the work plan. Article 1.2.[]
The contract also contained a general stipulation that SGH would not be responsible for the Acts or omissions of the Architect, the Architect's other consultants, the Contractor, any Subcontractors, any of their agents or employees, or any other persons performing any of the Work" This disclaimer cross-referenced other clauses stating that SGH "shall...review the program furnished by the Owner and/or the Architect and shall confirm the understanding of these requirements and other design parameters with the Owner and Architect" and that SGH "shall review his work with the Owner and Architect for compliance with the Owner's program and/or the Architect's program directions." Articles 1.1.7, 17.2-3. That portion of the contract dealing with the construction phase set forth additional limitations on the scope of SGH's responsibilities:
1.2.13 The Engineer shall not have control or charge of, and shall not be responsible for, construction means, methods, techniques, sequences or procedures, for safety precautions and programs in connection with the Work, for the Acts or omissions of the Contractor, Subcontractors or any other persons performing any of the Work, or for the failure of any of them to carry out the Work in accordance with the Contract Documents.
1.2.20 The Engineer shall review and approve, or take
other appropriate action upon, and furnish to the Architect for final disposition the
Contractor's submittals such as Shop Drawings, Product Data and Samples with respect to
this Part of the Project; but only for conformance with the design concept of the Work and
with the information given in the Contract Documents.
The relationship between the architect and the owner
is described in American Institute of Architects, AIA Document A201, General Conditions of
the Contract for Construction. This agreement does not state any responsibilities of the
engineer but provides for the following responsibilities of the "Contractor,"
i.e., the general contractor:
4.3 SUPERVISION AND CONSTRUCTION PROCEDURES
4.3.1 The Contractor shall supervise and direct the
Work, using his best skill and attention. He shall be solely responsible for all
construction means, methods, techniques, sequences and procedures and for coordinating all
portraits of the Work under the Contract.
4.3.2 The Contractor shall be responsible to the
Owner for the acts and omissions of his employees. Subcontractors and their agents and
employees, and other persons performing any of the Work under a contract with the
"The Work" is defined as "the
completed construction required by the Contract Documents and includes all labor necessary
to produce such construction, and all materials and equipment incorporated or to be
incorporated in such construction." Article 1.1.3.
lll. FACTORS PERTAINING TO THE DEFINITION OF
Judge DeBenedetto concluded that this case is
controlled by the existing Commission precedent of Skidmore, Owings & Merrill, 5 BNA
OSHC 1762,1977-78 CCH OSHD ¶22,101 (No. 2165, 1977) ("SOM"). In SOM, the
Commission held that an architectural and engineering firm retained by Sears, Roebuck to
inspect the construction work for the Sears Tower project in Chicago and to ensure that it
complied with Sears' design specifications was not engaged in construction work under Part
1926. The Commission reasoned that considering "the realities of the construction
industry," the Part 1926 standards apply only to an employer who "perform[s]
actual construction work or exercise[s] substantial supervision over actual
construction." Id at 1764, 1977-78 CCH OSHD at p. 26,627. For the reasons that
follow, we adhere to the "substantial supervision" test we articulated in SOM,
and we agree with the judge that SGH did not exercise substantial supervision over
construction work within the meaning of SOM.
In arguing that professionals such as SGH are deemed
to be engaged in construction work, the Secretary essentially asks us to reach the same
result in this case as the Commission did in two cases which proceeded SOM, Bechtel Pwr
Corp., 4 BNA OSHC 1005,1975-76 CCH OSHD 20,503 (No. 5064, 1976). aff'd per curiam, 548
F.2d 248 (8th Cir.1977) ("Bechtel") and Bertrand Goldberg Assocs., 4 BNA OSHC
1587, 1976-77 CCH OSHD ¶20,995 (No.11645, 1976) ("Bertrand Goldberg"). Those
cases involved construction managers, that is, companies hired by the building or project
owner to administer and coordinate the construction work. Although construction managers
perform no actual construction tasks, they have considerable authority over the
performance of the work and the safety measures implemented by the subcontractors. See
SOM, 5 BNA OSHC at 1764, 1977-78 CCH OSHD at p. 26,626 (construction managers act in a
capacity similar to that of a general contractor) In concluding that construction managers
are covered by the construction standards in Part 1926, the Commission reasoned that their
administrative and supervisory functions are "inextricably intertwined with the
actual physical labor" and that consequently their activities on the jobsite are
"so directly and vitally related to the Construction being performed" that they
are engaged in construction work within the meaning of the construction standards.
Bechtel, 4 BNA OSHC at 1006, 1975-76 CCH OSHD at p. 24,499; Bertrand Goldberg, 4 BNA OSHC
at 1589,1976-77 CCH OSHD at 25,220. In SOM, however, the Commission distinguished the
functions performed by the architectural and engineering firm involved in that case from
the duties of a construction manager, concluding that "while SOM exercises some
supervision over construction we would not characterize it as substantial in the sense
that supervision by a construction manager is substantial." 5 BNA OSHC at 1764,
1977-78 CCH OSHD at p. 26,627. See Cauldwell-Wingate Corp., 6 BNA OSHC 1619, 1621, 1978
CCH OSHD ¶22,729, p. 27,436 (No. 14260, 1978) (applying test of "substantial
supervision over actual construction" in determining whether a construction manager
is subject to the construction standards).
The Secretary contends that design or consulting
engineers such as SGH are engaged in construction work because the functions they perform
are a necessary part of the construction project in question. In the Secretary's view, SOM
was wrongly decided to the extent it holds that design and engineering professionals are
not subject to the construction standards unless they substantially supervise the
performance of the construction work at the jobsite. We reject that argument for several
reasons. At the outset, we conclude that the history of the promulgation of the Part 1926
standards demonstrates that SGH's activities do not constitute construction work within
the meaning of Part 1926.
B. History and Application of part 1926 Ad
As the secretary notes, she originally promulgated
the standards in Part 1926 under the authority of the Contract Work Hours and Safety
Standards Act 40 U.S.C. § 327-333, popularly known as the Construction Safety Act
("CSA"). Bechtel, 4 BNA OSHC at 1007, 1975-76 CCH OSHD at 24,499. The pertinent
section of the CSA. section 107 (a), 40 U.S.C. § 333(a) states as follows.
It shall be a condition of [Federal or
Federally-funded contracts] for construction, alteration and/or repair, including painting
and decorating, that no contractor or subcontractor contracting for any portion of the
contract work shall require any laborer or mechanic employed in the performance of the
contract to work in surroundings or under working conditions which are unsanitary,
hazardous, or dangerous to his health or safety, as determined by construction safety and
health standards promulgated by the Secretary...
The standards originally promulgated under the CSA
were then adopted as standards under the OSH Act by section 1910.12,[] which provides:
§ 1910.12 Construction work.
(a) Standards. The standards prescribed in Part 1926
of this chapter are adopted as occupational safety and health standards under section 6 of
the Act and shall apply, according to the provisions thereof, to every employment and
place of employment of every employee engaged in construction work. Each employer shall
protect the employment and places of employment of each of his employees engaged in
construction work by complying with the appropriate standards prescribed in this
(b) Definition. For purposes of this section,
Construction work means work for construction, alteration, and/or repair, including
painting and decorating. See the discussion of these terms In § 1926.13 of this title.
The referenced section, 29 C.F.R. § 1926.13, is entitled "Interpretation of statutory terms." Section 1926.13(a) explains that "contractor" and "subcontractor," which appear in section 107 of the CSA and "construction," "alteration," and "repair," which are used in section 1910.12(b) as well in the CSA are common terms customarily found in statutes dealing with Federal or Federally funded construction contracts:
The terms "construction," "alteration," and "repair" used in section 107 of the Act are also used in section 1 of the Davis-Bacon Act (40 U.S.C 276a), providing minimum wage protection on Federal construction contracts, and section 1 of the Miller Act (40 U.S.C 270a), providing performance and payment bond protection on Federal construction contracts. Similarly, the terms "contractor" and "subcontractor" are used in those statutes, as well as in the Copeland (Anti-Kickback) Act (40 U.S.C. 276c) and the [CSA] itself, which apply concurrently with the Miller Act and the Davis-Bacon Act on Federal construction contracts and also apply to most federally assisted construction contracts. The use of the same or identical terms in these statutes which apply concurrently with section 107 of the [CSA] have considerable precedential value in ascertaining the coverage of section 107.
Section 1926.13(c) defines "subcontractor" as "a person who agrees to perform any part of the labor or material requirements of a contract for construction, alteration or repair." In addition, the terms "employee" and "employer", which also are used in the CSA, are defined in section 1926.32, which in turn refers to the Davis-Bacon Act, 40 U.S.C. § 276a, the statute dealing with wage rates for "Iaborers and mechanics" on Federal construction contracts. It is clear from the definition sections of the CSA and definitions under the referenced Davis-Bacon Act that the standards enacted under the CSA are directed to the performance of the actual physical craft labor at a construction site and do not apply to those whose functions are administrative or professional in nature.[]
In her reply brief before us, the Secretary acknowledged that when she promulgated section 1910.12 adopting the CSA standard under the OSH Act, she alluded to the definitions set forth in the CSA standard at section 1926.13. The Secretary further that when originally adopted under the CSA, the standards were limited to the argument, however counsel for the Secretary contended that because OSH Act applies generally to all employees of all employers, the CSA standards were adopted under the OSH Act, they were no longer subject to that may have existed under the CSA. In the Secretary's view, the provisions of Part 1976 and regulations promulgated under other statutes referred to in Part 1926, including the definition of "laborer" and "mechanic",cannot be used to limit the scope of the OSH Act or the standards enforced through it.
