SECRETARY OF LABOR, Complainant, v. SCHIAVONE CONSTRUCTION COMPANY, Respondent. OSHRC Docket No. 80-0914 _DECISION _ Before: BUCKLEY, Chairman, and CLEARY, Commissioner. BY THE COMMISSION: This case is before the Occupational Safety and Health Review Commission on remand from the United States Court of Appeals for the Third Circuit. The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. § 659(c). At issue in this case is whether the administrative law judge properly affirmed three items of a citation issued to Schiavone Construction Company ("Schiavone") following the Secretary's inspection of a subway station construction project in Jamaica, New York, where Schiavone was engaged as the prime contractor. _Item 10: Electrical extension cord_ Citation-item 10 alleged that Schiavone violated section 1926.402(a)(8), which provides: Cable passing through work areas shall be covered or elevated to protect it from damage which would create a hazard to employees. At the hearing, the judge granted the Secretary's motion to alternatively plead a violation of section 1926.402(a)(11), which states: Extension cords shall be protected against accidental damage as may be caused by traffic, sharp corners, or projections and pinching in doors or elsewhere. The compliance officer testified that he observed electrical cords "strung along the floor in a haphazard manner." The cords were in damp locations or puddles of water approximately 1/2 to 3/4-inch deep and were covered by lumber and debris. Some of the lumber had protruding nails and employees working in the area of the cords at times stood on this lumber. In the compliance officer's opinion, electrical shock or burns could result if the wires became cut or frayed by the lumber or debris and contacted the water or employees. According to the compliance officer, this hazard could be avoided if the cords were elevated or placed in plastic tubing. Schiavone's witnesses testified that the cords were waterproof, heavy-duty extension cords that were made for use in construction work and could withstand "abrupt bangings" without being damaged if lumber were dropped or placed on them. The judge concluded that a serious violation of section 1926.402(a)(8) was established because "the electrical cable was in a pool of water and capable of causing electrical shock to [Schiavone's] employees." He also found that the cables presented a tripping hazard. He did not address the alternatively pleaded section 1926.402(a)(11) allegations. The parties now agree that the judge erred in applying section 1926.402 (a)(8) because section 1926.402(a)(11) more specifically addresses extension cords. Schiavone asserts that, although section 1926.402(a)(11) applies, there was no violation because that standard does not prohibit extension cords in water. Schiavone also contends that by using heavy-duty cords it complied with the standard's requirement that extension cords be protected against accidental damage. The Secretary asserts that the judge should have found a violation of section 1926.402(a)(11). The Secretary argues that although the judge did not expressly resolve whether the extension cords could be damaged, the judge "[i]n essence" credited the compliance officer's testimony that such damage could occur over the contrary testimony of Schiavone's witness. We agree that section 1926.402(a)(11) more specifically applies to the cited extension cords. The judge's finding of a violation of section 1926.402(a)(8) must therefore be set aside. We further conclude, however, that a violation of the extension cord standard was proven because the insulation of these cords could have been damaged by nearby lumber with protruding nails. The possibility of such damage, however, was remote because the extension cords were heavy duty and specifically made for the use to which they were put. The Commission has characterized violations as de minimis when the record establishes that the possibility of injury was too remote and too speculative to warrant the imposition of a penalty or the entry of an abatement order. Daniel Construction Co., 81 OSAHRC 107/D2, 10 BNA OSHC 1254, 1982 CCH OSHD ¶ 25,840 (No. 80-1224, 1981), aff'd, 692 F.2d 818 (1st. Cir. 1982). In view of the remote possibility of injury, this violation is found to be de minimis. Accordingly, citation-item 10 is modified to a de minimis notice. _Item 19: Underground fires in cut-and-cover excavations_. Citation-item 19 alleges a violation of 29 C.F.R. § 1926.800(e) (1) (ix), which states that, "[f]ires shall not be built underground." The question presented is whether this standard applies to a subway station built using the cut-and-cover method of construction. The first stage of the cut-and-cover method employed by Schiavone was the excavation of a large hole 1300 feet long, 65 feet wide and extending 