DRAVO CORPORATION

OSHRC Docket No. 14818

Occupational Safety and Health Review Commission

May 28, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Jane A. Lewis, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge David H. Harris is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act" or "OSHA"). In his decision, Judge Harris vacated a citation item alleging an other than serious violation of the Act in that Respondent, Dravo Corporation, failed to comply with 29 C.F.R. 1916.51(a) at its pipe shop on Neville Island, Pennsylvania. n1 The judge vacated the item on the ground that 29 C.F.R. Part 1916 did not apply to the working conditions in Respondent's pipe shop, including the cited working conditions. Specifically, the judge determined that Part 1916 was inapplicable because Respondent's pipe shop employees were not engaged in "shipbuilding or related employments on the navigable waters of the United States, including dry docks, graving docks and marine railways" within the meaning of 29 C.F.R. 1916.2(d).

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n1 The cited standard was published in 29 C.F.R. Part 1916 -- Safety and Health Regulations for Shipbuilding. The standard provided:

1916.51 Housekeeping.

(a) Good housekeeping conditions shall be maintained at all times. Adequate aisles and passageways shall be maintained in all work areas. All staging platforms, ramps, stairways, walkways, aisles, and passageways on vessels or drydocks shall be kept clear of all tools, materials, and equipment except that which is in use, and all debris such as welding rod tips, bolts, nuts, and similar material. Hose and electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.

The Secretary recently has consolidated and revised the standards that previously were published at 29 C.F.R. Parts 1915, 1916 and 1917. These revised standards have been promulgated as a new 29 C.F.R. Part 1915 -- Occupational Safety and Health Standards for Shipyard Employment. 47 Fed. Reg. 16984-17013 (April 20, 1982). The standard cited in this case and set forth above is now found at 29 C.F.R. 1915.91(a). 47 Fed. Reg. 17002. In this decision, we will use the old designation for the cited standard, as well as for the other standards and regulations that we refer to that formerly were published in Part 1916.

[*3]

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The issues before us on review are the following:

(1) Whether the judge erred in vacating the citation on the ground that Respondent's pipe shop is not located on "the navigable waters of the United States, including dry docks, graving docks and marine railways."

(2) Whether the judge erred in vacating the citation on the ground that Respondent's employees were not engaged in "shipbuilding" or "related employment."

(3) If the judge erred in concluding that Part 1916 does not apply to Respondent's pipe shop, whether the citation should nevertheless be vacated on the ground that the cited standard applies only to working conditions "on vessels or drydocks."

(4) If the cited standard applies to the cited working conditions, whether Respondent failed to comply with the standard.

For the reasons stated herein, we reverse the judge's conclusion that the inland location of Respondent's pipe shop precluded the application of Part 1916 to the working conditions in that shop. However, we affirm the judge's conclusion that Part 1916 was inapplicable because Respondent's pipe shop employees were not engaged [*4] in "shipbuilding" or "related employment." For this reason, we affirm the judge's order vacating the citation item at issue. n2

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n2 The four issues set forth above are before the Commission as the result of a direction for review issued by Commissioner Cleary and a supplemental briefing order issued by the Commission after review has been directed. In addition, former Commissioner Moran directed review of the judge's decision "for error." Notwithstanding this general direction for review, none of the parties have taken exception to the judge's decision and order insofar as it amends the citation item on review, vacates an alternative allegation of noncompliance with 29 C.F.R. 1910.22(b)(2), and vacates a second contested citation item, item 4. There is also no compelling public interest warranting further review of those portions of the judge's decision that relate to those matters. Therefore, those portions of the judge's decision will not be considered on review. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976). The described portions of the decision are accorded the significance of an unreviewed judge's decision. See Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir. May 17, 1976).

[*5]

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I

Respondent operates a large industrial complex engaged in steel fabrication and shipbuilding on Neville Island, Pennsylvania. The northern edge of the island and of the facility borders along "navigable waters of the United States," while a smaller channel of the river borders the southern edge of the island. The length of the complex, along the east-west axis, is approximately one-half mile. The distance from the main channel on the north to the structural shop on the southern side of the island is 900 to 1200 feet. Marine ways, boat launching facilities, and one of the two separate yards, where towboats and barges respectively are assembled, are located on the north side of the complex. The "most extremely north building on the property," located approximately 100 feet from the river and near the marine launching ways, is the pipe shop where the alleged violation occurred.