It is beyond question that the CSA was enacted under the limited contracting power of the Federal government whereas the OSH Act is based on the broad authority of the Commerce Clause to regulate all employers whose business affects interstate commerce. Sections 2(b) and 3(5) of the Act, 29 U.S.C. §§ 651(b) and 652(5). As the Secretary correctly stated in section 1910.11 (a), "[t]he provisions of this subpart ... adopt[,] and extend the applicability of, established Federal standards ... with respect to every employer, employee, and employment covered by the Act." Clearly, language restricting the CSA to contractors and subcontractors and to laborers and mechanics has no bearing in determining whether a particular employer is subject to the enforcement of standards under the OSH Act See Brock v. Cardinal Indus., 828 F.2d 373,377 n.7 (6th Cir. 1987). That, however, is not the issue before us here. The question in this case is a much narrower ones whether the particular work activities in which SGH is engaged constitute construction work within the meaning of section 1910.12 so as to come within the scope of the Part 1926 standards. See Id. at 378 n.8.
In deciding an issue analogous to that presented here, the Sixth Circuit in Cardinal Industries relied on the definition and scope provisions of Part 1926 and the Davis-Bacon Act regulations in holding that an employer who manufactures modular housing units at a facility having no physical connection with a construction site is not governed by the construction standards. The court emphasized the stipulation in section 1926.13 that the use of common terminology in statutes dealing with Federal or Federally-funded construction projects has "considerable precedential value" in determining the scope of the CSA. Noting the Secretary's own cross-reference in section 1910.12(b) to section 1926.13, the court reasoned that the interpretation of the terms "construction, alteration, and repair" conveyed by those statutes should concomitantly be considered precedent for defining "construction work" under section 1910.12. Id. at 377.[]
Cardinal Industries, furthermore, is consistent with the general principal that standards containing broad or undefined terms may be given meaning by reference to other standards Vanco Constr., Inc.11 BNA OSHC 1058, 1061, 1983-84 CCH OSHD ¶26,372, p. 33,454 (No. 79-4945, 1982) aff'd, 723 F.2d 410 (5th Cir. 1984). The purported definition set forth in 1910.12 (b). "Construction work means work for construction, alteration, and/or repair" in fact does not explain what is meant by "construction work." See Nationwide Mut. Ins. Co. v Darden, 112 S. Ct 1344, 1346, (1992) ("nominal" definition of "employee" in the ERISA law, 29 U.S.C § 1002(6), as "any individual employed by an employer," sets forth no actual definition because it is "completely circular"). Accordingly, resort to other regulatory provisions is appropriate to give meaning to a term that would otherwise be vague. Gold-Kist, Inc. 7 BNA OSHC 1855, 1859-60, 1980 CCH OSHD ¶24,205, p. 29,433 (No. 76-2049, 1979). See Darden, 112 S. Ct.at 1848 (other statutory provisions may give guidance on the meaning of an otherwise undefined term or suggest principles by which the term can be construed); cf. Hughes Bros., 6 BNA OSHC 1830, 1833, 1978 CCH OSHD ¶22,909, p. 27,717 (No. 12523, 1978) (regulatory provisions are to be read as a coherent whole).
As the amici correctly observe in their brief before us, the Secretary herself agrued to the Sixth Circuit in Cardinal Industries that regulations under the CSA and Davis-Bacon Act should be accepted as "controlling precedent" in defining what constitutes "construction work" under the Part 1926 standards. Secretary's brief at 13, 15, Cardinal Industries (attachment "B" to the amici brief). As the Secretary there stated, "whether the Part 1926 standards apply depends on the interpretation of the Construction Safety Act, which in turn depends largely on whether the work at issue is considered construction work under the Davis-Bacon Act" Id at 18. Similarly, in her petition for rehearing of the decision in Cleveland Elec. Illuminating Co., 910 F.2d 1333 (6th Cir. 1990), the Secretary also relied on a regulation defining the term defining the term "site of the work" used in the Davis-Bacon Act and decisions of the Wage Appeals Board, which reviews wage determinations issued under the Davis-Bacon Act, to support her argument that an employer's program for training its construction employees was covered by Part 1926 even though the training did not take place at the actual site of the construction activities. Secretary's petition for reh'g at 6-9, Cleveland Electric (attachment "D" to the amici brief). See National Engg. & Contract Co. v. OSHRC, 838 F.2d 815. 817-18 (6th Cir. 1987) (Secretary cites regulations under the Davis-Bacon Act to support contention that installation of a valve as part of a project to upgrade and expand a waste treatment plant is construction work).
Indeed, in other cases the Secretary has contended that the definition provisions of the CSA standards should be applied in determining the scope of the substantive standards in Part 1926. For instance, in Ed Taylor Constr. Co., 15 BNA OSHC 1711, 1714-16, 1992 CCH OSHD ¶29,764, pp. 40,479-81 (No. 88-2463, 1992), the Secretary asserted, and the Commission agreed, that the definition of "competent person" set forth in section 1926.32(f) should be read into section 1926.20(b)(2), which requires that the employer institute safety programs that provide for inspections to be conducted by "competent persons designated by the employers." See also Capform, Inc.,13 BNA OSHC 2219, 1987-90 CCH OSHD ¶28,503 (No. 84-556, 1989) (definition of "competent person" in 1926.32(f) applied in determining whether the Secretary satisfied her burden of proof under a standard requiring inspection of excavations by a "competent person"). Although we recognize that these cases deal with the definition of terms in the substantive standards with which employers must comply under the Act, we see no conceptual difference between applying the definition and interpretative provisions of Part 1926 to elucidate the requirements of the substantive safety and health standards within that Part and using those same provisions to ascertain the general scope and applicability of Part 1926. In the first instance, the definitional and interpretive provisions define the employer's obligations under a specific standard, in the latter instance, they determine more generally the employer's duty to comply with the entirety of Part 1926.
We also note that although the Secretary generally provided in section 1910.11(b) that "interpretative rules" set forth in Part 1926 are not incorporated by reference in section 1910.12, see supra note 7, she expressly incorporated the definition of Part 1926 when she amended Subpart Q, containing the concrete and masonry standards at issue here. As part of an extensive revision of these standards, the Secretary modified the original provision containing definitions of terms used in Subpart Q. 53 Fed. Reg. 22,612, 22,643 (1988). "In addition to the definitions set forth in § 1926.32, the following definitions apply to this subpart." (Emphasis added.) The terms "employer" and "employee" are among those used in Subpart Q which are defined in section 1926.32.[] We view section 1926.700(b) as indicating that the Secretary herself perceives that while the scope of the CSA itself may not be an issue under the OSH Act, the definition and interpretation provisions of Part 1926 are relevant to the extent they define the meaning and applicability of the safety and health requirements set forth in Part 1926.
C. General Nature of Activities on a Construction Site
Our conclusion that professionals such as SGH cannot
be held subject to the construction standards based solely on the fact that they have a
relationship to the overall construction project, without regard to the specific kinds of
work activities in which they engage, finds support also in the policy considerations that
arise in an analogous context dealing with the allocation of responsibility among various
employers on multi-employer construction worksites. As a general proposition, the Act
reflects the understanding of Congress that its objectives are best effectuated by placing
the responsibility for complying with standards and abating hazardous conditions on the
employers or the exposed employees on the premise that the employer has the primary
control over the work environment. Anning-Johnson Co., v. OSHRC, 516 F.2d 1081, 1088 (7th
Cir. 1975). At the same time, however, subcontractors at construction worksites normally
are limited to the particular trade crafts for which they have been hired and, as a
result, they may not as a practical matter be in a position to correct the hazardous
conditions to which their employees are exposed. ld.
Accordingly, to Commission and the courts hold that a
subcontractor who does not have the requisite power and authority over the conditions in
question will be excused from responsibility for those conditions if it takes alternative
measures to protect its employees, such as asking the responsible contractor to correct
the conditions or bringing them to the attention of the general contractor. New England
Tel. &Tel. Co. v. Secretary of Labor, 589 F.2d 81 (1st Cir. 1978) (per curiam);
Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD ¶20,690 (No. 3694, 1976)
(consolidated); Grossman Steel & Aluminum Corp, 4 BNA OSHC 1185, 1975-76 CCH OSHD
¶20,691 (No. 12775, 1976). See Zemon Concrete Corp. v. OSHRC, 683 F.2d 176 (7th Cir.
1982). See also Central of Georgia Railroad Co. v. OSHRC, 576 F.2d 620, 623 (5th Cir.
1978) (discussion of "intricacies" of multi-employer construction worksites as
opposed to worksites in general industry where more than one employer may be involved).
Thus, responsibility for the correction of hazardous conditions is predicated on either
one of two factors. The first is creation of or control over the working conditions in
question, which in turn depends on the physical craft or trade represented by the various
contractors. See Union Boiler Co., 11 BNA OSHC 1241, 1246, 1983 84 CCH OSHD ¶26,453, p.
33,607 (No. 79-232, 1983), aff'd without published opinion, 732 F.2d 151(4th Cir. 1984)
("[c]ontrol is established when it is shown that an employer possessed the expertise
and personnel to abate a hazard"). The second is the customary supervisory authority
exercised by the general contractor or other employer having overall control over
condition at the site. Lewis and Lambert Metal Contrac., Inc., 12 BNA 1984-85 CCH OSHD
¶27,073, p. 34,899 (No 80 5295 S, 1984).
