SECRETARY OF LABOR
Complainant,
v.
SIMPSON, GUMPERTZ & HEGER, INC,
                                                                                                            
Respondent.

Docket No. 89-1300
*
DECISION *

BEFORE: FOULKE Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

In this case we are asked to decide whether an engineering company
having a contract to provide design and consulting services for the
architect at a building site is subject to the standards set forth in 29
C.F.R. Part 1926, which is entitled "Safety and Health Regulations for
Construction." For the reasons that follow, we reject the Secretary's
premise that Respondent. Simpson, Gumpertz & Heger, Inc. ("SGH"), is
engaged in construction work within reach of Part 1926, and we affirm
the order of Administrative Law Judge Richard DeBenedetto granting
summary judgment in favor of SGH.

*I. INTRODUCTION*


This case arose following an accident during the construction of the
Fuller Laboratories building for Worcester Polytechnic Institute in
Worcester, Massachusetts. On December 13, 1988 a portion of the metal
decking which served as formwork to support the concrete flooring
collapsed as the concrete was being poured. The area which collapsed was
an area where the contract specifications called for two layers of
concrete with a layer of styrofoam insulation in between. SGH was cited
for serious violations of the Occupational Safety and Health Act of
1970, 29 U.S.C.§ 651-678 ("the OSH Act" or "the Act") for failing to
comply with two standards set forth in Subpart Q of Part 1926, "Concrete
and Masonry Construction." The Secretary alleged that the decking was
not capable of supporting the double pour of concrete and the insulation
layer, contrary to 29 C.F.R. § 1926.703(a)(1), and that SGH had failed
to make available at the jobsite drawings or plans for providing
sufficient shoring to support the decking, contrary to 29 C.F.R. §
1926.703(a)(2).[[1]] SGH contended that these standards are inapplicable
because it does not perform construction work. Amici curiae briefs were
also received from the American Consulting Engineers Council, the
National Society of Professional Engineers, and the American Institute
of Architects, who argued in support of SGH's position.

Before the judge, the Secretary argued that SGH is subject to the
construction standards in the particular circumstances presented here
because it gave advice and instruction to the general contractor,
Francis Harvey & Sons, regarding the provision of shoring and the
performance of the concrete pour. As a result, SGH, in the Secretary's
view, created or was otherwise responsible for the resulting hazardous
conditions. The Secretary renews this argument before us on review but
also contends that design engineers such as SGH are engaged in
construction work as a matter of course because the activities they
contract to perform are inseparable from construction operations. We
will first address the question of whether the activities which
engineers such as SGH usually undertake at a construction job constitute
construction work. [[2]]

*II. CUSTOMARY DUTIES OF A DESIGN OR CONSULTING ENGINEER
*

SGH's contract is illustrative of the kinds of duties performed by
design or consulting engineers at construction projects. SGH contracted
with the building architect. Payette Associates, using a form published
by the American Institute of Architects. AIA Document C141, Standard
Form of Agreement Between Architect and Engineer.[[3]] With the
exception of a few provisions added by the two parties, their contract
consists entirely of the standard form language set forth document.
Essentially, SGH agreed to provide "professional services which
[Payette] is required to provide to the Owner" under Payette's separate
agreement with the building owner. These services can be divided into
two major categories. First, SGH was required to prepare necessary
contract drawings and specifications in accordance with local codes and
regulations" and subject to the approval of the architect and owner. The
contract provided that SGH would work with the architect from the
inception of the building design, preparing the initial "schematic
design studies," followed by "drawings and other documents to fix and
describe ... the Project, including materials, equipment, component
systems and types of construction as may be appropriate," and finally,
drawings and specifications "setting forth in detail the requirements
for the construction." These detailed documents for the actual
construction were required to "be adequate for the construction and ...
provide a facility which is fit for the purpose intended and meets the
functional requirements described in the Owners' program." The contract
also provided that f the architect so required, SGH would aid the
architect and the owner in obtaining and evaluating bids for the project
and in preparing and awarding the actual construction contract
themselves. Articles 1, 17.5.