The pipe shop occupies most of a "T"-shaped building, including all of the "low bay," which forms the base of the "T," and approximately 70% of the "high bay." The remainder of the building is occupied by the mechanical [*6] erection department, a separate operation. The low bay is approximately 60 feet wide and 240 feet long. About 25 employees work inthe pipe shop. Of these, 12 or 13 are welders and the rest are fitters, machinists, and pipe benders. The employees perform their work at tables set up in the pipe shop. They do not perform work outside of the pipe shop.

The pipe shop employees are engaged in fabricating pipe assemblies and also sub-assemblies, including rudders, Kort nozzles, sewage holding tanks and fitting. When pipe assemblies are completed, they are taken to storage areas in the boatyards, to marine ways for direct installation in a barge or towboat, or to the structural shop. Completed sub-assemblies are sent to the structural shop for inclusion in larger assemblies. Approximately 90% of the pipe shop's production eventually is installed in towboats or barges assembled in the Respondent's yards. The remaining 10% is used in material handling machinery or plant maintenance.

Respondent's procedure for assembling vessels involves nine steps, taking 55 days from the initial step to launching. Additional work is done on the vessel after it has been launched. Generally, the [*7] assemblies fabricated by the pipe shop are completed and stored temporarily before the procedure for assembling the vessel begins.

The citation item at issue resulted from an inspection of the pipe shop by a compliance officer of the Occupational Safety and Health Administration. The cited conditions were located near the south wall of the low bay of the shop. Electrical lines, welding lead lines, oxygen hoses, and acetylene hoses extended from four welding machines placed along the south wall to work tables approximately ten feet from the machines. In addition, lines for four burning or cutting torches extended through the work area. These various hoses and cables crossed each other on the floor in a "spaghetti-like condition." According to the compliance officer, this intermingling of the hoses and cables created a tripping hazard to employees. On the day of the inspection, seven employees were working in the area in question.

II

The initial question to be determined is whether the scope of Part 1916 under OSHA was determined exclusively by the provisions of 29 C.F.R. 1910.14, as argued by the Secretary on review, or whether it was also limited by the provisions of 29 C.F.R. [*8] 1916.1 & 1916.2, as held by Judge Harris and argued by Respondent throughout this proceeding. The standards published at 29 C.F.R. Part 1916, including the cited standard, were originally promulgated by the Secretary as standards under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. 901-950 ("the LHWCA"). Subsequently, they were adopted as standards under OSHA pursuant to the authority granted to the Secretary in section 6(a) of the Act, 29 U.S.C. 655(a). n3 In his decision in this case, Judge Harris concluded that the standards in Part 1916 had "the same meaning, extent and application" under OSHA as they had under the LHWCA. Accordingly, the further concluded that the definition of the term "employee" in 29 C.F.R. 1916.2(d) "controlled" the extent of an employer's duty under Part 1916, which duty was set forth in 29 C.F.R. 1916.1(a). n4 The judge then based his holding that Part 1916 is inapplicable to Respondent's pipe shop in part on his determination that the shop is not "on the navigable waters of the United States, including dry docks, graving docks and marine railways" within the meaning of section 1916.2(d).

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n3 Section 6(a) of OSHA provides, in pertinent part:

Without regard to chapter 5 of title 5, United States Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard . . . any established Federal standard . . . .

The term "established Federal standard" is defined, in section 3(10) of the Act, 29 U.S.C. 652(10), 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."

n4 29 C.F.R. 1916.1 was captioned "Purpose, scope, and responsibility." Section 1916.1(a) provided, in pertinent part:

Section 41 of the Longshoremen's and Harbor Workers' Compensation Act requires every employer to furnish and maintain employment and places of employment which are reasonably safe for his employees in all employments covered thereby . . . . The purpose of this part [29 C.F.R. Part 1916] is to make determinations under this standard with respect to shipbuilding activity. (Emphasis added).

29 C.F.R. 1916.2 was captioned "Definitions." Section 1916.2(d) provided:

(d) The term "employee" means any person employed in shipbuilding or related employments on the navigable waters of the United States, including dry docks, graving docks and marine railways, by an employer as defined in paragraph (c) of this section.