We find no basis for creating an exception to the
long-standing principles governing construction work sites by holding that design or
engineering firms may be held responsible supply been use their activities are related to
the overall construction project, to the extent to which they actually perform or
supervise the construction work itself. No authority to suggest such a holding has been
cited to us, and indeed the ease law suggests the contrary. There is a long standing body
of case law which has consistently held that "construction work" within the
meaning of § 1910.12 refers "only to actual construction or to related activities
that are an integral and necessary part of construction work." Royal Logging Co. 7
BNA OSHC 1744, 1747 & n. 7, 1749-50, 1979 CCH OSHD ¶23,914, pp. 28,993 & n. 7,
28,996 (No 15169, 1979) aff'd, 645 F.2d 822 (9th Cir. 1981), and cases cited therein. It
is clear however, that under the established precedent, activities sufficiently
"related" to construction work to come within the construction standards are
those which involve the performance of physical labor.
For example, National Engg involved the question of
whether the general contractor at a project to upgrade and expand a waste treatment plant
was engaged in construction work when it installed a valve and performed associated
cleanup work. The court reasoned that "[r]eplacement of the check valves in this case
cannot be isolated and seen as accomplishing a non-construction purpose when respondent's
primary purpose at the worksite was to perform construction work" 838 F.2d at 818
(quoting 86 OSAHRC 56/A12 (No. 85-1151,1986) (ALJ)). In A.A. Will Sand & Gravel
Corp.,4 BNA OSHC 1442, 1443, 1976-77 CCH OSHD ¶20,864, p. 25,045 (No. 5139, 1976), the
Commission held that delivery of material to a construction site constitutes construction
work where the delivery employee assisted an employee it he site In bringing. the material
to the specific work area since the delivery became "an integral part of...the
construction activities." In that decision the Commission cited West Allis Lime &
Cement Co., 2 BNA OSHC 1453, 75 CCH OSHD ¶19,155 (No. 1324, 1974), aff'g 74 OSAHRC 90/E12
(ALJ, 1973) (although mere delivery is not construction work, Part 1926 applies to a
concrete supplier whose driver positioned his truck several hundred feet into the job site
at a material hoist into which he poured the concrete) In the same vein, the commission
ruled in United Tel. Co. of the Carolinas, 1 BNA OSHC 1644, 1645, 1976-77 CCH, OSHD
¶21,043. p. 25,323 (No. 4210, 1976) that employees of a telephone company assigned to
move telephone poles to make room for a highway being constructed are subject to the
construction standards because erecting and removing telephone poles and transferring
lines constitutes "alteration" within the meaning of section 1910.12(b)and also
because it is incidental to subsequent construction and part of the total work to be
performed." See also Heede Intl., Inc, 75 OSAHRC 26/C11 (ALJ, 1973) aff'd, 2 BNA OSHC
1466, 1974-75 CCH OSHD ¶19,182) (No. 1889, 1975) that had been used on a construction
site constitutes construction work).
The Secretary's statements when she adopted
amendments to the concrete and masonry standards in Subpart: Q further demonstrate that
responsibility for hazardous working conditions on multi-employer worksites rests with the
trade contractors who have direct control over those conditions or with those who directly
supervise those contractors.
The Secretary issued a notice of proposed rulemaking
on September 16, 1985, identifying "the collapse or failure of the entire structure
or its forms and shoring" as one of the hazards associated with concrete and masonry
structures. 50 Fed. Reg. 37,543 (1985). One issue the Secretary dealt with was whether
requiring a structural engineer to design and inspect the "layout" for shoring
in certain circumstances would help prevent improper erection of such shoring. Also in
question was the requirement in the existing standard that engineer specifications"
be followed in determining the length of time shoring should remain in place following
concrete placement, which the Secretary proposed to delete. In light of these concerns,
the Secretary requested comments on the current industry practice for determining when
forms may he removed and on whether imposing a mandatory requirement that engineers
inspect concrete construction operations for conformity with plans and specifications
would improve worker safety. Id. at 37,549-50.
Revisions to Subpart Q were promulgated on June
16,1988. 53 Fed. Reg. 22,612 The Secretary modified her proposal to amend section 1926.701
(a), which addresses the point at which leads may be placed on a concrete structure, by
deleting a proposed implementation that holds be "approved by the engineer or
architect" in favor of a requirement that the contract make the determination
"based on information received from a person in structural design." Id. at
22,616. The Secretary explained,
OSHA proposed to revise the existing rule by deleting
that portion of the provision which required that construction loads be "considered
in the design," leaving only the requirement that the engineer/architect approve the
placement of loads on partially completed structures. OSHA proposed this revision because
engineers-architects are not always aware of all construction loads that will ultimately
be placed on the structure, and thus, they would not be able to properly consider all such
construction loads in the design stage. However, OSHA believes that the employer, as the
person who has the ability to take corrective action and as the person with ultimate
responsibility for the safety and health of the workers, also has the responsibility for
making such decisions
After carefully considering all the comments and testimony received, OSHA has decided to delete the requirement for the specified engineering- architect services. This decision is based on the comments and testimony received which indicates that engineer-architects frequently do not consider construction loads in the design, nor do they approve their placement on partially completed structures....Therefore, OSHA is requiring that the employer make the determination that the structure or portion of the structure is capable of supporting the construction loads. The employer must make this determination on the basis of information received from a person qualified in structural design. This revision also places responsibility for employee safety with the person directly responsible for the construction operations.
Id.at 22,616-17 (emphasis added).
The Secretary also declined to adopt a suggestion by
the Building and Construction Trades Department, AFL-CIO, that section 1926.703 (a) (1),
which deals with "cast-in-place" concrete and is one of the standards SGH is
alleged to have violated, be revised to require that formwork be designed by a structural
engineer. OSHA reasoned that such a mandatory requirement would be unnecessary in part
because the trade contractor has the responsibility to decide how to satisfy the objective
of the standard that the formwork be capable of supporting the load. Id. at 22,625.
Although OSHA did adopt a requirement that with respect to one particular type of shoring,
single post shores, a "qualified designer" prepare the shoring design, OSHA
again emphasized that the responsibility for ensuring safe working conditions ultimately
belongs to the trade contractors and not the design or consulting professionals. Thus,
OSHA provided that "the employer have an engineer who is qualified in structural
design" inspect the shoring after it is erected. Id. at 22,629 (emphasis added);
The Secretary conducted a separate rulemaking for
standards governing lift-slab operations, which are defined at section 1926.700(b)(3) as
"a method of concrete construction in which floor, and roof slabs are cast on or at
ground level and, using jacks, lifted into position."[] The existing section
1926.705 governing this type of operation incorporated an industry safety code which
required that lift-slab operations "be designed and planned by a qualified
professional engineer or architect." ANSI 10.9-1970, Safety Requirements for Concrete
Construction and Masonry Work, section 11.2 (1970). The Secretary had proposed changing
this requirement to conform to the language of the 1983 version of the ANSI standard,
which provided that these tasks be performed by a "qualified designer." The
Advisory Committee on Construction Safety and Health, however, recommended instead the
term "professional engineer or architect registered in the state where the work is
being done." The advisory committee also recommended that the engineer or architect
be required to "supervise" lift-slab operations. Accordingly, the Secretary
requested comments on whether employee safety would be enhanced by requiring an engineer
or architect to do this work and, if so, what type of engineer would be appropriate. 55
Fed. Reg. 42,309-310 (1990).
Noting that the various comments included, among
other things, a suggestion that these duties be performed by the "Engineer of
Record," who under the laws of every state must approve building plans and must be
licensed in the state where the work is being done, OSHA concluded, as it had in the
previous amendments to Subpart Q, that the employees safety is the province of the
specific construction made contractor:
[T]here is no clear discussion of the benefits to worker safety to be gained by requiring a qualified designer instead of a registered professional engineer or vice versa...It is the Agency's intent that the lift-slab contractor be responsible for the lift slab operations at the construction site. OSHA observes that the general contractor (who probably is not the lift-slab contractor) is generally responsible for the entire structure and the engineer of Record is a representative of the owner or of the general contractor, not the lifting contractor. Therefore, it would appear that the recommendations that OSHA place responsibility for work safety matters on the EOR, when it is known that the EOR will not be in the employ of the lifting contractor, would not provide adequate protection. OSHA observes that the Agency's jurisdiction is based on the employer/employee relationship.
[W]hile many commenters noted support for the term "qualified designer," they also supported requiring the engineer of record to have some responsibility for reviewing the work of the qualified designer. OSHA does not believe worker safety and could inadvertently place responsibilities on persons who are not in a position to control employee exposures to hazards....
Id'. at 42,311-12 (emphasis added).
Indeed, the policy considerations the Secretary addressed when she promulgated these standards are reflected in her enforcement actions in this very case. In addition to SGH, the Secretary issued citations relating to the accident to three of the contractors at the site: Francis Harvey and Sons, the general contractor; Worcester Steel Erectors, the metal decking subcontractor; and D & M Concrete Floor Company, the concrete subcontractor. Worcester Steel and D & M Concrete were cited for violations of the same standard SGH alleged to have violated, and the citation issued to D & M Concrete is worded almost identically to SGH's citation.[] Although the issuance of citations to the general contractor and specific trade contractors for the same conditions is not conclusive on the question before us, it does suggest that the Secretary recognizes that construction contract as themselves are responsible for the safety of the working conditions at this site and that SGH itself is not in a position to effectuate abatement or correction of the hazardous conditions questioned.
IV. ACCEPTANCE OF THE SECRETARY'S INTERPRETATION
The Secretary, nevertheless,contends that under Martin v. OSHRC (CF&I Steel Corp).111 S.Ct 1171, 1991,we must defer to her interpretation that design and engineering professionals are engaged in "construction work" within the meaning of section 1910.12(b). We conclude that the holding of for two reasons. First, in our view, we need not reach the deference issue addressed in CF&I because the Secretary's interpretation is invalid under the Administrative Procedure Act ("APA") for not having been promulgated through notice and comment rulemaking. Second, even assuming CF&I is applicable, it does not require deference in the circumstances presented here because the Secretary's interpretation does not meet the prevailing criteria for ableness reasonableness.