Second, SGH was to undertake certain measures to ensure that the work
performed by the made contractors conformed to both the requirements of
the construction contracts themselves and "applicable local codes and
regulations" regarding the "structural adequacy" of the masonry  and
other components of the completed building. Specific duties imposed on
SGH during this "Construction Phase" of the project include the duty to
make on-site inspections; to certify what amounts are due to the general
contractor for the completion of work; and to assist in resolving
disputes between the owner and contractor, determining whether the work
is acceptable, and preparing changes in the work plan. Article 1.2.[[4]]

The contract also contained a general stipulation that SGH would not be
responsible for the Acts or omissions of the Architect, the Architect's
other consultants, the Contractor, any Subcontractors, any of their
agents or employees, or any other persons performing any of the Work"
This disclaimer cross-referenced other clauses stating that SGH
"shall...review the program furnished by the Owner and/or the Architect
and shall confirm the understanding of these requirements and other
design parameters with the Owner and Architect" and that SGH "shall
review his work with the Owner and Architect for compliance with the
Owner's program and/or the Architect's program directions." Articles
1.1.7, 17.2-3. That portion of the contract dealing with the
construction phase set forth additional limitations on the scope of
SGH's responsibilities:

1.2.13 The Engineer shall not have control or charge of, and shall not
be responsible for, construction means, methods, techniques, sequences
or procedures, for safety precautions and programs in connection with
the Work, for the Acts or omissions of the Contractor, Subcontractors or
any other persons performing any of the Work, or for the failure of any
of them to carry out the Work in accordance with the Contract Documents.

1.2.20 The Engineer shall review and approve, or take other appropriate
action upon, and furnish to the Architect for final disposition the
Contractor's submittals such as Shop Drawings, Product Data and Samples
with respect to this Part of the Project; but only for conformance with
the design concept of the Work and with the information given in the
Contract Documents.

The relationship between the architect and the owner is described in
American Institute of Architects, AIA Document A201, General Conditions
of the Contract for Construction. This agreement does not state any
responsibilities of the engineer but provides for the following
responsibilities of the "Contractor," i.e., the general contractor:

4.3 SUPERVISION AND CONSTRUCTION PROCEDURES

4.3.1 The Contractor shall supervise and direct the Work, using his best
skill and attention. He shall be solely responsible for all construction
means, methods, techniques, sequences and procedures and for
coordinating all portraits of the Work under the Contract.

4.3.2 The Contractor shall be responsible to the Owner for the acts and
omissions of his employees. Subcontractors and their agents and
employees, and other persons performing any of the Work under a contract
with the Contractor.

"The Work" is defined as "the completed construction required by the
Contract Documents and includes all labor necessary to produce such
construction, and all materials and equipment incorporated or to be
incorporated in such construction." Article 1.1.3.

lll. FACTORS PERTAINING TO THE DEFINITION OF "CONSTRUCTION WORK"

A. General

Judge DeBenedetto concluded that this case is controlled by the existing
Commission precedent of Skidmore, Owings & Merrill, 5 BNA OSHC
1762,1977-78 CCH OSHD ¶22,101 (No. 2165, 1977) ("SOM"). In SOM, the
Commission held that an architectural and engineering firm retained by
Sears, Roebuck to inspect the construction work for the Sears Tower
project in Chicago and to ensure that it complied with Sears' design
specifications was not engaged in construction work under Part 1926. The
Commission reasoned that considering "the realities of the construction
industry," the Part 1926 standards apply only to an employer who
"perform[s] actual construction work or exercise[s] substantial
supervision over actual construction." Id at 1764, 1977-78 CCH OSHD at
p. 26,627. For the reasons that follow, we adhere to the "substantial
supervision" test we articulated in SOM, and we agree with the judge
that SGH did not exercise substantial supervision over construction work
within the meaning of SOM.

In arguing that professionals such as SGH are deemed to be engaged in
construction work, the Secretary essentially asks us to reach the same
result in this case as the Commission did in two cases which proceeded
SOM, Bechtel Pwr Corp., 4 BNA OSHC 1005,1975-76 CCH OSHD 20,503 (No.
5064, 1976). aff'd per curiam, 548 F.2d 248 (8th Cir.1977) ("Bechtel")
and Bertrand Goldberg Assocs., 4 BNA OSHC 1587, 1976-77 CCH OSHD ¶20,995
(No.11645, 1976) ("Bertrand Goldberg"). Those cases involved
construction managers, that is, companies hired by the building or
project owner to administer and coordinate the construction work.
Although construction managers perform no actual construction tasks,
they have considerable authority over the performance of the work and
the safety measures implemented by the subcontractors. See SOM, 5 BNA
OSHC at 1764, 1977-78 CCH OSHD at p. 26,626 (construction managers act
in a capacity similar to that of a general contractor) In concluding
that construction managers are covered by the construction standards in
Part 1926, the Commission reasoned that their administrative and
supervisory functions are "inextricably intertwined with the actual
physical labor" and that consequently their activities on the jobsite
are "so directly and vitally related to the Construction being
performed" that they are engaged in construction work within the meaning
of the construction standards. Bechtel, 4 BNA OSHC at 1006, 1975-76 CCH
OSHD at p. 24,499; Bertrand Goldberg, 4 BNA OSHC at 1589,1976-77 CCH
OSHD at 25,220. In SOM, however, the Commission distinguished the
functions performed by the architectural and engineering firm involved
in that case from the duties of a construction manager, concluding that
"while SOM exercises some supervision over construction we would not
characterize it as substantial in the sense that supervision by a
construction manager is substantial." 5 BNA OSHC at 1764, 1977-78 CCH
OSHD at p. 26,627. See Cauldwell-Wingate Corp., 6 BNA OSHC 1619, 1621,
1978 CCH OSHD ¶22,729, p. 27,436 (No. 14260, 1978) (applying test of
"substantial supervision over actual construction" in determining
whether a construction manager is subject to the construction standards).