These provisions do not appear in the recently-promulgated new Part 1915. See note 1 supra. However, the new Part 1915 contains comparable provisions that apparently were intended to have the same effect. See 29 C.F.R. 1915.1, 1915.3(a) and 1915.4(c) & (d). 47 Fed. Reg. 16987. In particular, we note that 1915.4(d), in defining the term "employee," retains the following language from 1916.2(d): "person engaged in . . . shipbuilding . . . or related employments on the navigable waters of the United States, including dry docks, graving docks and marine railways . . . ."

[*10]

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The Secretary takes exception to the judge's conclusion that former section 1916.2(d) "controlled" the extent of an employer's duty under OSHA. He contends that sections 1916.1 and 1916.2 were relevant only in determining the scope of Part 1916 under the LHWCA was that they did not affect the scope of those standards under OSHA. Respondent argues in support of the judge's analysis and his conclusions.

We conclude that the judge erred in relying on the definition set forth at 29 C.F.R. 1916.2(d). The regulation adopting the Part 1916 standards as OSHA standards is published at 29 C.F.R. 1910.14. Section 1910.14(a) is captioned "[a]doption and extension of established safety and health standards for shipbuilding" (emphasis added). It provides: n5

The standards prescribed by Part 1502 of this title and in effect on April 28, 1971, are adopted as occupational safety or health standards under section 6(a) of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in shipbuilding or a related employment. Each [*11] employer shall protect the employment and places of employment of each of his employees engaged in shipbuilding or a related employment, by complying with the appropriate standards prescribed by this paragraph. (Emphasis added).

Furthermore, at the same time the Secretary issued section 1910.14, he also issued 29 C.F.R. 1910.11 [now 1910.11(a)], which states:

The provisions of this Subpart B [including section 1910.14] adopt and extend the applicability of, established Federal standards in effect on April 28, 1971, with respect to every employer, employee, and employment covered by the Act. (Emphasis added.)

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n5 When the shipbuilding standards were issued under the LHWCA, they were published in 29 C.F.R. Part 1502. Part 1502 was redesignated as Part 1916 after the standards had been adopted under OSHA. We further note that the term "employee" as it is used in 1910.14 is defined at 29 C.F.R. 1910.2(d). Accordingly, the definition at 1916.2(d), note 4 supra, was inapplicable.

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Respondent argues [*12] and the judge agreed that, because section 1910.14(a) states that Part 1916 applied "according to the provisions thereof," the Secretary in adopting Part 1916 under OSHA also adopted the restrictions on its scope as set forth in sections 1916.1 and 1916.2. We disagree. Subpart B of Part 1910, which includes section 1910.14, also sets forth the following provision at section 1910.11(b):

(b) It bears emphasis that only standards (i.e., substantive rules) relating to safety or health are adopted by any incorporations by reference of standards prescribed elsewhere in this chapter or this title. Other materials contained in the referenced parties [sic] are not adopted. Illustrations of the types of materials which are not adopted are these. The incorporations by reference of Parts 1915, 1916, 1917, 1918 in 1910.13, 1910.14, 1910.15, and 1910.16 are not intended to include the discussions in those parts of the coverage of the Longshoremen's and Harbor Workers' Compensation Act or the penalty provisions of the Act. Similarly, the incorporation by reference of Part 1926 in 1910.12 is not intended to include references to interpretative rules having relevance [*13] to the application of the Construction Safety Act, but having no relevance to the application to the Occupational Safety and Health Act. [Emphasis added].

It is clear that sections 1916.1 and 1916.2(d) were part of "the discussions in . . . [Part 1916] of the coverage of the Longshoremen's and Harbor Workers' Compensation Act." See note 4, supra and section 2(4) of the LHWCA, 44 Stat. 1424, 1425 (1927). We therefore conclude that the Secretary did not adopt sections 1916.1 and 1916.2(d) as standards under OSHA. Instead, he stated in section 1910.11(b) that these provisions were not adopted under OSHA. n6

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n6 The Secretary recently reaffirmed his original intent in the preamble to the new Part 1915. See note 1 supra. Referring to his 1971 adoption of the LHWCA standards on ship repairing, shipbuilding and ship breaking as standards under OSHA, the Secretary stated, at 47 Fed. Reg. 16986:

As was noted at that time, and as set forth in 1910.13, 1910.14, and 1910.15, the adoption of these standards as OSHA standards did not incorporate those provisions which dealt with application or interpretation of the LHWCA. Several such provisions have continued to be published in Parts 1915 through 1917, but their relevance is limited to LHWCA, and they are not governing under OSHA. The consolidation of the shipyard standards which is being accomplished today does not affect this coverage.