A. Requirement for Notice and Comment
The APA. 5 U.S.C. § 551(4), broadly defines a
"rule" to include "an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe law or
policy ......" Under section 553, notice and an opportunity for comment is required
for the promulgation of a rule except for "interpretative rules, general statements
of policy or rules of agency organization, procedure, or practice." 5 U.S.C. §
553(b)(A). Although the various categories of rules referred to in this section are not
clearly defined, a rule for which notice and comment is required is generally understood
to be a rule issued pursuant to specific statutory authority to regulate the matter in
issue and which constitutes the law which both the agency And reviewing authorities must
enforce. Phoenix Forging Co., 12 BNA, OSHC 1317,1323 n.14, 1984-85 CCH OSHD ¶27,256, p.
35,215 n.14 (No. 82-398, 1985): 2 Davis, Administrative Law Treatise § 7:11 at 53-54 (2d
There is no question that section 6 of the Act gives
the Secretary authority to issue binding rules through the promulgation of occupational
safety and health standards.
Northwest Airlines, Inc., 8 BNA OSHC 1982, 1989 CCH OSHD ¶24,751, p 30,488 (No. 13649, 1980). An agency empowered to enact legislative rules, however, may also elect to issue non-legislative statements. Unlike legislative rules,which have binding legal effect and can be set aside by the courts only if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law a reviewing authority has greater latitude to depart from nonbinding actions or statements or give them less weight. Batterton v. Marshall, 648 F.2d 694, 701-02 (D.C. Cir. 1980); Cerro Metal Prods., Dive of Mannon Group Inc v. Marshall, 620 F.2d 964, 981-82(3d Cir. 1980). Thus, in CF&I, the Court held that while interpretations issued by the secretary "are not entitled to the same deference as norms that derive from the secretary's delegated lawmaking powers," they are to be given deference so long as they are reasonable. 111 S. Ct. at 1179. See Erie Coke Corp., 15 BNA OSHC 1561, 1563, 1992 CCH OSHD ¶29,653, p. 40,148 (No 88-611, 1992) petition for review filed, No. 92-3297 (3d Cir. June 8,1992).
In this case, the Secretary's position that the term
"construction work" used in section 1910.12 necessarily includes the work
performed by design and engineering professionals such as SGH is not a legislative rule
promulgated through the rulemaking procedures of section 6 of the Act, and the Secretary
does not contend that it must be given binding legal effect as a substantive rule of law.
See APWU v. USPS, 707 F.2d 548, 558 (D.C. Cir. 1983), cert. denied, 465 U.S. 1100 (1984)
(a rule is legislative only if Congress has delegated legislative power to the agency and
if the agency intended to use that power in promulgating the rule at issue). Rather, the
Secretary contends that as an interpretation, for which notice and an opportunity to be
heard is not required under 5 U.S.C. § 553(b)(A), her position is entitled to deference
because it is a reasonable interpretation of ambiguous regulatory terminology.
In evaluating arguments of this nature, there are essentially two divergent lines of authority. As the court in Cerro explained,
[one] approach, which has substantial support in the
case law, [is] to distinguish between interpretative and legislative rules and then to
strike down the latter if found to be masquerading as the former. Under this method, the
function of the court is to decide what a rule "really" does and then require a
rule substantially affecting a legal right to be promulgated by notice-and-comment
rulemaking or else be he held invalid.
Conversely, "[t]he alternative approach . . . is
to take the agency at its word: If an agency that has the statutorily delegated power to
issue legislative rules chooses instead to issue an interpretive rule, the court accepts
that characterization of the rule" but then decides what weight to assign to it. 620
F.2d at 981 (citing Daughters of Miriam Center for the Aged v. Mathews, 590 F.2d 1250,1255
n.9, 1258-59 (3d Cir. 1978)) (footnotes omitted). Compare Columbia Broadcasting Sys Inc.
v. United States, 316 U.S. 407, 416 (1942) and Lewis Mota v. Secretary of Labor, 469 F.2d
478, 481-82 (2d Cir. 1972) (the actual effect of the agency action rather than the label
the agency places on it is conclusive) with American Hosp. Assn. v. Bowen, 834 F.2d 1037
(D.C.Cir. 1978) (in deciding whether notice and comment procedures apply to agency action.
the court will consider the agency's own characterization of its action). In addressing
this question under the OSH Act, the Third Circuit in Cerro ruled that it would accept the
Secretary's view that the rule in question was interpretative but would not defer to it,
whereas the District of Columbia Circuit has held that the label the Secretary assigns to
her rulemaking action is not dispositive. Chamber of Commerce of the United States v.
OSHA, 636 F.2d 464, 468 (D.C. Cir. 1980). See APWU, 707 F.2d at 560 (holding that even an
interpretative rule may have a significant impact on the rights of individuals requiring
that it be supported by a rulemaking record based on notice and an opportunity to be
In our view, the Secretary's position that design and
engineering professionals on construction project are subject to the standards in Part
1926 is an agency action requiring notice and comment rulemaking. Although the Secretary
does not contend that her interpretation of the term "construction work" is
necessarily binding on a reviewing authority, the practical effect of her position that
design and engineering professionals are engaged in construction work is to subject them
to compliance with the Part 1926 standards by exposing them to enforcement action for
violation of the Act. Thus, under the interpretation advanced here, the Part 1926
standards become norms for the conduct of design and engineering professionals. In these
circumstances, we conclude that those who come within the scope of the interpretation
should have the opportunity to be heard with respect to it.
Community Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987). See Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like--Should Agencies Use Them to Bind the Public?, 1992 Admin. Conf. U.S. 12-15 (discussion of agency intent to bind affected parties or practical binding effect as a basis for requiring notice and comment). In addition, under the principle advanced by the Secretary here, design and engineering professionals must assume the responsibility for the abatement of hazardous conditions at construction sites regardless of the fact that their contractual responsibilities are limited to matters of design and conformance with the building plan and that their presence on the site itself may be occasional and irregular. See Batterton, 648 F.2d at 709 n.83 (referring "to fundamental fairness and to the advantages from informing the agency as justifications for the 'substantial impact' test for notice and comment procedure"); Air Transp. Assn. of America v. DOT, 900 F.2d 369 (D.C. Cir. 1990) (exemption under 5 U.S.C. § 553(b)(A) does not apply to agency action that substantially affects the rights or interests of persons subject to agency regulation); National Motor Freight Traffic Assn. v. United States, 268 F. Supp. 90 (D.D.C 1967), aff'd per curiam, 393 U.S. 18 (1968) (3-Judge court) (importance to industry warrants opportunity for notice and comment). As the court stated in Texaco, Inc. v. FPC, 417. F.2d 740, 743 (3d Cir. 1969), "Section 553 . . . enables the agency promulgating the rule to educate itself before establishing rules and procedures which have a substantial impact on those regulated."
We also conclude that notice and an opportunity to be
heard is warranted in view of the unique characteristics of multi-employer construction
worksites, under which responsibility for hazardous conditions depends not only on
exposure of an employer's own employees but also on an employer's ability to eliminate or
prevent hazardous conditions to which employees of other employers have exposed. Generally
speaking, employers subject to the construction standards are required under Section
1926.20(b)(2) to conduct inspections of jobsites to ascertain any possible safety or
health hazards[] and under section 1926.21(b)(2) to "instruct each employee in
the recognition and avoidance of unsafe conditions." E.g. R & R Builders, Inc.,
15 BNA OSHC 1383, 1991 CCH OSHD ¶29,531 (No. 88-282, 1991). The secretary's position that
design and engineering professionals are engaged in construction work merely because they
are associated with the overall construction project is likely to alter substantially the
existing relationships between various contractors on the site. Because professionals such
as SGH do not have specifically limited, discrete work areas, holding them subject to the
construction standards could conceivably require them to take sufficient measures to
inform themselves or hazardous conditions occurring at all locations at the worksite, to
bring all hazardous conditions directly to the attention of the construction trade
contractors who created the hazards or the general contractor, and to insist that the
conditions be corrected. By the same token, trade contractors whose employees are exposed
to hazards they did not create or control could discharge their responsibilities under the
construction standards by making their concerns known to the design engineer rather than
to the creating and controlling subcontractor or to the general contractor. Not only would
these consequences introduce an additional layer of authority and responsibility onto the
worksite, but ultimately they would result in the design or engineering professional
duplicating the safety program and overall supervisory functions of the general
contractor. Because of the obvious importance of such concerns to the construction
industry, we believe that the Secretary should solicit the views of affected employers as
to whether the construction standards can properly be applied to professionals who are not
construction trade contractors. See Batterton, Pharmaceutical Mfrs. Assn. v. Finch, 307 F.
Supp. 858, 863 (D. Del. 1970); and National Motor Freight, 268 F. Supp at 96 (notice and
comment required in view of universal importance of regulatory action to the
affected industry). Indeed, modern administrative law embodies the policy that
agencies should make greater rather than less use of notice and comment rulemaking
authority. Pacific Coast European Conference v. FPC, 376 F2d 785, 789 (D.C. Cir. 1967).
In this regard, we think it instructive that SOM, in
which the Commission ruled that the construction standards did not apply to a design
engineer, was the only Commission proceeding other than this case in which the Secretary
sought to apply the construction standards to employers such as SGH. So far as the record
before us indicates, the Secretary's interpretation here marks a substantial change in the
enforcement practices she has applied since the Commission issued its decision in SOM in
1977. [] This factor is an additional ground for holding that notice and comment
rulemaking is required in the circumstances here. W.C. v. Bowen, 807 F.2d 1502, 1504 (9th
Cir. 1987); Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir. 1983); Detroit Edison Co.
v. EPA, 496 F.2d 244 (6th Cir. 1974); Lewis Mota, 469 F.2d at 481-82; Phoenix Forging, 12
BNA OSHC at 1323, 1984-85 CCH OSHD at p. 35,215.
