PERINI CORPORATION

OSHRC Docket No. 11007

Occupational Safety and Health Review Commission

June 29, 1977

[*1]

Before BARNAKO, Chairman and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert Ross, Regional Solicitor

Skip O. Warren, Vice Pres. & Counsel, Construction Affairs, Perini Corporation, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On January 20, 1976, Administrative Law Judge David J. Knight held respondent, Perini Corp., in violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"] for failure to comply with the safety standard published at 29 CFR 1926.605(d)(3). n1

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n1 1926.605 Marine operations and equipment.

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(d) First-aid and lifesaving equipment.

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(3) Employees walking or working on the unguarded decks of barges shall be protected with U.S. Coast Guard - approved work vests or buoyant vests.

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On February 5, 1976, former Commissioner Moran issued a direction for review that listed no specific issues. In response to the direction, however, respondent has filed a brief [*2] taking several exceptions to the Judge's decision. No brief has been filed by the Secretary. Because respondent has indicated an interest in this case, we will address the issues raised in its brief. Policy Statement, 41 Fed. Reg. 53015 (December 3, 1976). See Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1967).

The issues raised by respondent's brief are summarized as follows:

(1) Whether the Judge erred in concluding that respondent's activities on the day of inspection constituted construction rather than longshoring work?

(2) Whether the Judge erred by denying respondent's request for access to the Secretary's records for purposes of trial preparation?

(3) Whether the Judge erred by directing that the hearing proceed after a representation by respondent that a new matter had come to light materially affecting respondent's ability to proceed?

I.

In October 1974, respondent's employees were laying rip-rap n2 along the shoreline and riverbed of the Mystic River at Everett, Massachusetts. The employees were accomplishing their task from a barge anchored in 24 feet of water. The barge was 30 feet wide, 85 feet long, and was equipped [*3] with a crane. The sides of the barge were unguarded.

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n2 This operation consists of placing large rocks along the shoreline and riverbed to prevent soil erosion.

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The crew consisted of five employees: the foreman, two dock workers, the crane operator, and his oiler. The off-loading of the rip-rap was performed by the crane operator. The oiler's duties were to keep the crane lubricated and to service the vessel's compressors. The remaining three crewmen were responsible for keeping the barge in the proper location. This job was accomplished by maneuvering lines and winches, which required movement about the deck. No employee was wearing a flotation device.

In addition to laying rip-rap, the crew assisted a diver and his tender who were cutting two ten-foot diameter holes in a steel bulkhead under water. The crew gathered tools and equipment required by the diver and handed them to the tender, who worked from a boat tied alongside the barge. The tender in turn handed the tools to the diver. The crane aboard [*4] the barge was used to lift the cut metal sections from the water to the rock scow. The crew also assisted the diver by coiling hoses and lines and by transferring his equipment to the shore.

On the basis of these facts, respondent was issued a citation alleging a violation of section 5(a)(2) of the Act for failure to comply with the safety standard published at 29 CFR 1926.605(d)(3). A penalty of $110 was proposed by the Secretary.

In his decision, Judge Knight concluded that the laying of rip-rap was construction work subject to the requirements of 1926.605(d)(3), rather than longshoring activity under 1918.106(c). n3 Moreover, he held that the employees aiding the diver were also engaged in "construction work" as defined at 1910.12(b). n4 The Judge rejected respondent's argument that the standards at 1926.605(d)(3) and 1918.106(c) are in conflict, rendering the cited standard unconstitutionally vague and unenforceable. He reasoned that, although there is some duplication of regulation, the construction standards are applicable when the work being performed extends beyond mere material handling and includes construction work performed from a barge.

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n3 1918.106 Protection against drowning.

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(c) Except when engaged in loading or discharging ocean going vessels, employees walking or working on the decks of barges on the Mississippi River System and the Gulf Intracoastal Waterway shall be protected by personal flotation devices meeting the requirements of 1918.106(a).

n4 1910.12 Construction work.

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(b) Definition. For purposes of this section, "construction work" means work for construction, alteration, and/or repair, including painting and decorating . . .

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On review before us, respondent contends that its employees were engaged in longshoring rather than construction activities and that, accordingly, the need for life saving equipment was regulated by 1918.106(c) rather than 1926.605(d)(3). We disagree.

The term "longshoring operations" is defined at 1926.605(a)(1) and 1918.3(h)(i) as follows:

1926.605 Marine operations and equipment.

(a) Material handling operations.

(1) Operations fitting the definition of "material handling" [*6] shall be performed in conformance with applicable requirements of Part 1918, "Safety and Health Regulations for Longshoring" of this chapter. The term "longshoring operations" means the loading, unloading, moving or handling of construction materials, equipment and supplies, etc. into, in, on, or out of any vessel from a fixed structure or shore-to-vessel, vessel-to-shore or fixed structure or vessel-to-vessel (emphasis added).

1918.3 Definitions.

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(h)

(i) The term "longshoring operations" means the loading, unloading, moving, or handling of cargo, ship's stores, gear, etc., into, in, on, or out of any vessel on the navigable waters of the United States (emphasis added).