[*14]

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We further reject Respondent's contention that the Secretary had no authority under section 6(a) of the Act to adopt the standards in Part 1916 without also adopting the restrictions in sections 1916.1 and 1916.2(d). The Commission has consistently held that section 6(a) authorized the Secretary to extend "established Federal standards" beyond the jurisdictional limitations of the statutes under which the standards were initially promulgated. Brown & Root, Inc., 81 OSAHRC 17/D14, 9 BNA OSHC 1407, 1409, 1981 CCH OSHD P25,226 at p. 31,171 (No. 77-805, 1981) (29 C.F.R. Part 1915); Bechtel Power Corp., 76 OSAHRC 38/E2, 4 BNA OSHC 1005, 1008, 1975-76 CCH OSHD P20,503 at pp. 24,500-501 (No. 5064, 1976), aff'd, 548 F.2d 248 (8th Cir. 1977) (29 C.F.R. Part 1926); Lee Way Motor Freight, Inc., 74 OSAHRC 22/D12, 1 BNA OSHC 1689, 1691, 1973-74 CCH OSHD P17,693 at p. 22,088 (No. 1105, 1974), aff'd, 511 F.2d 864, 869 (10th Cir. 1975) (Walsh-Healey standards in 29 C.F.R. Part 1910). See generally, American Can Co., 82 OSAHRC    /   , 10 BNA OSHC 1305, 1982 CCH OSHD P25,899 (Nos. 76-5162 [*15] et al., 1982) (discussion of permissible and impermissible changes in established Federal standards). As indicated, the Secretary exercised this authority when he adopted Part 1916 and extended its application "to every employment and place of employment of every employee engaged in shipbuilding or a related employment."

Accordingly, we reverse the judge's conclusion that 29 C.F.R. 1916.2(d) "controlled" the extent of an employer's duty under OSHA. Because the Secretary did not adopt that section or section 1916.1, Part 1916 was not limited under OSHA to employment "on the navigable waters of the United States, including dry docks, graving docks and marine railways." For this reason, the judge erred to the extent that he relied on the inland location of Respondent's pipe shop as the basis of his holding that Part 1916 did not apply to working conditions in the pipe shop. n7

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n7 In Dravo Corp. v. OSHRC & Marshall, 613 F.2d 1227 (3rd Cir. 1980), the United States Court Of Appeals for the Third Circuit held that a structural shop on the same Neville Island was not covered by the shipbuilding standards. The court reversed a decision by a Commission administrative law judge that had not been reviewed by the Commission. In reversing the judge and finding the shipbuilding standards inapplicable, the court relied on the scope provisions of Subpart A of Part 1916, including the definitions of "employer," 1916.2(c), and "employee," 1916.2(d). In Part 1916, the definitions of "employer" and "employee" referred to the narrow situs term "navigable waters." The court noted its view that these definitions limited the coverage of Part 1916 under OSHA to "navigable waters . . . including dry docks, graving docks, and marine railways."

The narrow situs term "navigable waters" is not present in the scope or definition provisions of 1910.14 and neither the Commission judge nor the Dravo court considered whether 1910.14 was the exclusively applicable scope provision for Part 1916 under OSHA. Accordingly, the Third Circuit's opinion is not conclusive on this question. Cf. S.E.C. v. Chenery Corp., 332 U.S. 194 (1947) (Chenery II) (a reviewing court considers the propriety of an agency's action only on the grounds stated in the agency decision and the Court's previous reversal and remand of the agency's unsupportable action in Chenery I, 318 U.S. 80 (1943), did not preclude the agency from taking the same action on remand on other grounds supportable by law).