Furthermore, the court in Cardinal Industries held
that to disregard the definition provisions set forth in Part 1926 and in the regulations
promulgated under the other statutes referred to in those standards "effectively
[rewrites] section 1910.12(b) deleting the .... reference to section 1926.11" 828
F.2d at 379. Although we do not decide the case solely on the ground that the Secretary's
position here results in a substantive alteration of section 1910.121 [] it is a
generally accepted proposition that an agency may not substantively amend regulations
through an interpretation. Bonessa v. United States Steel Corp., 884 F.2d 726,732,(3d Cir.
1989) and cases cited therein: Fluor Constructors v. OSHRC, 861 F.2d 936,942 (6th
Cir.1989) American Cyanamid Co., 15 BNA OSHC 1497, 1504-05, 1992 CCH OSHD ¶29,508,
p.40,068 (No.86-681, 1992), petition for review filed, No. 93-3321 (6th Cir. Apr. 7,1992).
As the Court noted generally noted in NLRB v. Wyman-Gordon Co., 394 U.S. 759, APA's
rulemaking provisions "were designed to assure fairness and mature consideration of
rules of general application" (lead opinion), and agencies are to follow those
procedures when announcing a new rule of law to govern parties in the future." Id. at
771 concurring opinion).
Assuming, however, that the Secretary's
interpretative position here is not invalid under the APA for having been adopted without
notice and opportunity to be heard, we conclude that it is not entitled to deference. In
our view, the interpretation the Secretary advances here does not meet the Court's
criteria for determining reasonableness.
CF&I dealt with a situation analogous to that
here--an interpretation embodied in the form of a citation issued to an employer following
an inspection and subsequently explicated or presented during an adjudicatory proceeding
resulting from that citation. The Court did not necessarily consider issuance of a
citation alone to be conclusive on the question of reasonableness. As the Court stated,
"the decision to use a citation as the initial means for announcing a particular
interpretation may bear on the adequacy of notice to regulated parties." 111 S. Ct.
at 1180 (emphasis added). See Miami Indus., Inc., 15 BNA OSHC 1258, 1267 n.8, 1991 CCH
OSHD ¶29,465, p. 39,745 n.8 (No. 88-671, 1991), petition for review filed, No. 91-4045
(6th Cir. Nov. 7, 1991). Since this case presents the first occasion since issuance of our
decision in SOM that the Secretary has sought to apply the construction standards to
design and consulting professionals as opposed to those having managerial authority over
the actual performance of construction work, CF&I does not necessarily mandate that
deference be paid to the Secretary's interpretation. Furthermore, the Court in CF&I
generally held that "other factors relevant to the reasonableness" of a
rulemaking action should be taken into consideration as well, including "whether the
Secretary has consistently applied the interpretation embodied in the citation." 111
S. Ct. at 1179-80 (emphasis added). That holding conforms to long-standing Court precedent
that the weight to be given to interpretative agency statements depends on the entirety of
the circumstances: "'The weight of such [an interpretation] in a particular case will
depend upon the thoroughness evident in its consideration, the validity of its reasoning,
its consistency with earlier and later pronouncements, and all those factors which give it
power to persuade, if lacking power to control.'" General Electric Co. v. Gilbert,
429 U.S. 125, 142 (1976) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
In our view, taking all the circumstances into account compels the conclusion that
deference is not due to the Secretary's interpretation here.
In the first place, the Secretary's position
disregards the definitions and other interpretative provisions stated or referenced in
Part 1926, under which the performance of physical trade labor is the criterion for
coverage. See Knappton Corp v. Secretary of Labor, 15 BNA OSHC 1657 (9th Cir. May 29,
1992) (unpublished) (deference not due to an interpretation which is at variance with both
the history and wording of the Secretary's regulation). Additionally, the Secretary's
issuance of a citation to SGH alleging violations of standards in Part 1926 cannot be
reconciled with the Secretary's other enforcement actions actions arising out of the same
inspection as that at issue here. In addition to citing the general contractor and trade
subcontractors, the Secretary also issued a citation alleging deficiencies in the metal
decking to Briggs Associates, a second consulting engineering company having a separate
contract directly with the building owner to perform inspection and testing services at
the site. Significantly, however, the Secretary did not allege that Briggs failed to
comply with the construction standards in Subpart Q but rather alleged that Briggs
violated section 5(a)(1) of the Act, the so-called "general duty clause," which
requires that an employer "furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing or are likely to cause
death or serious physical harm to his employees." The fact that the Secretary cited
SGH under the construction standards in Part 1926 but did not rely on those standards when
citing another engineering firm performing essentially similar duties supports the
conclusion that the Secretary lacks a coherent theory for the allocation of responsibility
for the hazardous working conditions at this site.[]
As discussed previously, the interpretation the
Secretary advances here also is not consistent with, and indeed is contrary to, her
position in other rulemaking actions, specifically her adoption in Subpart Q of section
1926.32, a definition provision under the CSA standards, and her comments in finding a
limited role for design and architectural professionals when she promulgated her
amendments to that Subpart. Furthermore, whereas the Secretary now contends that the
definition provisions set forth or incorporated in the Part 1926 standards are not
relevant in determining the scope of the substantive construction standards under the Act,
she made precisely the opposite argument in her submissions to both the Sixth Circuit and
the Commission in other cases. While we do not mean to suggest that an agency is not free
to change its enforcement practices or policies, it cannot do so without providing an
explanation for the modification with a "sufficient clarity of analysis" Public
Interest Research Group v. FCC, 522 F.2d 1060, 1065-66 (1st Cir. 1975), cert. denied, 424
U.S. 965 (1976). As we stated in American Cyanamid,15 BNA OSHC at 1504, 1992 CCH OSHD at
p. 40,067 (quoting Greater Boston Television Corp. v. FCC. 444 F.2d 841, 352 (D.C. Cir.
1970), cert. denied, 403 U.S. 923 (1971)), the Secretary must present "a reasoned
analysis indicating that prior policies and standards are being deliberately changed, not
casually ignored." In American Cyanamid, in addressing a situation similar to that
here, we rejected as not entitled to deference an interpretation advanced by the Secretary
that was inconsistent with a position the Secretary had previously taken. Indeed, the
Secretary's contention that the definition provisions of Part 1926 do not limit the
application of the construction standards is precisely the same position that the court
explicitly rejected in Cardinal Industries and subsequently in Cleveland Electric. 910
F.2d at 1336. We are not compelled to defer to an interpretation which is directly
contrary to a dispositive judicial precedent on the point in question where the agency
fails to offer any explanation for the inconsistency." [] See Chamber of
Commerce, 636 F.2d at 468-69. We note that in an analogous situation dealing with the
construction of statutory language to form a coherent and consistent whole, Justice Scalia
recently spoke in favor of "a neutral and rational interpretive methodology ... so
that the symbol of [the adjudicative] profession may remain the scales, not the
see-saw." Patterson v. Schumate, 112 S. Ct. 2242, 2251 (1992) (concurring opinion).
We find the Justice's comment equally apt here.
V. APPLICATION OF THE "SUBSTANTIAL
Accordingly,for the reasons we have stated, we conclude that the construction standards in Part 1926 are applicable to employers who perform no physical trade labor, such as SGH, only to the extent that such employers have actual and direct responsibility for the specific working conditions at the jobsite and for any hazards resulting from the actions of any trade contractor. As our discussion indicates, such responsibility may be conferred either through the customary overall supervisory authority normally exercised by construction managers and general contractors or through the creation of or control over a particular hazardous condition. In this case, there is no contention that SGH had overall supervisory authority at the site such as that exercised by the construction managers at issue in Bechtel and Bertrand Goldberg. SGH and the Secretary disagree, however, on whether and, if so, to what extent SGH created or controlled the hazardous conditions at issue.
As previously indicated, this case is before us on Judge De Benedetto's order granting SGH's motion for summary judgement. In support of their respective positions on the motion, both parties relied on portions of a deposition of SGH's supervisor, Paul L. Kelley, taken by the Secretary and a deposition of Dwight Larry "Butch" Mitchell, superintendent for the general contractor, taken by SGH. In his deposition, Kelley testified that Mitchell telephoned him on December 13, 1988, the day of the accident. At that time, Kelley was in SGH's office in Arlington, Massachusetts, some distance from the jobsite. [] Mitchell advised Kelley of his plans for the concrete pour. According to Kelley,
He said that he was also going to place the insulated slabs in the same day.
And I said, why are you going to do that?
He said, well, I've got everybody here, we can get it over with quick.
I was -- I didn't know what was bothering me about it, but --
The substance [of the conversation] was that I
thought that I might have some trouble with placing the insulation of the concrete on the
wet concrete of the first pour, and we talked about that.
Butch said something about, what about the concrete
And I said that if you let the concrete set so you
can walk on it, you should be able to place the insulation and the topping concrete on it.
And I think I said, you should have no -- if you can
wait enough time for the first concrete to set, you should have no trouble walking on it
and setting the insulation and the other concrete.
That was the end of the discussion.