The Secretary contends that design or consulting engineers such as SGH
are engaged in construction work because the functions they perform are
a necessary part of the construction project in question. In the
Secretary's view, SOM was wrongly decided to the extent it holds that
design and engineering professionals are not subject to the construction
standards unless they substantially supervise the performance of the
construction work at the jobsite. We reject that argument for several
reasons. At the outset, we conclude that the history of the promulgation
of the Part 1926 standards demonstrates that SGH's activities do not
constitute construction work within the meaning of Part 1926.

*B. History and Application of part 1926 Ad
*

As the secretary notes, she originally promulgated the standards in Part
1926 under the authority of the Contract Work Hours and Safety Standards
Act 40 U.S.C. § 327-333, popularly known as the Construction Safety Act
("CSA"). Bechtel, 4 BNA OSHC at 1007, 1975-76 CCH OSHD at 24,499. The
pertinent section of the CSA. section 107 (a), 40 U.S.C. § 333(a) states
as follows.

It shall be a condition of [Federal or Federally-funded contracts] for
construction, alteration and/or repair, including painting and
decorating, that no contractor or subcontractor contracting for any
portion of the contract work shall require any laborer or mechanic
employed in the performance of the contract to work in surroundings or
under working conditions which are unsanitary, hazardous, or dangerous
to his health or safety, as determined by construction safety and health
standards promulgated by the Secretary...

The standards originally promulgated under the CSA were then adopted as
standards under the OSH Act by section 1910.12,[[5]] which provides:

§ 1910.12 Construction work.

(a) Standards. The standards prescribed in Part 1926 of this chapter are
adopted as occupational safety and health standards under section 6 of
the Act and shall apply, according to the provisions thereof, to every
employment and place of employment of every employee engaged in
construction work. Each employer shall protect the employment and places
of employment of each of his employees engaged in construction work by
complying with the appropriate standards prescribed in this paragraph.

(b) Definition. For purposes of this section, Construction work means
work for construction, alteration, and/or repair, including painting and
decorating. See the discussion of these terms In § 1926.13 of this title.

The referenced section, 29 C.F.R. § 1926.13, is entitled "Interpretation
of statutory terms." Section 1926.13(a) explains that "contractor" and
"subcontractor," which appear in section 107 of the CSA and
"construction," "alteration," and "repair," which are used in section
1910.12(b) as well in the CSA are common terms customarily found in
statutes dealing with Federal or Federally funded construction contracts:

The terms "construction," "alteration," and "repair" used in section 107
of the Act are also used in section 1 of the Davis-Bacon Act (40 U.S.C
276a), providing minimum wage protection on Federal construction
contracts, and section 1 of the Miller Act (40 U.S.C 270a), providing
performance and payment bond protection on Federal construction
contracts. Similarly, the terms "contractor" and "subcontractor" are
used in those statutes, as well as in the Copeland (Anti-Kickback) Act
(40 U.S.C. 276c) and the [CSA] itself, which apply concurrently with the
Miller Act and the Davis-Bacon Act on Federal construction contracts and
also apply to most federally assisted construction contracts. The use of
the same or identical terms in these statutes which apply concurrently
with section 107 of the [CSA] have considerable precedential value in
ascertaining the coverage of section 107.