[*16]

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III

Having determined that the scope of Part 1916 under OSHA was governed by 29 C.F.R. 1910.14 and that Part 1916 therefore applied to "every employment and place of employment of every employee engaged in shipbuilding or a related employment," we must next determine whether the judge erred in concluding that the employees in Respondent's pipe shop were not engaged in "shipbuilding" or "related employment." The applicable definitions of these key terms are set forth in sections 1910.14(b)(1) & (2). n8 The terms are defined as follows:

(1) "Shipbuilding" means the construction of a vessel, including the installation of machinery and equipment.

(2) "Related employment" means any employment performed as an incident to, or in conjunction with, shipbuilding work, including, but not restricted to, inspection, testing trials, and employment as a watchman.

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n8 Respondent argues that the applicable definitions of "shipbuilding" and "related employment" were those set forth in 1916.2(i) & (j). For the reasons stated in Part II of this opinion, we conclude that those definitions were not adopted under OSHA and that they are relevant only in determining the scope of Part 1916 under the LHWCA. Nevertheless, we note that the two sets of definitions are identical and that the terms "shipbuilding" and "related employment" accordingly have the same meaning under both OSHA and the LHWCA.

[*17]

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The Secretary contends that the employees working in Respondent's pipe shop were engaged in "shipbuilding" or "related employment." The Secretary emphasizes the following facts: (1) the pipe shop was located only 100 feet from the water, (2) the work performed by the employees furthered their employer's business of new ship construction, and (3) 90% of the pipe shop's production was eventually installed in towboats or barges assembled at Respondent's boatyards. The Secretary argues that these facts support a finding that the employees at issue were engaged in shipbuilding or, at the very least," employment performed as an incident to, or in conjunction with, shipbuilding work" within the meaning of section 1910.14(b)(2), supra.

In particular, the Secretary urges us to draw an analogy to Commission decisions construing the term "construction work" as it is used in determining the scope of Part 1926. The Secretary cites the Commission's decisions in A.A. Will Sand & Gravel Corp., 76 OSAHRC 81/G2, 4 BNA OSHC 1442, 1976-77 CCH OSHD P20,864 (No. 5139, 1976), and in United Telephone Co. of the [*18] Carolinas, 76 OSAHRC 110/B14, 4 BNA OSHC 1644, 1976-77 CCH OSHD P21,043 (No. 4210, 1976). The Secretary asserts that, under those decisions, the test for determining whether an employee is engaged in "construction work" is whether his work is an integral part of the construction activities at the worksite. Analogizing to this test, the Secretary reasons that the work performed by the pipe shop employees was an integral part of the shipbuilding activities at Respondent's Neville Island workplace. Accordingly, the Secretary continues, the employees in the pipe shop were clearly engaged in covered activities.

Respondent urges us to adopt the judge's conclusion that its pipe shop employees were not engaged in "shipbuilding" or "related employment." It contends in effect that the term "shipbuilding" refers to the process of actually assembling a vessel. Thus, it notes that shipbuilding at its workplace is an integrated work process consisting of nine steps before flotation of the vessel and additional work aboard the vessel after flotation. It implicitly argues that this integrated work process is "shipbuilding" within the meaning of the term and that the pipe fabrication is not [*19] "shipbuilding" because it is not a part of this integrated process but rather is a separate production process.

In addition, Respondent asserts that its pipe shop employees were not engaged in a "related employment." Referring to the examples given in the definition of the term, i.e., "inspection, testing trials, and employment as a watchman," Respondent reasons that activities classified as "related employment" share two essential characteristics: (1) they are contemporaneous with the "actual" shipbuilding process and (2) they result in exposure to the same hazards arising from "actual" shipbuilding activity. In contrast, Respondent continues, the pipe fabrication involved in this case "precedes any actual shipbuilding activity," making it "remote" in both time and hazard potential from the types of employment classified as "related employment."

We agree with Respondent. Sections 1910.14(b)(1) & (3) describe "shipbuilding" as "construction of a vessel, including the installation of machinery and equipment", and "vessel" as "watercraft . . . capable of being used, as a means of transportation on water . . . ." The employees in Respondent's pipe shop do not construct vessels [*20] capable of being used in water. Rather, the employees cut sheet metal and pipe into "pre-assemblies", and also fabricate "sub-assemblies" such as rudders, nozzles and sewage holding tanks. Nor do the employees in the pipe shop install machinery or equipment into vessels; such installation takes place across the street in the "barge shop" or the boatyard, usually after the "pre-assemblies" and "sub-assemblies" have been temporarily stored in an intermediate storage area.