Mitchell testified in his deposition that he decided
to call Kelley after he noticed deflection, or bending, in the metal decking following a
concrete pour. He was concerned about what might happen in another area of the structure
where a thicker layer of concrete was to be poured. He stated as follows:
I told him [Kelley] that we had noticed some
deflection in the deck on level two underneath and in the areas that we had noticed it,
and he asked how much, and I told him it seemed you know, looking up, it's very hard to
tell the amount of deflection. You can tell that there is deflection, but I told him it
seemed to me like three eighths, half inch, and he said that he did some calculations. He
said, Wait a minute, and he said that seemed to be normal. He didn't see a problem with
it. I then mentioned about the front of the building where it was thicker, the two pours,
one pour, put the styrofoam in it, and he said, How do you propose putting this styrofoam
in? And I told him we had proposed pouring the first four and three quarters inches,
floating that out, and then I would have the cement finishers going down at column line
one and C2 and start and work their way back towards that same area again. In the
meantime, I would put the three inches of styrofoam in there. It would take them
approximately two and a half to three hours to get back and put the top cement on, and he
thought for a minute and he said, No, I don't see any problem with it, and that's the way
He told me he saw no problem with it, and I felt
assured that it was all safe to just go ahead as we had planned on doing, proceeded.
Mitchell also testified that he kept a daily job log of the project. At his deposition, he read into the record the following statement from his log: "[asked him about the pour on column line 8B being four inches then three inches on top of the insulation, if it looked ok to him. He said there should be no problem." However, Mitchell conceded that "when [he] had the conversation with Mr. Kelley on the 13th...there [was no] discussion about shoring at the collapsed area."
After speaking with Kelley, Mitchell instructed the
foreman for the concrete contractor to lay the first 4 3/4-inch layer, pour concrete in
another area while Mitchell and some other employees installed the styrofoam, and then
return to lay the 3-inch top layer after Mitchell finished. It was this portion of the
structure which then collapsed.
Kelley also testified that he prepared the
specifications for the metal decking. These specifications require that the decking
contractor submit "shop drawings," [] which among other things must indicate
"the size and location of deck supports" and "locations where shoring of
metal deck is required." Kelley himself did not specify where shoring should be
placed, because it was not his responsibility to do so, except that Kelley did make
notations on the shop drawings that shoring was needed at the elevator opening. He
On the elevator opening, until -- elevators vary in
size. In general, the way a job will go, the architect knows how many people he's trying
to handle and at what speed he's trying to handle them. So there may be several different
elevator manufacturers that will meet the specifications for that....
Each one of them has small differences in the size of
the elevator shaft. Now, depending upon the size of the elevator shaft, that will
determine what the span of the piece of deck is in front of the elevator shaft.
At the time we reviewed the drawings, we did not know
what the final size of the elevator shaft would be. And depending on whether it moved a
couple of inches either way, would be either within the shoring tolerances of the drawing
or outside of them.
So I thought it would be wise to just require shoring
there regardless, so in case the dimension changed after our review of the drawings, it
would be covered.
When the drawings came in for review, that's what I saw as the time to mark it on, because I was not going to see those drawings again.
In support of its motion, SGH also presented an
affidavit from David M. Berg, an engineer registered in Massachusetts who specializes in
structural engineering..[] Berg stated that he had reviewed the depositions, SGH's
agreement with the architect, the General Conditions of the Contract for Construction, the
shop drawings prepared by the decking contractor, and notes of meetings regarding the job
progress.[] In his opinion, because of "the local condition of loss of continuity
of the deck as it was a single span condition," it was necessary for SGH to mark
shoring on the shop drawings at this location. Therefore, SGH did not exceed the scope of
its contract in showing this area of shoring and did not assume the responsibility of
determining all shoring requirements for the decking because shoring is the responsibility
of the general contractor. Furthermore, even if Kelley did discuss deflection of the
decking with Mitchell, Berg opined that such a conversation also would not be inconsistent
with SGH's contractual responsibilities.
As Judge DeBenedetto noted in his order granting
SGH's motion, the Secretary conceded that SGH did not have contractual responsibility for
formwork. Rather, the Secretary argued before the judge that the telephone conversation
between Kelley and Mitchell and Kelley's marking of shoring locations on the shop drawings
not only exceeded SGH's contract but also were sufficient to bring it within the scope of
the construction standards. Relying on Berg's affidavit, the judge rejected the
Secretary's contention that Kelley's actions went beyond the normal and customary duties
performed by design engineers. The judge further found that the single telephone
conversation between Kelley and Mitchell regarding the proposed concrete pour did not
establish that SGH exercised control over the conditions of the formwork at issue or that
Francis Harvey, the general contractor, designed and installed the formwork under SGH's
We concur with the judge. The criterion for review of
a grant of summary judgment is whether there is any issue of fact pertinent to the ruling.
Deukmejian v. USPS, 734 F.2d 460, 462 (9th Cir. 1984); Bloomgarden v. Coyer, 479 F.2d 201,
206-07 (D.C. Cir. 1973). Even construing the limited record before us in the light most
favorable to the Secretary, we conclude that SGH was not shown to have created or
controlled the hazardous conditions at issue here and that further evidentiary proceedings
therefore are not required.
The Secretary contends that SGH was responsible for
the hazards resulting from the concrete pour because Mitchell, having misgivings about
whether he could complete the double pour in one day, received and relied on assurances
from Kelley that the operation would be safe and that the amount of deflection was within
proper limits. Mitchell's testimony, however, makes clear that he or his employer, Francis
Harvey, the general contractor, devised the procedure for conducting the concrete pour and
that Kelley merely confirmed the sequence and plan Mitchell or Francis Harvey proposed. It
is also apparent from Mitchell's testimony that Kelley did not instruct Mitchell to start
the pour; rather, Mitchell made the decision to commence pouring. Plainly, Kelley, who was
riot even on the site, was not in a position to order that the pour start or, for that
matter, to stop it once it had started, nor did he oversee the trade contractors during
the pour. Furthermore, acceptance of the Secretary's argument would require us to conclude
that Mitchell would not have commenced the pour if he had not spoken to Kelley regarding
it. Such a conclusion would be mere speculation on the record here. Lastly, as the judge
found, Berg's affidavit establishes that SGH (lid not assume substantial supervisory
authority over either the adequacy or the placement of shoring simply because Kelley
marked several shoring locations around the elevator shaft.
Accordingly, we conclude that Judge DeBenedetto acted
properly in granting summary judgement in favor of SGH, and we affirm his ruling vacating
the citations issued to SGH.
Edwin G. Foulke, Jr. Chairman
Donald G. Wiseman
Dated: August 28, 1992
SECRETARY OF LABOR
SIMPSON, GUMPERTZ & HEGER, INC, Respondent.
Docket No. 89-1300
ORDER ENTERED UPON MOTION FOR SUMMARY
Simpson, Gumpertz & Heger, Inc. (SGH), has moved
for summary judgment under Rule 56, Fed. R. Civ. P., on the ground that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law.
SGH was cited on March 13, 1989, for alleged serious
violations of the construction safety standards at 29 C.F.R. §§ 1926.703(a)(1) and
(a)(2) dealing with the requirements for cast-in-place concrete:
(a) General requirements for formwork. (1) Formwork
shall be designed, fabricated, erected, supported, braced and maintained so that it will
be capable of supporting without failure all vertical and lateral loads that may
reasonably be anticipated to be applied to the formwork....
(2) Drawings or plans, including all revisions, for
the jack layout, formwork (including shoring equipment), working decks, and scaffolds,
shall be available at the jobsite.
The single issue in this case is whether SGH, a
structural engineering firm, can be held liable under the OSH Act for alleged substandard
conditions to which its employees were not exposed, and for which it was not responsible
under its contractual duties. The conflict in this case turns on the legal consequences of
In June 1987, SGH entered into an agreement with
Payette Associates, Inc., and architectural firm, to perform certain structural
engineering services in connection with construction of a building at the Worcester
Polytechnic Institute. A portion of the metal decking collapsed in December 1988, causing
injuries to five employees of a subcontractor while they were engaged in pouring concrete
on the metal decking.
While conceding that SGH was not contractually
responsible for the design, fabrication, or maintenance of the formwork [[1/]] on the
construction project in question, the Secretary contends that SGH's project manager, Paul
Kelley, exceeded the terns of its contractual obligations by marking up shop drawings
indicating shoring was necessary in one area, and that giving such "advice on the
means and methods of construction on which Francis Harvey, the general contractor, relied.
. . makes SGH an employer engaged in construction within the meaning of the OSH Act."
Secretary's opposition memorandum at 3.
The Secretary also argues that SGH "created the
hazardous work area" (and thereby had engaged in construction work) as a consequence
of a telephone conversation between the general contractor's supervisor, Dwight Mitchell,
and SGH's project manager, Paul Kelley, when Mitchell sought the latter's advise on a
particular occasion regarding the pouring of concrete. Deposition of Dwight Mitchell at
Q. Did you go back down to the trailer to call Paul
Q. And did you reach him in the office?
Q. And what discussion did you have with Paul Kelley
at that time?
A. I told him that we had noticed some deflection in
the deck on level two underneath and in the areas that we had noticed it, and he asked how
much, and I told him it seemed--you know, looking up, it's very hard to tell the amount of
deflection. You can tell that there is deflection, but I told him it looked to me like
three eights, half inch, and he said that -- he did some calculations. He said, Wait a
minute, and he said that seemed to be normal. He didn't see a problem with it. I then
mentioned about the front of the building where it was thicker, the two pours, one pour,
put the styrofoam in it, and he said, How do you propose putting this styrofoam in? And I
told him we had proposed pouring the first four and three-quarters inches, floating that
out, and then I would have the cement finishers going down at column line one and C2 and
start and work their way back towards that same area again. In the meantime, I would put
the three inches of styrofoam in there. It would take them approximately two and a half to
three hours to get back and put the top cement on, and he thought for a minute and he
said, No, I don't see any problem with it, and that's the way we proceeded.
