UNITED STATES STEEL CORPORATION, DUQUESNE PLANT

OSHRC Docket No. 14948

Occupational Safety and Health Review Commission

April 30, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Lloyd H. Shenefelt, III, U.S. Steel Corporation, for the employer

John Durik, President, Local Union No. 1256, United Steelworkers of America, for employees

OPINION:

DECISION

BY THE COMMISSION:

An order of Administrative Law Judge Joseph Chodes, dated August 31, 1978, is before the Commission on review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Commissioner Cottine directed review of the Secretary's petition for discretionary review including the primary issue raised by the petition: n2

Whether the Judge erred in vacating the citation of an alleged violation of 29 C.F.R. §   1910.179(g)(2)(i) on the ground that the cited overhead cranes were installed prior to August 31, 1971, and consequently not covered by the standard.

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n1 29 U.S.C. §   661(i).

n2 The direction for review also raised the question of "whether the 'Joint Stipulation and Motion for Stay of Proceedings' precludes the Review Commission from deciding the issues raised by the petition for discretionary review." However, both parties recognize that this case is cabpable or resolution by our interpretation of the grandfather clause contained in 29 C.F.R. §   1910.179(g)(2)(i).   Accordingly, we need not consider the legal effect, if any, of the stipulation between the parties regarding 29 C.F.R. §   1910.179.

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Item 3 of Citation No. 1, the only item before us, alleged that Respondent failed to comply with 29 C.F.R. §   1910.179(g)(2)(i).   This item was the subject of a Joint Stipulation and Motion for Stay of Proceedings filed on November 21, 1975, and subsequently granted by the Commission.   By the terms of the agreement the Secretary and Respondent agreed that the facts in the present case were identical to the facts in U.S. Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1977-78 CCH OSHD P21,795 (Nos. 10825 & 10849, 1977), then undecided.   Following our decision in U.S. Steel Corp., supra, we rescinded our stay of the proceedings and remanded the case to the judge.   In response to Respondent's motion for summary judgment, the judge, following our holding in U.S. Steel Corp., supra, concluded that since the cranes cited in item 3 of Citation No. 1 were constructed before August 31, 1971, they were exempt from the provisions of 29 C.F.R. §   1910.179(g)(2)(i).   He franted Respondent's motion for summary judgment and vacated item 3 of Citation No. 1.

Beginning with our decision in U.S. Steel   [*3]    Corp., supra, and continuing in Pittsburgh-Des Moines Steel Co., 77 OSAHRC 75/E6, 5 BNA OSHC 1420, 1977-78 CCH OSHD P21,804 (No. 13708, 1977), aff'd, 584 F.2d 638 (3d Cir. 1978); Wheeling-Pittsburgh Steel Corp., 77 OSAHRC 81/C10, 5 BNA OSHC 1495, 1978 CCH OSHD P23,056 (Nos. 1611, 11327 & 14366, 1977), aff'd, sub nom, Marshall v. Pittsburgh-Des Moines Steel Co., 584 F.2d 638 (3d Cir. 1978); and most recently in General Dynamics Corp., No. 78-3290 (April 30, 1980), we have held that those provisions of section 1910.179 that are derived from the "construction and installation" requirements of ANSI B30.2.0.-1967 set out in chapter 2-1 of that standard are advisory with respect to overhead and gantry cranes purchased and installed before August 31, 1971.   The provisions of section 1910.179 as to which the judge granted summary judgment in this case are derived from those requirements.

Accordingly, there being no dispute that the cranes at issue were in operation before August 31, 1971, the judge's order is affirmed in full. n3 Respondent's motion for summary judgment is granted.

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n3 Respondent submitted the affidavit of its general superintendent to the effect that the cranes involved in item 3 of Citation No. 1 were constructed prior to August 31, 1971.   This statement has not been challenged by the Secretary of Labor.

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Item 3 of Citation No. 1 is vacated.

SO ORDERED.