Since the pipe shop operations are not "shipbuilding", the determinative issue is whether the employees in the pipe shop are engaged in "related employment." The plain meaning of the words in the definition of "related employment", as well as the whole regulatory scheme of former Part 1916, suggests that a variety of factors must be considered to determine whether the activities in Respondent's pipe shop constitute "related employment". See Berglund-Cherne General Contractors, 82 OSAHRC    /   , 10 BNA OSHC    , 1982 CCH OSHD P26,039 (No. 79-4347, 1982) (regulations should be construed to give effect to the natural and plain meaning of its words); 1910.14(b)(2) defines "related employment" as employment [*21] which is "incident to, or in conjunction with" shipbuilding; thus, we must consider whether the cited operations are contingent upon and occur simultaneously with the construction of a vessel. The examples of "related employment" listed in 1910.14(b)(2) -- such as inspections, testing trials, and watchmen duties -- suggest that the nature or the type of work is a relevant factor. n9 In addition, the entire regulatory scheme of the shipbuilding standards in Part 1916 addresses hazards which are unique to the immediate construction of ships. n10 In our view, the following factors are relevant in determining whether employees were engaged in "shipbuilding" or related employment": (a) the nature of the work being performed. e.g., whether it is peculiar to shipbuilding or common to other industries as well, whether the constructio of a vessel is dependent upon the work at issue, etc.; (b) the proximity in terms of time and location of the work at issue to the work of actually constructing the vessel; and (c) the relationship of the work at issue to the hazards that are normally incident to the construction of a vessel.

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n9 Indeed, the construction cases relied upon by the Secretary look to the nature of the work when applying the "integral part" test. See United Telephone Company of the Carolinas, 4 BNA OSHC at 1645 (reconstruction of telephone lines constitutes "alterations", a term specifically used to define "construction work" in 1910.12(b)); A. A. Will Sand, 4 BNA OSHC at 1443 (unloading of gravel onto conveyor hopper only as the gravel was needed for the roof repairs, constitutes "construction").

n10 For example: 1916.32(f) refers to tank shells, decks, overheads, and bulk heads; 1916.43(a), (b), (c), and (e) refer to deck openings, hatches, flotation devices and bilges; 1916.44 refers to vessels afloat, gangways, Jakob's ladders; 1916.55 refers to radar, radios, masts and king posts.

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In the case now before us, the work being performed by Respondent's pipe shop employees were directly related to Respondent's shipbuilding work only in the sense that approximately 90% of the employees' work product was ultimately installed in the towboats and barges assembled [*23] in Respondent's boatyards. Nevertheless, the work being performed by these employees was the fabrication of pipes and pipe assemblies. Therefore, the employees were engaged in what was essentially a manufacturing operation that was not significantly different from operations found in various other industries. Moreover, the workplace of these employees was physically separated from the areas where the towboats and barges were assembled, and the work of the employees was completed before the work of assembling the vessels was begun. For these reasons, the working conditions of the employees, including the hazards incident to their work, were comparable to the working conditions of employees engaged in manufacturing operations and dissimilar to the working conditions customarily encountered by employees engaged in the construction of a vessel.

We therefore conclude, on balance, that the work performed by Respondent's pipe shop employees was not "shipbuilding" or "related employment." We agree with Respondent that the work was not covered by Part 1916 because it was remote in terms of time and location from Respondent's shipbuilding activities and it did not involve exposure to maritime [*24] hazards.

We base this conclusion on another ground as well. Having reviewed the standards in former Part 1916, we note that there were no standards therein that specifically applied, either by their express terms or their apparent intent, to the types of working conditions that would be found in Respondent's pipe shop. Indeed, many of the standards, including the one at issue in this case, are expressly limited to working conditions on vessels or drydocks or in confined spaces such as those typically found in vessels. See note 10, supra. We therefore conclude that the Secretary did not specifically consider the work activities that are before us to be "shipbuilding" or "related employment" when he promulgated 29 C.F.R. Part 1916. Cf. BJ-Hughes, Inc., 82 OSAHRC    /   , 10 BNA OSHC 1545, 1982 CCH OSHD P25,977 (No. 76-2165, 1982) (holding that Part 1926 does not apply to oil drilling and concluding, based on review of standards in Part 1926, that the Secretary did not specifically consider oil drilling to be construction work when he promulgated Part 1926).