Section 1926.13(c) defines "subcontractor" as "a person who agrees to
perform any part of the labor or material requirements of a contract for
construction, alteration or repair." In addition, the terms "employee"
and "employer", which also are used in the CSA, are defined in section
1926.32, which in turn refers to the Davis-Bacon Act, 40 U.S.C. § 276a,
the statute dealing with wage rates for "Iaborers and mechanics" on
Federal construction contracts. It is clear from the definition sections
of the CSA and definitions under the referenced Davis-Bacon Act that the
standards enacted under the CSA are directed to the performance of the
actual physical craft labor at a construction site and do not apply to
those whose functions are administrative or professional in nature.[[6]]

In her reply brief before us, the Secretary acknowledged that when she
promulgated section 1910.12 adopting the CSA standard under the OSH Act,
she alluded to the definitions set forth in the CSA standard at section
1926.13. The Secretary further that when originally adopted under the
CSA, the standards were limited to the argument, however counsel for the
Secretary contended that because OSH Act applies generally to all
employees of all employers, the CSA standards were adopted under the OSH
Act, they were no longer subject to that may have existed under the CSA.
In the Secretary's view, the provisions of Part 1976 and regulations
promulgated under other statutes referred to in Part 1926, including the
definition of "laborer" and "mechanic",cannot be used to limit the scope
of the OSH Act or the standards enforced through it.


It is beyond question that the CSA was enacted under the limited
contracting power of the Federal government whereas the OSH Act is based
on the broad authority of the Commerce Clause to regulate all employers
whose business affects interstate commerce. Sections 2(b) and 3(5) of
the Act, 29 U.S.C. §§ 651(b) and 652(5). As the Secretary correctly
stated in section 1910.11 (a), "[t]he provisions of this subpart ...
adopt[,] and extend the applicability of, established Federal standards
... with respect to every employer, employee, and employment covered by
the Act." Clearly, language restricting the CSA to contractors and
subcontractors and to laborers and mechanics has no bearing in
determining whether a particular employer is subject to the enforcement
of standards under the OSH Act See Brock v. Cardinal Indus., 828 F.2d
373,377 n.7 (6th Cir. 1987). That, however, is not the issue before us
here. The question in this case is a much narrower ones whether the
particular work activities in which SGH is engaged constitute
construction work within the meaning of section 1910.12 so as to come
within the scope of the Part 1926 standards. See Id. at 378 n.8.

In deciding an issue analogous to that presented here, the Sixth Circuit
in Cardinal Industries relied on the definition and scope provisions of
Part 1926 and the Davis-Bacon Act regulations in holding that an
employer who manufactures modular housing units at a facility having no
physical connection with a construction site is not governed by the
construction standards. The court emphasized the stipulation in section
1926.13 that the use of common terminology in statutes dealing with
Federal or Federally-funded construction projects has "considerable
precedential value" in determining the scope of the CSA. Noting the
Secretary's own cross-reference in section 1910.12(b) to section
1926.13, the court reasoned that the interpretation of the terms
"construction, alteration, and repair" conveyed by those statutes should
concomitantly be considered precedent for defining "construction work"
under section 1910.12. Id. at 377.[[7]]

Cardinal Industries, furthermore, is consistent with the general
principal that standards containing broad or undefined terms may be
given meaning by reference to other standards Vanco Constr., Inc.11 BNA
OSHC 1058, 1061, 1983-84 CCH OSHD ¶26,372, p. 33,454 (No. 79-4945, 1982)
aff'd, 723 F.2d 410 (5th Cir. 1984). The purported definition set forth
in 1910.12 (b). "Construction work means work for construction,
alteration, and/or repair" in fact does not explain what is meant by
"construction work." See Nationwide Mut. Ins. Co. v Darden, 112 S. Ct
1344, 1346, (1992) ("nominal" definition of "employee" in the ERISA law,
29 U.S.C § 1002(6), as "any individual employed by an employer," sets
forth no actual definition because it is "completely circular").
Accordingly, resort to other regulatory provisions is appropriate to
give meaning to a term that would otherwise be vague. Gold-Kist, Inc. 7
BNA OSHC 1855, 1859-60, 1980 CCH OSHD ¶24,205, p. 29,433 (No. 76-2049,
1979). See Darden, 112 S. Ct.at 1848 (other statutory provisions may
give guidance on the meaning of an otherwise undefined term or suggest
principles by which the term can be construed); cf. Hughes Bros., 6 BNA
OSHC 1830, 1833, 1978 CCH OSHD ¶22,909, p. 27,717 (No. 12523, 1978)
(regulatory provisions are to be read as a coherent whole).