In comparing 1926.605(a)(1) with 1918.3(h)(i) it is evident that only the handling of construction materials as cargo is governed by the safety and health regulations for longshoring. Construction work performed from vessels is not exempt from the applicable construction standards of Part 1926.

Moreover, respondent's activities extend beyond "material handling," the only operations excluded from coverage under the construction standards by 1926.605(a)(1). Respondent's primary [*7] objective on the site was not to handle cargo but to install rip-rap along the riverbank in order to prevent erosion.

In addition, we conclude that the work performed by the employees assisting the diver was also covered by the construction standards. The diver who was cutting holes in the bulkhead was clearly engaged in construction as defined at 1910.12(b). The employees who were assisting him were vital to the operation, and their activities were an integral part of the construction activity. n5

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n5 Respondent also objects to the Judge's consideration of its work rule, which requires the wearing of safety vests whenever there is a danger of drowning, as one of the bases upon which he found a violation. Our decision, however, is based solely upon our interpretation of the pertinent standards as they relate to the nature of respondent's work activities.

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Respondent further argues that the apparent conflict between the applicability of the construction and longshoring standards failed to adequately inform it of [*8] exactly what conduct was required and that, accordingly, the cited standard as applied is unenforceably vague. We are unpersuaded. There is reasonable notice that the laying of rip-rap from barges is a construction activity to which the cited standard applies. See Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974).

Respondent also argues that the diving operations were not regulated by the construction standards because the Secretary has not adopted standards applicable to diving operations. The argument lacks force. The Secretary's failure to adopt standards specifically applicable to diving operations is significant only in that it results in the construction activities associated with diving being regulated by more general construction standards. See United Telephone Company of the Carolinas, 4 BNA OSHC 1644, 1976-77 CCH OSHD para. 21,043 (No. 4210, 1976).

Finally, we note that respondent excepts to that portion of the Judge's holding that 1926.605(d)(3) was violated because several employees engaged in a dredging operation were not provided with safety vests. Without passing on the applicability of the cited standard to this operation, [*9] we note that these employees were aboard another vessel and that their activities were not the subject of the citation. Accordingly, that portion of the Judge's decision is reversed.

II.

Before hearing, respondent requested that the Secretary produce for inspection and copying various documents relating to the applicability of the cited standard to the type of work performed by respondent. Logs, notes, reports, and memoranda prepared by the compliance officer pursuant to the inspection were also requested. After the Secretary declined to honor the request, respondent filed a motion with the Judge "to compel production, inspection and copying of documents." Judge Knight denied respondent's motion.

Subsequent to the issuance of the Judge's order, respondent requested and received a subpoena duces tecum ordering the Area Director, John Fiatarone, to appear at the hearing and produce the following:

Logs, diaries, memoranda, opinions, findings, determinations, reports and other writings documenting your referral to and the response received by you from the Maritime Division employees of the Department of Labor concerning the question of applicability of the cited construction standard [*10] to the work of the seven employees involved herein, and which review, analyze and serve as the basis for your determinations necessary to the issuance of the citation involved.

The motion to compel production of documents encompassed the following five categories of material:

1. Logs, diaries, notes, reports, and memoranda prepared by OSHA Inspector Wesley Holbrook, prepared at and after his inspection of the work site involved in the referenced matter, including notes, diaries, memoranda, reports, and log entries pertaining to his interrogation of the seven employees mentioned in the applicable citation and complaint;

2. Logs, diaries, memoranda, reports and other writings documenting referral to and response by the Maritime Division employees of the Department of Labor concerning the question of applicability of the cited construction standard to the work of the seven employees aforementioned;

3. A memorandum believed dated February 6, 1974 by Mr. Ed March, revealed and shown to Respondent's representatives by Complainant's representatives during the course of an informal conference between the parties in the office of the Area Director on the morning of February 6, 1975; [*11]

4. Notes, diaries, logs, memoranda, opinions, findings and determinations of the Area Director, Mr. John Fiatarone, which review, analyze and serve as the basis for the determinations necessary to the issuance of the citation involved; and

5. Employment registers and records reflecting the names, present addresses, titles and/or occupational status of Maritime Division inspectors and enforcement officers presently employed under the jurisdiction of the Regional Director, Boston, including such information as it may pertain to former employees having served in such capacities, but who may have resigned, transferred, retired, or be otherwise absent from such positions within the past calendar year.

Complainant set forth three grounds for opposing respondent's motion to compel discovery. First, complainant contended that respondent's motion failed to indicate any compelling reasons requiring discovery under Commission rule 53, 29 CFR 2200.53. n6 Second, the Secretary argued that intra-agency communications and documents are privileged and not subject to discovery. Finally, it was contended that the compliance officer's notes were privileged under Fed. R. Civ. P. 26(b)(3) n7 [*12] as the work product of an attorney.

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n6 Commission rule 53 states:

(a) Except by special order of the Commission or the Judge, discovery depositions of parties, intervenors, or witnesses, and interrogatories directed to parties, intervenors, or witnesses shall not be allowed.