65 feet down to the lowest level subway tunnel to be served by the station. The completed excavation was covered with wooden beams to allow a normal traffic flow on the surface. Both the standard and Subpart S of Part 1926, in which the cited standard is located, lack scope and application provisions. Subpart S is entitled "Tunnels and Shafts, Caissons, Cofferdams and Compressed Air;" section 1926.800 is entitled "Tunnels and Shafts." The standards in section 1926.800 use terms suggesting that they primarily were intended to apply "underground" and to "tunnels." The compliance officer observed three fires, one built in a 55-gallon drum and two built in smaller cans. Employees had built the fires for warmth. According to the compliance officer, the fires were hazardous because they could deplete the available oxygen in the subterranean cavity, create smoke, and trigger a large fire. Schiavone's witnesses testified that the drums containing the fires were located on a concrete deck at the bottom of the cavity, approximately 50-60 feet below the overhead timber. According to these witnesses, there was "no possible way" for the fires to consume the available oxygen because the cavity was ventilated by 5-7 ventilation grates in the overhead timber, at least 15 openings to the surface for concrete pours, 5-6 stairway openings to the surface, and the subway tunnels at either end of the worksite. These witnesses also testified that the metal drums were on concrete decks and presented no risk of spreading or exploding, and that, in contrast to a tunnel, ample means existed for emergency exit if a fire did occur. The administrative law judge, relying on his decision in a companion case, Schiavone Construction Co., OSHRC Docket No. 80-2731, found that the subway station in question was a "tunnel" and that Subpart S therefore applied. The judge based his ruling on the Commission's decision in Shea-Ball, A Joint Venture, 76 OSAHRC 133/A2, 4 BNA OSHC 1753, 1976-77 CCH OSHD ¶ 21,206 (No. 4892, 1976). In Shea-Ball, a divided Commission applied Subpart S to a cavity excavated under existing buildings that was to be used as a subway station. Schiavone and an amicus curiae, the General Contractors Association of New York, Inc., contend that the requirements of Subpart S, including its prohibition against underground fires, do not apply to the cut-and-cover method of excavation used by Schiavone, since the resulting excavation is entirely different from that of tunnels and presents no similar hazards. Schiavone contends that "tunnel" is a technical term of art that does not apply to cut-and- cover operations like Schiavone's and that, Shea-Ball is distinguishable because the method of construction used there was not cut-and-cover. The Secretary argues that Subpart S applies to the subway station here because it was "essentially a tunnel-like chamber." The Secretary further argues that he "has consistently taken the position that Subpart S regulations apply to cut-and-cover operations and clearly expressed his intent in OSHA Instruction STD 3-17.3...." Instruction STD 3-17.3 [[1]] states in pertinent part: In addition to Subpart P of 29 CFR 1926, Subpart S shall be applicable to any phase of cut-and-cover construction operations being conducted during, and as a part of, the construction of tunnels when a cover, temporary or permanent, extends over the top of a cut or excavation so as to create situations in which hazards, such as those existing in tunnel operations, may be present. Examples of applicable situations include those where there is limited access or egress of employees, the limited movement of air, and limited natural daylight illumination at the worksite. The Secretary argues that he is not required to prove that the fires presented a hazard because the standard unequivocally prohibits underground fires. The Secretary asserts alternatively that the judge correctly found that a hazard has been proved. Chairman Buckley and Commissioner Cleary disagree on the disposition of this item.[[2]] Like the judge, Commissioner Cleary would find the standard applicable to Schiavone's cut-and-cover operations. In Shea-Ball, the Commission fully considered whether the method of excavation of an underground cavity determines whether it is subject to section 1926.800. It clearly held that the method of excavation is irrelevant and that the standards apply to underground cavities, however created, in the shape of a tunnel, i.e., an enclosed, subsurface work area that is longer than it is wide. See 4 BNA OSHC at 1754-5, 1756, 1976-77 CCH OSHD at pp. 25,498-99, 25,500 (lead and concurring opinions). Moreover, while section 1926.800 frequently refers to "tunnels," it also employs the term "underground," indicating a broader application than to "tunnels" alone. Commissioner Cleary would therefore