As the amici correctly observe in their brief before us, the Secretary
herself agrued to the Sixth Circuit in Cardinal Industries that
regulations under the CSA and Davis-Bacon Act should be accepted as
"controlling precedent" in defining what constitutes "construction work"
under the Part 1926 standards. Secretary's brief at 13, 15, Cardinal
Industries (attachment "B" to the amici brief). As the Secretary there
stated, "whether the Part 1926 standards apply depends on the
interpretation of the Construction Safety Act, which in turn depends
largely on whether the work at issue is considered construction work
under the Davis-Bacon Act" Id at 18. Similarly, in her petition for
rehearing of the decision in Cleveland Elec. Illuminating Co., 910 F.2d
1333 (6th Cir. 1990), the Secretary also relied on a regulation defining
the term defining the term "site of the work" used in the Davis-Bacon
Act and decisions of the Wage Appeals Board, which reviews wage
determinations issued under the Davis-Bacon Act, to support her argument
that an employer's program for training its construction employees was
covered by Part 1926 even though the training did not take place at the
actual site of the construction activities. Secretary's petition for
reh'g at 6-9, Cleveland Electric (attachment "D" to the amici brief).
See National Engg. & Contract Co. v. OSHRC, 838 F.2d 815. 817-18 (6th
Cir. 1987) (Secretary cites regulations under the Davis-Bacon Act to
support contention that installation of a valve as part of a project to
upgrade and expand a waste treatment plant is construction work).


Indeed, in other cases the Secretary has contended that the definition
provisions of the CSA standards should be applied in determining the
scope of the substantive standards in Part 1926. For instance, in Ed
Taylor Constr. Co., 15 BNA OSHC 1711, 1714-16, 1992 CCH OSHD ¶29,764,
pp. 40,479-81 (No. 88-2463, 1992), the Secretary asserted, and the
Commission agreed, that the definition of "competent person" set forth
in section 1926.32(f) should be read into section 1926.20(b)(2), which
requires that the employer institute safety programs that provide for
inspections to be conducted by "competent persons designated by the
employers." See also Capform, Inc.,13 BNA OSHC 2219, 1987-90 CCH OSHD
¶28,503 (No. 84-556, 1989) (definition of "competent person" in
1926.32(f) applied in determining whether the Secretary satisfied her
burden of proof under a standard requiring inspection of excavations by
a "competent person"). Although we recognize that these cases deal with
the definition of terms in the substantive standards with which
employers must comply under the Act, we see no conceptual difference
between applying the definition and interpretative provisions of Part
1926 to elucidate the requirements of the substantive safety and health
standards within that Part and using those same provisions to ascertain
the general scope and applicability of Part 1926. In the first instance,
the definitional and interpretive provisions define the employer's
obligations under a specific standard, in the latter instance, they
determine more generally the employer's duty to comply with the entirety
of Part 1926.


We also note that although the Secretary generally provided in section
1910.11(b) that "interpretative rules" set forth in Part 1926 are not
incorporated by reference in section 1910.12, see supra note 7, she
expressly incorporated the definition of Part 1926 when she amended
Subpart Q, containing the concrete and masonry standards at issue here.
As part of an extensive revision of these standards, the Secretary
modified the original provision containing definitions of terms used in
Subpart Q. 53 Fed. Reg. 22,612, 22,643 (1988). "In addition to the 
definitions set forth in § 1926.32, the following definitions apply to
this subpart." (Emphasis added.) The terms "employer" and "employee" are
among those used in Subpart Q which are defined in section 1926.32.[[8]]
We view section 1926.700(b) as indicating that the Secretary herself
perceives that while the scope of the CSA itself may not be an issue
under the OSH Act, the definition and interpretation provisions of Part
1926 are relevant to the extent they define the meaning and
applicability of the safety and health requirements set forth in Part 1926.


*C. General Nature of Activities on a Construction Site
*

Our conclusion that professionals such as SGH cannot be held subject to
the construction standards based solely on the fact that they have a
relationship to the overall construction project, without regard to the
specific kinds of work activities in which they engage, finds support
also in the policy considerations that arise in an analogous context
dealing with the allocation of responsibility among various employers on
multi-employer construction worksites. As a general proposition, the Act
reflects the understanding of Congress that its objectives are best
effectuated by placing the responsibility for complying with standards
and abating hazardous conditions on the employers or the exposed
employees on the premise that the employer has the primary control over
the work environment. Anning-Johnson Co., v. OSHRC, 516 F.2d 1081, 1088
(7th Cir. 1975). At the same time, however, subcontractors at
construction worksites normally are limited to the particular trade
crafts for which they have been hired and, as a result, they may not as
a practical matter be in a position to correct the hazardous conditions
to which their employees are exposed. ld.