We reject the Secretary's analogy to the cases interpreting the term "construction work" in 29 C.F.R. 1910.12, [*25] which governs the scope of Part 1926, and his argument in support of an expansive interpretation of the terms "shipbuilding" and "related employment." Initially, we note that, while the "integral part" test in the context of Part 1926 was developed as an interpretation of the term "construction work," extension of that test to former Part 1916 would have resulted in a substitution of the "integral part" test for the test expressly set forth by the Secretary in 29 C.F.R. 1910.14, including the definitions of "shipbuilding" and "related employment." In sum, we conclude that there is no need for applying an "integral part" test to the clear and unambiguous definitions of "shipbuilding" and "related employment."

We further observe that the Secretary adopted in section 1910.14 the same definitions of "shipbuilding" and "related employment" that he had used under the LHWCA. See note 8 supra. This indicates that the Secretary did not extend former Part 1916 to work activities that had not been covered under the LHWCA standards. There is no evidence of which we are aware that the predecessor standards under the LHWCA ever were applied to the types of activities that are before [*26] us. Accordingly, we decline to adopt a test for determining the coverage of former Part 1916 that would lead to an expansion of its coverage to these types of activities.

In addition, we conclude that the Secretary's position is contrary to the purposes and objectives of the Act. It is clear that the goal of safe and healthful working conditions in Respondent's pipe shop would be better served by applying to that shop the general industry standards in 29 C.F.R. Part 1910 rather than the shipbuilding standards formerly in Part 1916. The general industry standards are quite pervasive and they are specifically designed to cover many of the hazards that would be encountered in Respondent's pipe fabrication and assembly operations. In contrast, as indicated above, there are no provisions formerly in Part 1916 that appear to be well suited for application to an operation that is essentially a manufacturing operation separated in both time and location from shipbuilding activities and the hazards incident to those activities.

For the reasons stated above, we affirm Judge Harris' conclusion that the employees in Respondent's pipe shop were not engaged in "shipbuilding" or "related employment." [*27] Moreover, because the employees at issue were not engaged in a covered employment, we also affirm the judge's conclusion that 29 C.F.R. Part 1916, including the cited standard, did not apply to the working conditions in Respondent's pipe shop. Accordingly, the Judge's decision vacating the citation item alleging noncompliance with 29 CFR. 1916.51(a) on the ground that that standard did not apply to the cited working conditions is affirmed.

SO ORDERED.

CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

I join in Part II of the majority's opinion and their conclusion that the scope under the OSH Act of these standards was governed exclusively by the provisions of 29 C.F.R. 1910.14. Accordingly, the limitation in 29 C.F.R. 1916.2(d) to employment on "navigable waters . . . including dry docks, graving docks, and marine railways" was a restriction on the scope of Part 1916 only as it applied under the LHWCA and Judge Harris erred in relying upon the provisions of that section. I also concur with the majority's disposition of the alleged violations. However, I would affirm the judge on different grounds.

I

The majority errs in concluding that Respondent's pipe shop employees were [*28] not engaged in "shipbuilding" or "related employment." Rather, the Secretary properly relies on analogous Commission precedent construing the term "construction work" in 29 C.F.R. 1910.12 and correctly concludes that employees are engaged in "shipbuilding" or "related employment" when their work is an integral part of the shipbuilding activities at their worksite. See, e.g., United Telephone Co. of the Carolinas, 76 OSAHRC 110/B14, 4 BNA OSHC 1644, 1976-77 CCH OSHD P21,043 (No. 4210, 1976); A.A. Will Sand & Gravel Corp., 76 OSAHRC 81/G2, 4 BNA OSHC 1442, 1976-77 CCH OSHD P20,864 (No. 5139, 1976); Bechtel Power Corp., 76 OSAHRC 38/E2, 4 BNA OSHC 1005, 1975-76 CCH OSHD P20,503 (No. 5064, 1976), aff'd, 548 F.2d 248 (8th Cir. 1977). In adopting and extending Part 1916 standards, the Secretary applied those standards to "every employment and place of employment of every employee engaged in shipbuilding or a related employment." 29 C.F.R. 1910.14(a). (Emphasis added). He then defined "related employment" as including "any employment performed as an incident to, or in conjunction with, shipbuilding work . . . ." 29 C.F.R. 1910.14(b)(2). Accordingly, [*29] the coverage of incidental employment was even clearer in the context of Part 1916 than it is in the context of Part 1926, and the principles underlying the Commission's broad construction of the scope of Part 1926 are of equal, if not greater, force in determining the scope of the standards formerly published in Part 1916. For these reasons, the test urged by the Secretary is the proper test to be applied by the Commission.