hold that this subway station, like that in Shea-Ball, was governed by the standard. A test that would apply the tunneling standards in piecemeal fashion, only to those hazards existing in the particular excavation, is unworkable. Such an approach would require employers to make innumerable decisions about excavations, applying tunneling standards in some instances while not in others. In Commissioner Cleary's view, there is no question that Schiavone violated the standard's prohibition against underground fires by allowing fires to be built in metal cans. The judge found that overhead lumber and lumber strewn on the ground near the cans increased the possibility that a fire could spread. The record, however, shows that the overhead timbers, which formed the roof of the cavity, were located approximately 60 feet above these cans. The record also shows that the scrap lumber on the ground was not in close proximity to the fire and was being cleaned up by Schiavone's crew. There were also 5-7 ventilation grates in the overhead timber, at least 15 openings to the surface for concrete pours, 5-6 stairway openings to the surface and subway tunnels at both ends of the station. In view of the remoteness of the possibilities that the fire would ignite this lumber and spread throughout the worksite, or would deplete the available oxygen, Commissioner Cleary would characterize this violation as de minimis. Chairman Buckley would vacate this citation-item because he finds that section 1926.800(e)(1)(ix) does not apply to Schiavone's operation. The issue before the Commission is a simple question of statutory construction. Whether the provisions of 29 C.F.R. § 1926.800, entitled "Tunnels and Shafts," apply to Schiavone's cut-and-cover operation depends on whether the cited area was a "tunnel" within the meaning of the standard. In interpreting standards, the Commission must follow the rules of statutory construction. Ohio-Sealy Mattress Mfg. Co., 83 OSAHRC 27/C14, 11 BNA OSHC 1377, 1380-81, 1983-84 CCH OSHD ¶ 26,528, p. 33,805 (No. 79-5600, 1983). The object of statutory construction is to determine and give effect to the intent of the lawmakers who enacted it. See, e.g., National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458 (1974); 2A C. Sands, ed., Sutherland on Statutory Construction § 45.05 (4th ed. 1973). "There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes." Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982), quoting United States v. American Trucking Assns., 310 U.S. 534, 543 (1940). Schiavone asserts that the term "tunnel" has a commonly understood meaning in its industry that does not include cut-and-cover operations. The amicus brief notes that tunnels had been excavated radiating out from the cited station, arguing that even a non-technical interpretation of the standard's language suggests that subway stations are not tunnels. The Secretary counters that the term does not have a restrictive meaning and may fairly encompass Schiavone's operation. [[3]] Assuming arguendo the validity of the Secretary's argument that "tunnel" does not have a restrictive, technical meaning and that a subway station can be considered a tunnel, there remains an issue as to what excavations not commonly defined as tunnels were intended to be included within the scope of the standard. Both parties refer the Commission to the Secretary's interpretation of the standards issued in 1979 as a guide to the scope of the regulation and to support their contrary conclusions. Indeed, the Secretary acknowledges that Instruction STD 3-17.3 exactly sets forth the intended scope of the standard. Accepting the plain language of Instruction STD 3-17.3 as an indication of the intent of the Secretary leads to the conclusion that Subpart S was not intended to apply to cut-and-cover operations unless "a cover ... create[s] situations in which hazards, such as those existing in tunnel operations, may be present." (Emphasis supplied.)[[4]] Yet, those hazards do not exist here. Section 1926.800(e), in which the cited standard appears, is entitled "Fire prevention and control." The Secretary argues that the prohibition against underground fires in section 1926.800(e)(1)(ix) is aimed at preventing the hazards that arise from uncontrolled fire and from smoke in tunnels and shafts. The only evidence that the fires contained in the metal drums posed a hazard was elicited from the compliance officer. In his view, the fires were hazardous because they would deplete the available oxygen in the cavity. Inasmuch as the record shows that fresh air was supplied to the cavity by the subway tunnels located at either end of the station, and by a series of ventilation grates and other openings to the surface, the compliance officer's opinion as to the hazard of oxygen depletion is unfounded. The