Accordingly, to Commission and the courts hold that a subcontractor who
does not have the requisite power and authority over the conditions in
question will be excused from responsibility for those conditions if it
takes alternative measures to protect its employees, such as asking the
responsible contractor to correct the conditions or bringing them to the
attention of the general contractor. New England Tel. &Tel. Co. v.
Secretary of Labor, 589 F.2d 81 (1st Cir. 1978) (per curiam);
Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD ¶20,690 (No. 3694,
1976) (consolidated); Grossman Steel & Aluminum Corp, 4 BNA OSHC 1185,
1975-76 CCH OSHD ¶20,691 (No. 12775, 1976). See Zemon Concrete Corp. v.
OSHRC, 683 F.2d 176 (7th Cir. 1982). See also Central of Georgia
Railroad Co. v. OSHRC, 576 F.2d 620, 623 (5th Cir. 1978) (discussion of
"intricacies" of multi-employer construction worksites as opposed to
worksites in general industry where more than one employer may be
involved). Thus, responsibility for the correction of hazardous
conditions is predicated on either one of two factors. The first is
creation of or control over the working conditions in question, which in
turn depends on the physical craft or trade represented by the various
contractors. See Union Boiler Co., 11 BNA OSHC 1241, 1246, 1983 84 CCH
OSHD ¶26,453, p. 33,607 (No. 79-232, 1983), aff'd without published
opinion, 732 F.2d 151(4th Cir. 1984) ("[c]ontrol is established when it
is shown that an employer possessed the expertise and personnel to abate
a hazard"). The second is the customary supervisory authority exercised
by the general contractor or other employer having overall control over
condition at the site. Lewis and Lambert Metal Contrac., Inc., 12 BNA
1984-85 CCH OSHD ¶27,073, p. 34,899 (No 80 5295 S, 1984).

We find no basis for creating an exception to the long-standing
principles governing construction work sites by holding that design or
engineering firms may be held responsible supply been use their
activities are related to the overall construction project, to the
extent to which they actually perform or supervise the construction work
itself. No authority to suggest such a holding has been cited to us, and
indeed the ease law suggests the contrary. There is a long standing body
of case law which has consistently held that "construction work" within
the meaning of § 1910.12 refers "only to actual construction or to
related activities that are an integral and necessary part of
construction work." Royal Logging Co. 7 BNA OSHC 1744, 1747 & n. 7,
1749-50, 1979 CCH OSHD ¶23,914, pp. 28,993 & n. 7, 28,996 (No 15169,
1979) aff'd, 645 F.2d 822 (9th Cir. 1981), and cases cited therein. It
is clear however, that under the established precedent, activities
sufficiently "related" to construction work to come within the
construction standards are those which involve the performance of
physical labor.

For example, National Engg involved the question of whether the general
contractor at a project to upgrade and expand a waste treatment plant
was engaged in construction work when it installed a valve and performed
associated cleanup work. The court reasoned that "[r]eplacement of the
check valves in this case cannot be isolated and seen as accomplishing a
non-construction purpose when respondent's primary purpose at the
worksite was to perform construction work" 838 F.2d at 818 (quoting 86
OSAHRC 56/A12 (No. 85-1151,1986) (ALJ)). In A.A. Will Sand & Gravel
Corp.,4 BNA OSHC 1442, 1443, 1976-77 CCH OSHD ¶20,864, p. 25,045 (No.
5139, 1976), the Commission held that delivery of material to a
construction site constitutes construction work where the delivery
employee assisted an employee it he site In bringing. the material to
the specific work area since the delivery became "an integral part
of...the construction activities." In that decision the Commission cited
West Allis Lime & Cement Co., 2 BNA OSHC 1453, 75 CCH OSHD ¶19,155 (No.
1324, 1974), aff'g 74 OSAHRC 90/E12 (ALJ, 1973) (although mere delivery
is not construction work, Part 1926 applies to a concrete supplier whose
driver positioned his truck several hundred feet into the job site at a
material hoist into which he poured the concrete) In the same vein, the
commission ruled in United Tel. Co. of the Carolinas, 1 BNA OSHC 1644,
1645, 1976-77 CCH, OSHD ¶21,043. p. 25,323 (No. 4210, 1976) that
employees of a telephone company assigned to move telephone poles to
make room for a highway being constructed are subject to the
construction standards because erecting and removing telephone poles and
transferring lines constitutes "alteration" within the meaning of
section 1910.12(b)and also because it is incidental to subsequent
construction and part of the total work to be performed." See also Heede
Intl., Inc, 75 OSAHRC 26/C11 (ALJ, 1973) aff'd, 2 BNA OSHC 1466, 1974-75
CCH OSHD ¶19,182) (No. 1889, 1975) that had been used on a construction
site constitutes construction work).