The Secretary relies on the principles expounded in Brennan v. OSHRC
(Underhill Construction Corp), 513 F.2d 1032, 1038 (2d Cir. 1975) and in Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD ¶20,690 (Nos. 3694 & 44091, 1976): In multi-employer construction worksite cases, an employer who either created the hazardous condition or was in control of an area and responsible for its maintenance may be liable under the OSH Act when it is shown that a hazard has been committed and that the area of the hazard was accessible to the employees of the cited employer or those of other employers engaged in a common undertaking.
The Secretary's arguments are flawed in several
respects. The uncontradicted affidavit of David Berg, a structural engineer, discloses
that the single area of shoring shown on the shop drawing that was specified by SGH was
due to a local condition of loss of continuity of the deck, a specification that was
within the scope of the structural engineering services to be performed by SGH pursuant to
its written agreement with the architect. Moreover, there is no evidence whatsoever to
suggest that SGH took over the responsibility of the general contractor for the formwork
on the project. A single telephone conversation between SGH's project manager And the
general contractor's supervisor initiated by the latter in seeking advise under the most
casual of circumstances, regarding a proposed pouring of concrete does not tend to
establish that SGH exercised control with regard to the formwork that is the subject of
the citation, or that the general contractor designed or constructed the formwork, for
which it was contractually responsible, under the direction of SGH.
In Skidmore,Owings & Merrill, 5 BNA OSHC 1762, 1764, 1977 CCH OSHD ¶21,143 (No. 2165, 1977), the Commission held that an architectural and engineering firm which has only limited functions and authority over construction work is not subject to the standards prescribed in Part 1926. That principle is precisely applicable here. Accordingly, it is
ORDERED that SGH's notion for summary judgment is
granted, and the two-item citation issued on March 13, 1989, is vacated.
RICHARD DeBENEDETTO Judge, OSHRC
Dated: March 19, 1991
[] The cited standards require as follows:
§ 1926.703 Requirements for cast-in-place concrete.
(a) General requirements for formwork (1) Formwork
shall be designed, fabricated, erected, supported, braced and maintained so that it will
be capable of supporting without failure all vertical and horizontal loads that may
reasonably be anticipated to be applied to the formwork. Formwork which is designed,
fabricated, erected, supported, braced and maintained in conformance with the Appendix to
this section [referencing ANSI A10.9-1983, Construction and Demolition Operations-Concrete
and Masonry Work] will be deemed to meet the requirements of this paragraph.
(2) Drawings or plans, including all revisions, for
the jack layout. formwork (including shoring equipment), working decks, and scaffolds
shall be available at the jobsite.
"Formwork" is defined at section 1926.700(b)(2) as "the total system of support for freshly placed or partially cured concrete. including the mold or sheeting (form) that is in contact with the concrete as well as all supporting members including shores, reshores, hardware, braces, and related hardware." In other words. the standards in section 1926.703 at issue include both the metal decking and any supporting shoring.
[] Although at oral argument SGH's coursed pointed
out that the Secretary's contention that design and professionals are per se engaged in
construction work was rot raised before the judge, neither SGH nor the amici curiae assert
that the Commission not consider the Secretary's argument.
[] As previously indicated, Judge DeBenedetto
decided this case on SGH's motion for summary judgment. There has been no formal admission
of documents into the record. The Secretary. however, does not challenge the contracts
attached as exhibits to SGH's memorandum in support of its motion.
[] Generally speaking, SGH performed these duties
as an assistant or advisor to the architect, Payette, as indicated by the provisions of
the contract dealing with SGH's approval of the work performed by the trade contractors:
1.2.12 The Engineer shall visit the site at intervals appropriate to the stage of construction...or as otherwise agreed with the Architect in writing, to become generally familiar with the progress and quality of the Work...and to determine in general if such Work is proceeding in accordance with the Contract Documents. However, the Engineer shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work...On the basis of such on-site observations as an engineer, the Engineer shall keep the Architect informed of the progress and quality of the Work...and shall endeavor to guard the Owner against defects and deficiencies in such Work of the Contractor.
1.2.15 The Engineer, based on observations at the
site and on evaluations of the Contractor's Applications for Payment, shall assist the
Architect in determining the amounts owing to the Contractor...and shall certify such
amounts to the Architect...
1.2.16 Certification by the Engineer to the Architect of an amount owing to the Contractor shall constitute a representation by the Engineer to the Architect that, based on the Engineer's observations at the site as provided in Subparagraph 1.2.12 and the date comprising the Contractor's Application for Payment, the Work...has progressed to the point indicated; that to the best of the Engineer's knowledge, information and belief, the quality of such Work is in accordance with the contract documents (subject to an evaluation of such Work for conformance with the Contract Documents upon Substantial Completion, to the results of any subsequent tests required by or performed under the Contract Documents, to minor deviations from the Contract Documents correctable prior to completion, and to any specific qualifications stated by the Engineer); and that the Contractor is entitled to payment in the amount certified.
1.2.22 The Engineer shall assist the Architect in conduction inspections ... to determine the dates of Substantial Compliance and final completion and shall review and approve, or take other appropriate action on, the Contractor's list of items to be completed or corrected and shall forward the list to the Architect for final disposition. The Engineer shall assist the Architect in receiving and forwarding to the Owner for the Owner's review written warranties and related documents required by the Contract Documents and assembled by the Contractor .... If requested, the Engineer shall issue to the Architect a final certificate in writing with respect to final payment . . . .
[] Section 6(a) of the OSH Act, .29 U.S.C. §
655(a), authorized the Secretary, within two years from the effective date of the Act to
promulgate occupational safety and health standards enforceable under the Act by adopting
"any established Federal standard." The term "established Federal
standard" is defined as "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), 29
U.S.C § 652(10)
The CSA standards, originally codified as 29 C.F.R. part 1518, were promulgated on April 17, 1971, 36 Fed. Reg 7340(1971), and were adopted and/or the OSH Act by 29 CFR § 1910.12 on May 29,1971 36 Fed. Reg. 10,466, 10,469 (1971). They were redesignated as part 1992 on December 30, 1971. 36 Fed. Reg. 25,232 (1971)
[] The association with construction craft labor
originates section 1926.32(i), which defines "employee" as
every laborer or mechanic under the [CSA] regardless of the contractual relationship which may be alleged to exist between the laborer and mechanic and the contractor or subcontractor who engaged him. "Laborer and mechanic" are not defined in the [CSA], but the identical terms are used in the Davis-Bacon Act .... The use of the same term in a statute which often applies concurrently with section 107 of the [CSA] has considerable precedential value in ascertaining the meaning of "laborer and mechanic" as used in the [CSA]. "Laborer" generally means one who performs manual labor or who labors at an occupation requiring physical strength, "mechanic" generally means a worker skilled with tools."
"Employer" is defined a section 1926,32(j) to mean a "contractor or subcontractor" within the meaning of the [CSA] and of this part"; that is, 3 contractor who employs or "engages" laborers and mechanics.
29 CFR § 2(m), a regulation implementing the Davis-Bacon Act, states that the term "laborer or mechanic" "does not apply to workers whose duties are primarily administrative, executive, or clerical, rather than manual" and that "persons employed in a bonafide executive, administrative, or professional capacity as defined in part 541 of this title are not declared to be laborers of mechanics" Section 541.302(a), a regulation promulgated by the Secretary under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219, address employees "employed in a bonafide professional capacity" It defines "learned professions" as requiring knowledge of an advanced type in a field of science of learning customarily acquired by a prolonged specialized intellectual instruction and study as distinguished from...training in the performance of mental, manual, or physical processes." Section 541.302(c)(1) expressly includes "engineering" and is professional which meet the requirement for a prolonged coarse of specialized intellectual construction and study."
[] In Bechtel, the Commission noted that the
Secretary purported to limit the extent of incorporation of the CSA standards by section
1910.12(c), which provides as follows:
(c) Construction Safety Act distinguished. This section adopts as occupational safety and health standards under section 6 of the Act the standards which are prescribed in part 1926....Thus, the standards (substantive rules) published in subpart C and the following subparts of part 1926...are applied. This section does not incorporate subparts A and B of part 1926....Subparts A and B have pertinence only to the application of section 107 of [the CSA]. For example, the interpretation of the term "subcontractor" in paragraph (c) of § 1926.13 of this chapter is significant in discerning the coverage of [the CSA] and the duties thereunder. However, the term "subcontractor" has no significance in the application of the Act, which was enacted under the Commerce clause and which establishes duties for "employers" which are not dependent for their application upon any contractual relationship with the Federal Government or upon any form of Federal financial assistance.
The Commission also noted a more general limitation
on the incorporation of standards promulgated under other statutes.
It bears emphasis that only standards (i.e.,
substantive rules) relating to safety or health we adopted by any incorporations by
reference of standards prescribed elsewhere in this chapter or this title.... [T]he
incorporation by reference of part 1926 in § 1910.12 is not intended to include
references to interpretative rules having relevance to the application of the [CSA], but
having no relevance to the application [of the OSH Act].
Section 1910.11(b). Based on these provisions, the
Bechtel decision held that [a]ny references to contractors subcontractors, laborers, or
mechanics in Part 1926 are interpretative rules not adopted by the Secretary and have no
force and effect under OSHA." 4 BNA OSHC at 1008, 1975-77 CCH OSHD at p. 24,500
Section 1910.12(c) and section 1910.11(b), however,
provide only that regulations bearing on the scope of the CSA itself are not incorporated
under the OSH Act. They are thus consistent with the principle that the OSH Act applies to
a larger class of employers than the CSA. As the court in Cardinal Industries stated,
"[t]he limitation thus placed by the Secretary on the incorporation of ... Part 1926
does not detract, however, from [the] conclusion that section 1910.12(b) must be
interpreted in accordance with section 1926.13." 828 F.2d at 377 n.7. Accordingly,
section 1910.12(c) and section 1910.11(b) do not affect our view that the definition
provisions of the CSA standards may be applied to determine the kinds of work activities
that are covered by the substantive construction standards, as opposed to the scope of the
CSA itself. To the tent Bechtel may suggest the contrary, that decision is overbroad.