compliance officer also considered the fires hazardous because they could trigger a larger fire in the cavity. Here again, however, the record shows otherwise. It was highly unlikely that the cited fires would ignite timbers 60 feet overhead. The scrap lumber in the area was not close enough to the fire to be ignited. The record also shows that, unlike a tunnel created by classic tunneling methods, this cavity had several exits to the surface and into tunnels that would allow employee escape should it become necessary. Chairman Buckley would therefore find that the evidence does not establish the existence here of a hazard similar in kind or magnitude to the hazards present in tunnels and would hold that the standard was not intended to and does not apply here. In view of the Commissioners' divergent views on the merits, Chairman Buckley joins with Commissioner Cleary in affirming this violation as de minimis in order to allow the parties to conclude this litigation. See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ¶ 22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979); Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir. 1980) (affirmance of administrative law judge's decision by equally divided Commission constitutes final, reviewable order). _Item 15: Guardrails _Item 15 of the citation alleged the following violations of the guardrail standard, 29 C.F.R. § 1926.500(f)(1)(iv),[[5]] at four different locations at the worksite: The anchoring of posts and framing of members for railings was not of such construction that the completed structure was capable of withstanding a load of at least 200 pounds applied in any direction at any point on the top rail with a minimum of deflection. . . . At the hearing, the judge granted a motion by the Secretary to amend item 15 to allege in the alternative a violation of section 1926.500(f)(1)(i).[[6]] Item 12 of the same citation alleged that Schiavone violated a different guardrail standard, section 1926.500(b)(1), at five locations. Section 1926.500(b)(1) requires that floor holes be guarded by "a standard railing and toeboards or cover." Schiavone contested item 12 but later withdrew its notice of contest as to that item.[[7]] The locations of at least three of the violations cited in item 15 are the same as those cited in item 12. The compliance officer testified that the midrails of guardrails at three of the cited locations were made of 1x4's instead of 1x6's. He also testified that at a fourth location, 1x4's were used as toprails and were nailed to the tops of pallets. According to the compliance officer, the pallets were not fastened to the concrete. When he pushed the toprail at this location, he concluded that the rail could not withstand 200 pounds of pressure as required by section 1926.500(f)(1)(iv). The compliance officer conceded that some of the guardrail locations cited in item 12 also were cited in item 15, but noted that item 12 concerned areas where there were no guardrails or covers, while item 15 was directed to the inadequate construction of guardrails that were in place. Several of Schiavone's witnesses testified that the railings in the cited areas were actually constructed of 2x6's and not 1x4's as claimed by the compliance officer. They also testified that the pallets supporting the railing were fastened to the concrete floor. The judge found that section 1926.500(f)(1)(iv) had been violated and affirmed item 15. Although the judge summarized the evidence pertaining to both sections 1926.500(f)(1)(i) and (iv) at all locations, he did not expressly find that Schiavone had violated subsection (i) by using undersized lumber at three of the four locations. His discussion focussed on subsection (iv) of the standard and on the location where 1x4's were alleged to have been used as toprails. The judge relied on the compliance officer's testimony that he could shake the rail and on a photograph of that location. The judge found a violation but modified the item, finding that it was other than serious, and assessed no penalty. Schiavone argues that items 15 and 12 should have been merged because a violation of the "overall railing regulation" at the same locations cited in item 15 was established when they withdrew their notice of contest as to citation-item 12. Schiavone submits that it would be duplicative to find that the guardrails cited in item 15 could not withstand the 200-pound force when it had conceded that "standard railings" were not in place at the same locations. According to Schiavone, the judge's resolution of this item was colored by his mistaken belief that item 12 had been withdrawn by the Secretary. The Secretary asserts that the judge did not err in declining to merge items 15 and 12 because the conditions cited in each item were dissimilar and because abatement of the