*D.Other Considerations
*

The Secretary's statements when she adopted amendments to the concrete
and masonry standards in Subpart: Q further demonstrate that
responsibility for hazardous working conditions on multi-employer
worksites rests with the trade contractors who have direct control over
those conditions or with those who directly supervise those contractors.

The Secretary issued a notice of proposed rulemaking on September 16,
1985, identifying "the collapse or failure of the entire structure or
its forms and shoring" as one of the hazards associated with concrete
and masonry structures. 50 Fed. Reg. 37,543 (1985). One issue the
Secretary dealt with was whether requiring a structural engineer to
design and inspect the "layout" for shoring in certain circumstances
would help prevent improper erection of such shoring. Also in question
was the requirement in the existing standard that engineer
specifications" be followed in determining the length of time shoring
should remain in place following concrete placement, which the Secretary
proposed to delete. In light of these concerns, the Secretary requested
comments on the current industry practice for determining when forms may
he removed and on whether imposing a mandatory requirement that
engineers inspect concrete construction operations for conformity with
plans and specifications would improve worker safety. Id. at 37,549-50.

Revisions to Subpart Q were promulgated on June 16,1988. 53 Fed. Reg.
22,612 The Secretary modified her proposal to amend section 1926.701
(a), which addresses the point at which leads may be placed on a
concrete structure, by deleting a proposed implementation that holds be
"approved by the engineer or architect" in favor of a requirement that
the contract make the determination "based on information received from
a person in structural design." Id. at 22,616. The Secretary explained,

OSHA proposed to revise the existing rule by deleting that portion of
the provision which required that construction loads be "considered in
the design," leaving only the requirement that the engineer/architect
approve the placement of loads on partially completed structures. OSHA
proposed this revision because engineers-architects are not always aware
of all construction loads that will ultimately be placed on the
structure, and thus, they would not be able to properly consider all
such construction loads in the design stage. However, OSHA believes that
the employer, as the person who has the ability to take corrective
action and as the person with ultimate responsibility for the safety and
health of the workers, also has the responsibility for making such decisions
....
After carefully considering all the comments and testimony received,
OSHA has decided to delete the requirement for the specified
engineering- architect services. This decision is based on the comments
and testimony received which indicates that engineer-architects
frequently do not consider construction loads in the design, nor do they
approve their placement on partially completed structures....Therefore,
OSHA is requiring that the employer make the determination that the
structure or portion of the structure is capable of supporting the
construction loads. The employer must make this determination on the
basis of information received from a person qualified in structural
design. This revision also places responsibility for employee safety
with the person directly responsible for the construction operations.

Id.at 22,616-17 (emphasis added).

The Secretary also declined to adopt a suggestion by the Building and
Construction Trades Department, AFL-CIO, that section 1926.703 (a) (1),
which deals with "cast-in-place" concrete and is one of the standards
SGH is alleged to have violated, be revised to require that formwork be
designed by a structural engineer. OSHA reasoned that such a mandatory
requirement would be unnecessary in part because the trade contractor
has the responsibility to decide how to satisfy the objective of the
standard that the formwork be capable of supporting the load. Id. at
22,625. Although OSHA did adopt a requirement that with respect to one
particular type of shoring, single post shores, a "qualified designer"
prepare the shoring design, OSHA again emphasized that the
responsibility for ensuring safe working conditions ultimately belongs
to the trade contractors and not the design or consulting professionals.
Thus, OSHA provided that "the employer have an engineer who is qualified
in structural design" inspect the shoring after it is erected. Id. at
22,629 (emphasis added); section 1926.703(a)(8)(i).

The Secretary conducted a separate rulemaking for standards governing
lift-slab operations, which are defined at section 1926.700(b)(3) as "a
method of concrete construction in which floor, and roof slabs are cast
on or at ground level and, using jacks, lifted into position."[[9]] The
existing section 1926.705 governing this type of operation incorporated
an industry safety code which required that lift-slab operations "be
designed and planned by a qualified professional engineer or architect."
ANSI 10.9-1970, Safety Requirements for Concrete Construction and
Masonry Work, section 11.2 (1970). The Secretary had proposed changing
this requirement to conform to the language of the 1983 version of the
ANSI standard, which provided that these tasks be performed by a
"qualified designer." The Advisory Committee on Construction Safety and
Health, however, recommended instead the term "professional engineer or
architect registered in the state where the work is being done." The
advisory committee also recommended that the engineer or architect be
required to "supervise" lift-slab operations. Accordingly, the Secretary
requested comments on whether employee safety would be enhanced by
requiring an engineer or architect to do this work and, if so, what type
of engineer would be appropriate. 55 Fed. Reg. 42,309-310 (1990).