(b) In the event the Commission or the Judge grants an application for the conduct of such discovery proceedings, the order granting the same shall set forth appropriate time limits governing discovery.

Respondent's motion requested neither depositions nor interrogatories. The request was therefore beyond the scope of Commission rule 53 and is governed by the Federal Rules of Civil Procedure. See note 7 infra.

n7 The Federal Rules of Civil Procedure are made applicable to Commission proceedings by section 12(g) of the Act and Commission Rule of Procedure 2(b), 29 CFR 2200.2(b).

Fed. R. Civ. P. 26(b)(3) states in pertinent part that:

Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without under hardship to obtain the substantial equivalent of the materials by other means.

[*13]

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Although denying respondent's motion, Judge Knight apparently did not rely on the arguments set forth in the Secretary's memorandum in opposition to the motion. The Judge failed to assign reasons for his refusal to compel production of the materials included in category 1, but stated that if the inspector testified, complainant would be required to produce all notes relevant to the inspection.

The request for matter within categories 2, 4, and 5 was denied on the ground that "no substantial need has been shown for the production of these requested items and, as framed, the demand for these items borders too close to protected 'legal theory' [Fed. R. Civ. P. Rule 26(b)(3)] to permit discovery."

Judge Knight noted in reference to category 4, however, that if respondent should so request, the Area Director would be subpoenaed along with the documents sought. Finally, the Judge failed to rule on respondent's motion as it relates to category 3. It is clear, however, that the requested memorandum was not produced pursuant to the motion.

Respondent argues in its brief filed with the Commission that the [*14] failure of Judge Knight to grant respondent's motion for pre-trial discovery was error. It contends that, although the information sought was made available during the second and last day of the hearing, it had little opportunity to examine the information, and no opportunity to determine its requirements for additional witnesses.

A Judge's disposition of discovery matters is reversible only if the Judge's actions constitute an abuse of discretion resulting in substantial prejudice. ISI Corp. v. United States, 503 F.2d 558, 559 (9th Cir. 1974); Bell v. Swift & Co., 283 F.2d 407, 409 (5th Cir. 1960). As respondent concedes, all requested materials were made available during the second day of the hearing. At the close of the hearing, Judge Knight observed that respondent may have desired to call additional witnesses and adduce evidence relating to a possible difference of opinion among OSHA personnel concerning the applicability of the cited standard to respondent's activities. Accordingly, he indicated that if respondent so requested, he would order a further hearing to allow respondent an opportunity to present additional evidence. Respondent never availed itself of [*15] this opportunity. Moreover, although respondent makes a general assertion of prejudice, it has not indicated how it would have proceeded differently had the desired materials been made available. Under the circumstances, we find no basis upon which to conclude that there was any substantial prejudice even if we assume for the sake of argument that the Judge may have erred in whole or in part. Bell v. Swift & Co., supra at 409.

III.

Finally, respondent argues that the Judge erred by directing respondent to proceed at trial after it had indicated that a new matter had come to light materially affecting respondent's ability to proceed with its case. About mid-way through the hearing, during the cross-examination of the OSHA Area Director and after the subpoenaed materials had been made available, respondent's counsel announced that information had come to his attention through the Secretary's counsel which threatened his ability to continue questioning the witness. According to respondent's counsel, a question was raised as to whether the continuation of his questioning could result in charges being alleged against him. He further stated that this matter could necessitate [*16] his withdrawal from the case in order to appear as a witness, and that he would need to obtain an assistant counsel. Accordingly, he requested that a continuance be granted. At that point, the Secretary's counsel joined in the request for a continuance. When the Judge sought clarification of the situation, however, neither respondent's counsel nor that of the Secretary would explain the nature of the matter nor how long a continuance would be necessary. Accordingly, Judge Knight concluded that he had no basis upon which to justify delaying the proceedings, and he directed the parties to proceed. On review, respondent has only generally revealed the nature of the matter about which it is concerned. n8

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n8 Respondent expands upon the circumstances of the dispute, asserting that during a recess respondent's attorney, having been assured that the information would be held in confidence, revealed to complainant's counsel that he had spoken to three unidentified persons within OSHA whom he might call as witnesses. In an ensuing bench conference, complainant's co-counsel asked respondent to verify his pre-trial discussions with OSHA personnel. Thereafter, the co-counsel assertedly insisted that the actions of respondent's counsel were highly irregular and unprofessional, and threatened "personal sanctions" against respondent's attorney if he pursued the matter. All of these statements were made off the record.

[*17]

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On the basis of the incomplete information made available both to the Judge and the Commission concerning the nature of this situation and the failure of respondent to avail itself of the opportunity to present additional evidence, we find no grounds on which to make any finding of reversible error.

Regarding the penalty, notwithstanding our vacating the Judge's finding of a 1926.605(d)(3) violation with respect to the dredging operation, we find that the Judge properly considered the factors set forth in section 17(i) of the Act in assessing a penalty of $110.

Accordingly, it is ORDERED that the Judge's decision, as modified, is AFFIRMED.