conditions cited in item 12 would not correct the deficiencies cited under item 15. The Secretary also suggests that, although the condition cited at the second location in item 15 was properly found to be a violation of section 1926.500(f)(i)(iv), the judge's decision should be modified because Schiavone's use of undersized lumber at three cited locations violated section 1926.500(f)(1)(i) and not section 1926.500(f)(1)(iv), as found by the judge. Chairman Buckley and Commissioner Cleary disagree on whether item 15 should be affirmed or vacated. Commissioner Cleary would affirm the judge's disposition of item 15. He notes that in neither its post-hearing brief before the judge, its petition for discretionary review before the Commission, nor its brief on remand did Schiavone argue that violations of sections 1926.500(f) (1)(i) and (iv) were not established. It argued only that the violations alleged in items 12 and 15 are duplicative. In its order of May 10, 1983, the Commission stated that it would "consider all issues raised by the petition to the Commission for discretionary review." Commissioner Cleary therefore concludes that whether violations of either standard occurred is not before the Commission. Commissioner Cleary would reject Schiavone's argument that item 15 should be vacated because it is duplicative of item 12. The hazard addressed in item 15 was the inadequacy of the construction of guardrails that were in place. On the other hand, the hazard addressed in item 12 was the total absence of guardrails or the absence of required components of guardrails, such as toeboards and midrails. Employers are required to comply with and may be cited for violations of all standards applicable to a hazardous condition even though a single action may bring the employer into compliance with all of the violated standards. H.H. Hall Construction Co., 81 OSAHRC 91/D12, 10 BNA OSHC 1042, 1046, 1981 CCH OSHD ¶ 25,712, p. 32,056 (No. 76-4765, 1981). Allowing the abatement requirement of item 15 to stand therefore cannot be unfair to Schiavone. As to penalties, the Commission has discretion to assess a consolidated penalty to prevent any unfairness. Id. Yet, the Secretary has not sought and the judge did not assess a penalty for the violations alleged in item 15. Accordingly, Commissioner Cleary would not vacate item 15 on the duplicativeness ground argued by Schiavone. Chairman Buckley would vacate this item. In Chairman Buckley's view, the merits of the alleged violation clearly are before the Commission. The Third Circuit's order specifies that "the entire case" is remanded to the Commission for its consideration. Schiavone Construction Co. v. Donovan, No. 81-2017, (3d Cir. October 30, 1981). As with a case in which review is directed by a Commissioner, the entire "report of the hearing examiner" is "reviewed by the Commission." See section 12(j) of the Act, 29 U.S.C. § 661(i).[[8]] Schiavone argued at the hearing that this citation item was issued as a result of the compliance officer's mistaken belief that all parts of a guardrail must withstand a 200-pound load, and not just the top rail as the standard specifies. In the Chairman's view, the compliance officer's testimony that he could shake the guardrail does not establish that it could not withstand the load of 200 pounds specified in section 1926.500(f)(1)(iv). The record otherwise contains no evidence that the guardrail was tested to determine whether it could withstand such a load. Accordingly, Chairman Buckley would reverse the judge's ruling that a violation of section 1926.500(f)(1)(iv) was established at the second location. As to the Secretary's alternative allegation that Schiavone violated section 1926.500(f)(1)(i) by using undersized lumber for its guardrails at three locations, the Chairman also would find that a violation was not proven. Although the judge neither addressed this question nor resolved the conflict in the testimony as to whether the cited guardrails were constructed with undersized lumber, the Commission has the authority to address this question for the first time on review. See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1298, 1977-78 CCH OSHD ¶ 22,481, p. 27,100 (No. 14249, 1978). The compliance officer testified that he observed 1x4 pieces of lumber at locations where the standard requires 1x6's. He conceded that at one location he did not measure the lumber, and it is unclear from his testimony whether measurements were made at the other locations. Several of Schiavone's witnesses who worked at the site and were familiar with the construction of the guardrails testified that the allegedly undersized guardrails were actually 2x6's, which would comply with the standard. In view of the consistent testimony of Schiavone's better informed witnesses, Chairman Buckley concludes that