[] See supra note 6. In addition to
"employee," Subpart Q uses several other terms which are defined in section
1926.32, including shall, "qualified," and in one instance "ANSI," the
abbreviation for the American National Standards Institute. "Employee," however,
is used repeatedly throughout Subpart Q.
[] There is no indication that the construction
project in this case was a lift-slab operation. The amendments to the lift-slab
regulations, moreover, were promulgated after this case arose. Nevertheless, the comments
the Secretary made with regard to lift-slab operations reflect the same conclusions
regarding the allocation of responsibility for safe working conditions that the Secretary
stated in her previous amendment of the Subpart Q standards. See Bay State Ref. Co, 15 BNA
OSHC 1471, 1475 n.5, 1992 CCH OSHD ¶29,579, p. 40,024 n.5 (No. 88,1731, 1992) (reliance
on rulemaking which postdates the citations when it confirms earlier pronouncements by the
Secretary and therefore establishes a consistent and repeated policy position).
[] Francis Harvey and Worcester Steel filed
notices of contest, which were docketed in the Commission as Docket No. 89-1208 and Docket
No. 89-1206 respectively. Francis Harvery and the Secretary agreed to a settlement under
which one citation item was withdrawn and the rest affirmed. Worcester Steel is still
pending before the Commission. D & M Concrete did not file a notice of contest but
entered into an informal agreement with the Secretary under which it waived its right to
contest in exchange for a reduction in the penalty.
[] This standard reads.
§ 1926.20 General safety and health provisions.
(b) Accident prevention responsibilities. (1) It
shall be the responsibility of the employer to initiate and maintain such programs as may
be necessary to comply with this part
(2)Such programs shall provide for frequent and
regular inspections of the job sites, materials, and equipment to he made by competent
persons designated by the employers.
[]ln its brief before us. SGH avers that the
citation issued in this case constitutes the Secretary's "initial means" for
expressing a position contrary to our holding in SOM; that is, SGH asserts that until the
present case, the Secretary had acquiesced in SOM. In her reply brief the Secretary
contends that she has consistently maintained that "design and service
professionals" are engaged in construction work because of their basic involvement
with a construction project, and she cites Bertrand Goldberg. That case, however, involved
a construction manager. As previously discussed. the Commission in SOM distinguished the
functions performed by a construction manager from those of a design or consulting
engineer based on the extent of supervisory authority over the worksite. Accordingly, the
issuance of citations to professionals such as SGH and not citations to construction
managers determines the consistency of the Secretary's position with respect to the
question in this case.
At oral argument, counsel for the Secretary was asked
whether the Secretary had issued citations to other professional engineers or consulting
firms under construction standards after the SOM decision. Counsel replied that she did
not have sufficient information to answer that question. We assume that in view of the
significance of the question presented here, citations issued to other design or engineer
professionals would have been contested, and the Commission would have a record of such a
[]An interpretative rule under the APA is one
"which merely clarif[ies] of explain[s] existing law of regulations"; it is
"what the administrative officer thinks the statute or regulation means."
Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir. 1984); Gibson Wine Co. v. Snyder, 194 F.24
329, 331 (D.C Cir. 1952). Arguably the Secretary's position can be construed as a
statement of the Secretary's understandings of the meaning of the term "construction
work" sufficient to fall within the generally accepted definition of an
interpretative rule under the APA. rather than a substantive amendment of Pan 1926, It is
unnecessary, however, for us to decide precisely how to characterize the Secretary's
approach in this litigation because we conclude that notice and comment rulemaking is
required regardless of the label affixed to the Secretary's position. See Thompson v.
Washington, 497 F.2d 626 (D.C. Cir.1973) (right of tenants to be heard during the process
of fixing reats by public housing agencies, while not expressly provided by statute is
implied); Independent Broker-Dealers Trade Assn v. SEC, 442 F.2d 132, 144 (D.C. Cir.).
cert. denied, 404 U.S. 828 (1971) (a "reasonable opportunity...for submission of
views by those materially affected" is required to ensure "elementary fairness);
2 Davis Administrative Law Treatise § 7:16-:17 (2d ed. 1979) (addressing the proposition
that any rule having a substantial impact must he issued through notice and comment
rulemaking even it the rule is property characterized as an interpretation). Set also
Phoenix Forging Co., 12 BNA OSHC 1317, 1984-85 CCH OSHD ¶27,256 (No.82-398,1985) (finding
notice and comment not required for issuance of a directive by the Secretary that does not
have a significant impact on those subject to inspection under the Act).
We note that in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 549 (1978), the Supreme Court held that reviewing courts may not impose on agencies procedural requirements beyond those prescribed In 5 U.S.C. § 553. The Secretary does not contend that the Court's decision precludes us from holding that notice and comment rulemaking is required in the circumstances here; indeed, none of the parties address Vermont Yankee in their briefs or argument In any event. Vermont Yankee is promised on agency compliance with the minimal rulemaking procedures set forth in the APA; it does not free agencies. from obligation to give notice and an opportunity to be heard to those affected by agency action having a substantial impact on them. Air Transp. Assn. of America v. DOT, 900 F.2d 369, 378 n.13 (D.C. Cir. 1990): Batterton v. Marshall, 648 F.2d 694, 708-10 & nn.83 & 88 (D.C. Cir. 1980); Davis, § 7:19.
[] Section (5)(a)(1) of the Act by its terms
imposes a duty on an employer to protect only its own employees; under this section, an
employer is not liable for the exposure to hazards of employees of other employers.
Ponsco Constru., Co., 10 BNA OSHC 1576, 1577, n.3, 1982 CCH OSHD ¶26, 023, p. 32, 665 n.3
(No. 79-3153, 1982). Thus, the Secretary could only have cited Briggs under section
5(a)(1) if Briggs had employees exposed to the conditions that were subject of its
citation. However, the fact that section 5 (a)(1) in general may have been applicable to
Briggs would not have precluded the Secretary from citing Briggs under the construction
standards if she concluded, as she did in the case of SGH, that design and consulting
engineers are subject to the specific construction standards.
[] The Secretary contends in her reply brief that
her argument before the Sixth Circuit in Cardinal Industries is not inconsistent with her
position here because Cardinal Industries involved a manufacturer of prefabricated housing
units in a facility removed from a construction site rather than, as here, an employer
having some relationship with a specific construction project. We recognize that in
Cardinal Industries the Secretary sought to establish that the construction standards
cannot be applied to work activities lacking a geographical connection with a construction
site and that such a concern does not arise in this case. Nevertheless, the Secretary
plainly took the position before the Sixth Circuit that the definition provisions stated
or referred to in Part 1926 are relevant and indeed dispositive with respect to the kinds
of work activities covered under Part 1926. In the case before us here the Secretary's
interpretation does not purport to offer any explanation of the definitional provisions:
rather, she simply ask that we disregard them entirely. Therefore, we conclude that the
Secretary has failed to establish a consistent enforcement position within the meaning of
[] Pursuant to SGH's contractual responsibility,
Kelley had visited the job site on December 8, 1988, five days prior to the accident. A
copy of his inspection report, submitted in response to the Secretary's interrogatories,
indicates that he gave some instructions to Mitchell. For example, he directed Mitchell to
install additional reinforcing rods and to replace broken or missing studs and dowels.
Kelley testified that on the day preceding the accident, December 12, he attempted to
telephone Mitchell to make sure that Mitchell had corrected the problems he had noted on
his visit of December 8. He was unable to reach Mitchell, but Mitchell returned his call
on December 13.
The Secretary does not contend that Kelley's instructions to Mitchell following his on-site visits constitute supervision over the performance of actual construction work as opposed to ensuring compliance with design specifications. We conclude that such instructions are characteristic of lack of supervision over construction work inasmuch as it appears that Kelley simply advised Mitchell of what work needed to be performed but did not instruct Mitchell how to perform that work.
[]"Shop drawings" are defined in the
standard form construction contract as "drawings, diagrams, schedules and other data
specially prepared for the Work by the Contractor or any Subcontractor, manufacturer,
supplier or distributor to illustrate some portion of the work." General Conditions
of the Contract for Construction. Article 4 12.1.
[] Commission Rule 61 incorporates by reference
Fed. R. Civ. P. 56, which governs summary judgment. Under the Federal rule, affidavits may
be used in support of or in opposition to motions for summary judgment. In opposing SGH's
motion for summary judgment, the Secretary introduced an affidavit from H. Berrien
Zettler, Deputy Director, Directorate of Compliance Programs, setting forth circumstances
under which a design engineer may be held responsible under the construction standards.
Before the judge, SGH argued that Zettler's affidavit should be stricken because it did
not comply with the requirements of Federal Rule 56(e) that affidavits should be based on
personal knowledge and set forth specific factual matter. In his decision granting summary
judgment in favor of SGH, Judge DeBenedetto did not mention the Zettler affidavit, and the
Secretary does not cite to it in her briefs or at oral argument before us.
[] The shop drawings themselves are not in the
record. It is unclear whether by "notes of progress meetings" Berg was referring
to the reports of on-site visits made by Kelley and another representative of SGH, Gregg
[[1/]]"Formwork" is defined by 29 C.F.R. §
The total system of support for freshly placed concrete, including the mold or sheathing which contacts the concrete as well as all supporting members, hardware, and necessary bracing.