BROWN & ROOT, INC.
OSHRC Docket No. 77-805
Occupational Safety and Health Review Commission
February 27, 1981
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BEFORE: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
James E. White, Reg. Sol., USDOL
Joe M. Stevens, Jr., for the employer
OPINION:
DECISION
BY THE COMMISSION:
A decision of Administrative Law Judge John J. Larkin 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"). The Secretary of Labor ("Secretary") issued citations to Respondent, Brown & Root, Inc., alleging violations of the Act for noncompliance with various standards in 29 C.F.R. Part 1915, entitled "Safety and Health Regulations for Ship Repairing."
In his decision, Judge Larkin granted Respondent's motion to dismiss the citations. The judge concluded that section 1915.1(b) indicates that the cited standards do not cover ship repair work unless the Secretary proves either that the work is done by workers who are not part of the ship's crew or that the work is not supervised by the ship's officers. n1 The judge determined that the Secretary did not establish either of those elements and he vacated the citations.
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n1 The judge so concluded on the basis of the part of the standard which he deemed pertinent, which part states as follows:
§ 1915.1 Purpose, scope and responsibility.
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(b) Pursuant to Public Law 85-742 [amending the Longshoremen's and Harbor Workers' Compensation Act] the regulations of this part do not make determinations with respect to matters under the control of the United States Coast Guard within the scope of Title 52 of the Revised Statutes and Acts supplementary or amendatory thereto (46 U.S.C. 1-1388, passim), including, but not restricted to, the master, ship's officers, crew members, design, construction, and maintenance of the vessel, its gear and equipment . . . .
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Arguing that the judge's conclusion was in error the Secretary filed a petition for review which Commissioner Barnako granted. Thus, the sole issue before the Commission is whether the judge correctly determined the coverage of the cited standards.
I
The Respondent is involved in the construction of offshore oil pipelines. Work is normally done from barges. One of Respondent's [*3] barges, the "M-347," had been structurally damaged and was undergoing repairs at the Border Patrol Dock in the Mississippi River at Algiers, Louisiana when a compliance officer of the Occupational Safety and Health Administration ("OSHA") conducted an inspection that gave rise to the citations presently under review.
At the outset of the hearing in this case the Respondent filed a motion to dismiss. The judge reserved his ruling on that motion, and the parties presented evidence on the substantive issues. The parties also submitted post-hearing briefs for the judge's consideration. The Respondent's principal contention in support of the motion was that the Coast Guard had authority over the cited work conditions and had issued applicable regulations thereby preempting OSHA jurisdiction pursuant to section 4(b)(1) of the Act, 29 U.S.C. § 653(b)(1). It also argued that pipeline-related employment had been specifically excluded from the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA") standards and, thus, this work likewise was excluded from the Act.
The judge, looking to section 1915.1(b), found that the barge had "a ship's master or Captain and a superintendent" [*4] and that the barge was not brought into port specifically for repair work. The judge concluded that the Secretary failed to establish either that the repair work was done by men other than members of the regular ship's crew or that it was not supervised by the ship's officers. n2 In the absence of that proof, the judge held that the work was not covered by the Act because it was excluded under 29 C.F.R. § 1915.1(b). n3 The judge did not address either the Respondent's preemption arguments or any of the Respondent's other contentions in support of the motion to dismiss, nor did he address the merits of the alleged violations.
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n2 The OSHA compliance officer who inspected the worksite testified that at least some of the workers he observed doing repair work were local men and were not crew members of the barge. The compliance officer further indicated that he had spoken with only some of the men and could not say with certainty that none of the others were crew members. The Respondent's manager of marine transportation testified that repair work was normally done by the ship's crew and that some crew members lived in the local area.
n3 See note 1 supra.
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II
The standards at Part 1915 were among those promulgated by the Secretary as established federal standards under section 6(a) of the Act, 29 U.S.C. § 655(a). In exercising his authority to promulgate occupational safety and health standards under section 6(a), the Secretary specified that he adopted only the substantive rules relating to safety and health and not the "[o]ther materials contained in the referenced parts." n4 In Bechtel Power Corp., 1976 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), the Commission noted that at section 1910.12(a), the Secretary specifically excluded the coverage limitations of Part 1926 when he adopted the substantive standards from the Construction Safety Act. Thus, the Commission refused to exempt that employer from compliance with the construction standards on the basis of a coverage limitation effectuated under the Construction Safety Act. We concluded that the Secretary is empowered to extend the coverage of established federal standards in accordance with rulemaking powers under the Act. [*6] Accord, Underhill Construction Corp., 75 OSAHRC 32/B8, 2 BNA OSHC 1556, 1974-75 CCH OSHD P19,276 (No. 1307, 1975), aff'd, 526 F.2d 53 (5th Cir. 1975).
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n4 29 C.F.R. § 1910.11 provides:
Scope and Purpose.
(a) The provisions of this Subpart B 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.
(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 discussion 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 to the application of the Construction Safety Act, but having no relevance to the application to the Occupational Safety and Health Act.
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Similarly when the Secretary adopted the Part 1915 standards as OSHA standards from the LHWCA he plainly set out at section 1910.13 that only the substantive safety and health provisions were adopted. The coverage limitations of the LHWCA were not adopted. n5 Therefore, although section 1915.1(b) still appears in the Secretary's published regulations, that section is without effect in OSHA proceedings. The coverage of the ship repair standards is governed by section 1910.13 -- a regulation broader in coverage than the LHWCA. The Secretary is empowered to extend the coverage of the LHWCA standards. Thus, the judge erred by determining the coverage of Part 1915 with reference to an antecedent standard instead of section 1910.13. Because the judge made no findings of fact or conclusions of law with respect to the alleged noncompliance with OSHA standards, we remand the case for further proceedings consistent with this opinion. n6 SO ORDERED.
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n5 § 1910.13 Ship repairing.
(a) Adoption and extension of established safety and health standards for ship repairing. The standards prescribed by Part 1501 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 ship repair or a related employment. Each employer shall protect the employment and places of employment of each of his employees engaged in ship repair or a related employment, by complying with the appropriate standards prescribed by this paragraph.
(b) Definitions. For purpose of this section:
(1) "Ship repair" means any repair of a vessel, including, but not restricted to, alterations, conversions, installations, cleaning, painting, and maintenance work;
(2) "Related employment" means any employment performed as an incident to, or in conjunction with, ship repair work, including, but not restricted to, inspection, testing, and employment as a watchman; and
(3) "Vessel" includes every description of a watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, including special purpose floating structures not primarily designed for, or used as a means of, transportation on water.
n6 Since his decision in this case Judge Larkin has retired. Accordingly, the remand of this case is to the Chief Judge for re-assignment.
We note that Judge Larkin did not rule upon the Respondent's arguments in support of the motion to dismiss. Upon remand the judge should consider those arguments, including the claim that OSHA jurisdiction over the cited working conditions is preempted by Coast Guard Regulation pursuant to § 4(b)(1) of the Act, 29 U.S.C. § 653(b)(1).
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