the Secretary failed to prove that undersized lumber was used. Since the Secretary failed to prove a violation of either standard, Chairman Buckley would vacate this item. In sum, the Commissioners modify item 10 to a de minimis notice. They are divided on whether the judge erred in affirming violations of items 15 and 19. Under section 12(f) of the Act, 29 U.S.C. § 661(e), official action can be taken by the Commission with the affirmative vote of at least two members. To resolve their impasse and to permit this litigation to proceed to a conclusion, they have agreed to affirm the finding of a violation with respect to items 15 and 19 and agree to modify item 19 to a de minimis notice. The judge's decision as to items 15 and 19 is accorded no precedential value. See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ¶ 22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979). FOR THE COMMISSION RAY H. DARLING, JR. EXECUTIVE SECRETARY DATED: DEC 19 1984 ------------------------------------------------------------------------ The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ) telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386). FOOTNOTES: [[1]] Instruction STD 3-17.3, previously designated by OSHA as Instruction STD 3.1, originally was issued on December 10, 1979, before this inspection. On March 8, 1982, Instruction STD 3.1 was re-numbered as Instruction STD 3-17.3 but not otherwise amended. 1981-82 CCH Developments Binder ¶ 12,482. According to the Instruction, clarification of the standard was needed because "[t]he construction of major new subways, subway stations and tunneling systems has resulted in frequent application of cut-and-cover construction on such projects. Frequent confusion regarding the application of the construction standard, 29 CFR 1926, Subparts P and S, has been prevalent." Id. at p. 15,786. [[2]] As established by the Act, the Commission is composed of three members. Section 12(a) of the Act, 29 U.S.C. § 661 (a). Currently, the Commission has two members, as the result of a vacancy. [[3]] It is well settled that a word commonly used as a term of art in a particular discipline should be construed accordingly where the statute or regulation being construed applies to the particular discipline. See, e.g., United States v. Cuomo, 525 F.2d 1285, 1291 (5th Cir. 1976) and cases cited therein; 2A C. Sands ed., Sutherland on Statutory Construction §§ 45.08 at 23, 47.27 at 137, 47.29 at 150 (1973). Schiavone's argument is persuasive that the term tunnel, as understood in the industry, does not encompass cut-and-cover excavations. Similarly, the Secretary has consistently drawn a distinction between cut and cover excavations and "tunnel operations," suggesting that the common understanding of the word tunnel does not include such excavations. However, it is unnecessary to speculate whether the term is inapplicable to any underground chamber excavated by the cut-and-cover method, because it is clear from the record that the regulation was never intended to apply to an operation such as Schiavone's in this case. [[4]] Both parties' arguments misinterpret the significance of Instruction STD 3-17.3. Contrary to Schiavone's argument, it is not a regulation and confers no rights or liabilities. It is significant, however, as an indication of the Secretary's intent in issuing Subpart S, given the Secretary's position in this case that the instruction is a precise summary of the standard's reach as envisioned by the drafters. Post-adoption statements of intent are not dispositive, but may be accepted as an aid in interpreting a standard, particularly where, as here, both parties agree that the instruction is a useful guide to the Secretary's interpretation of the standard. [[5]] Section 1926.500(f)(1)(iv) states: The anchoring of posts and framing of members for railings of all types shall be of such construction that the completed structure shall be capable of withstanding a load of at least 200 pounds applied in any direction at any point on the top rail, with a minimum of deflection. [[6]] Section 1926.500(f)(1)(i) states: For wood railings, the posts shall be of at least 2-inch by 4-inch stock spaced not to exceed 8 feet; the toprail shall be of at least 2-inch by 4-inch stock; the intermediate rail shall be of at least 1-inch by 6-inch stock. [[7]] In his decision, the judge erroneously stated that item 12 of the citation was withdrawn when, in fact, Schiavone had withdrawn its notice of contest of this item. [[8]] In its discretion the Commission may request briefs on all, or only some, aspects of a judge's decision and may limit its review and decision to certain aspects of the case. See Commission Rules 92(c) and 93(a), 29 C.F.R. §§ 2200. 92(c) and 2200.93(a). This is, however, a matter of judicial economy and not a jurisdictional bar.