Applying this test to the facts of this case, it is clear that Respondent's employees in its pipe shop were engaged in "shipbuilding" or a "related employment." These employees worked on the premises of a large industrial complex where their employer was engaged in shipbuilding as one of its principal activities. Their particular workplace was located only 100 feet from navigable waters and near the marine launching ways. Moreover, the primary purpose of their work was to further Respondent's shipbuilding enterprises. In addition, their work was a necessary step in the integrated process of vessel construction. At the time of the inspection, approximately 90% of the work product of the pipe shop was eventually installed in towboats or barges assembled by [*30] Respondent at this worksite. Accordingly, these employees were engaged in work that was an integral part of the shipbuilding activities at Respondent's Neville Island complex and their work activities were within the scope of the OSHA shipbuilding standards formerly published in Part 1916.

II

Notwithstanding the conclusion that Part 1916 was generally applicable to the working conditions in Respondent's pipe shop, I conclude that the particular standard cited in this case did not apply to the cited working conditions. n1 On this ground, I join the majority is affirming the judge's disposition of the citation at issue.

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n1 As set forth in note 1 of the lead opinion, the standard in question was published at 29 C.F.R. 1916.51(a) at the time the citation on review was issued, but it recently has been renumbered as 29 C.F.R. 1915.91(a). Throughout this opinion, I use the old codification of the standard.

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Section 1916.51(a) included a provision that working and walking areas "on vessels and drydocks" shall be kept [*31] clear of materials that could create an obstruction or a tripping or slipping hazard. In light of the limitations of this provision to conditions on "vessels or drydocks," the Commission issued a supplemental briefing order requesting the views of the parties as to whether section 1916.51(a) in its entirety was limited to conditions on "vessels" and "drydocks." Both the Secretary and Respondent submitted their views on this issue, taking conflicting positions. Nevertheless, the arguments of both these parties share the same underlying premise, that is, that the phrase merely reflected the jurisdictional limitations of the LHWCA and that it did not have any independent force and effect. This premise is erroneous.

It is more reasonable to conclude that standards using the terms "vessels" and "drydocks" specifically address working conditions or hazards unique to vessels, drydocks, or both vessels and drydocks. In any event, I follow the basic principle that standards should be construed to give effect to all of their provisions so that no part will be rendered superfluous. See In re Surface Mining Regulation Litigation, 627 F.2d 1346, 1362 (D.C. Cir. 1980), citing [*32] 2A Sutherland Statutory Construction, 46.06 at 63 (4th ed. 1973); U.S. v. Menasche, 348 U.S. 528 (1955); Tabor v. Ulloa, 323 F.2d 823 (9th Cir. 1963). In particular, I reject the Secretary's contention that the phrase "on vessels or drydocks" was a limitation on the scope of some of the standards in which it was used but mere surplusage in other standards in which it was used. Section 1910.14(a), the provision that controls the adoption and extension of the LHWCA standards, clearly states that the adopted standards "shall apply according to the provisions thereof." Furthermore, the Secretary's position, if adopted, would require employers to guess as to the meaning of the standards formerly published in Part 1916 and could render particular standards unenforceably vague. Accordingly, I conclude that the phrase "on vessels or drydocks," as used in section 1916.51(a) and other standards formerly published in Part 1916, was a limitation on the scope of those specific provisions.

Although the phrase "on vessels or drydocks" was used only in the third sentence of section 1916.51(a), a reading of the standard as a whole indicates that the entire standard was directed to [*33] working conditions and hazards unique to vessels and drydocks. Accordingly, the cited provision did not apply to the cited conditions in Respondent's pipe shop. For this reason, I concur in the Commission's affirmance of the judge's order vacating this citation item.