Noting that the various comments included, among other things, a
suggestion that these duties be performed by the "Engineer of Record,"
who under the laws of every state must approve building plans and must
be licensed in the state where the work is being done, OSHA concluded,
as it had in the previous amendments to Subpart Q, that the employees
safety is the province of the specific construction made contractor:
[T]here is no clear discussion of the benefits to worker safety to be
gained by requiring a qualified designer instead of a registered
professional engineer or vice versa...It is the Agency's intent that the
lift-slab contractor be responsible for the lift slab operations at the
construction site. OSHA observes that the general contractor (who
probably is not the lift-slab contractor) is generally responsible for
the entire structure and the engineer of Record is a representative of
the owner or of the general contractor, not the lifting contractor.
Therefore, it would appear that the recommendations that OSHA place
responsibility for work safety matters on the EOR, when it is known that
the EOR will not be in the employ of the lifting contractor, would not
provide adequate protection. OSHA observes that the Agency's
jurisdiction is based on the employer/employee relationship.
[W]hile many commenters noted support for the term "qualified designer,"
they also supported requiring the engineer of record to have some
responsibility for reviewing the work of the qualified designer. OSHA
does not believe worker safety and could inadvertently place
responsibilities on persons who are not in a position to control
employee exposures to hazards....
Id'. at 42,311-12 (emphasis added).
Indeed, the policy considerations the Secretary addressed when she
promulgated these standards are reflected in her enforcement actions in
this very case. In addition to SGH, the Secretary issued citations
relating to the accident to three of the contractors at the site:
Francis Harvey and Sons, the general contractor; Worcester Steel
Erectors, the metal decking subcontractor; and D & M Concrete Floor
Company, the concrete subcontractor. Worcester Steel and D & M Concrete
were cited for violations of the same standard SGH alleged to have
violated, and the citation issued to D & M Concrete is worded almost
identically to SGH's citation.[[10]] Although the issuance of citations
to the general contractor and specific trade contractors for the same
conditions is not conclusive on the question before us, it does suggest
that the Secretary recognizes that construction contract as themselves
are responsible for the safety of the working conditions at this site
and that SGH itself is not in a position to effectuate abatement or
correction of the hazardous conditions questioned.

IV. ACCEPTANCE OF THE SECRETARY'S INTERPRETATION

The Secretary, nevertheless,contends that under Martin v. OSHRC (CF&I
Steel Corp).111 S.Ct 1171, 1991,we must defer to her interpretation that
design and engineering professionals are engaged in "construction work"
within the meaning of section 1910.12(b). We conclude that the holding
of for two reasons. First, in our view, we need not reach the deference
issue addressed in CF&I because the Secretary's interpretation is
invalid under the Administrative Procedure Act ("APA") for not having
been promulgated through notice and comment rulemaking. Second, even
assuming CF&I is applicable, it does not require deference in the
circumstances presented here because the Secretary's interpretation does
not meet the prevailing criteria for ableness reasonableness.

*A. Requirement for Notice and Comment
*

The APA. 5 U.S.C. § 551(4), broadly defines a "rule" to include "an
agency statement of general or particular applicability and future
effect designed to implement, interpret, or prescribe law or policy
......" Under section 553, notice and an opportunity for comment is
required for the promulgation of a rule except for "interpretative
rules, general statements of policy or rules of agency organization,
procedure, or practice." 5 U.S.C. § 553(b)(A). Although the various
categories of rules referred to in this section are not clearly defined,
a rule for which notice and comment is required is generally understood
to be a rule issued pursuant to specific statutory authority to regulate
the matter in issue and which constitutes the law which both the agency
And reviewing authorities must enforce. Phoenix Forging Co., 12 BNA,
OSHC 1317,1323 n.14, 1984-85 CCH OSHD ¶27,256, p. 35,215 n.14 (No.
82-398, 1985): 2 Davis, Administrative Law Treatise § 7:11 at 53-54 (2d
ed. 1979).

There is no question that section 6 of the Act gives the Secretary
authority to issue binding rules through the promulgation of
occupational safety and health standards.

Northwest Airlines, Inc., 8 BNA OSHC 1982, 1989 CCH OSHD ¶24,751, p
30,488 (No. 13649, 1980). An agency empowered to enact legislative
rules, however, may also elect to issue non-legislative statements.
Unlike legislative rules,which have binding legal effect and can be set
aside by the courts only if they are arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law a reviewing
authority has greater latitude to depart from nonbinding actions or
statements or give them less weight. Batterton v. Marshall, 648 F.2d
694, 701-02 (D.C. Cir. 1980); Cerro Metal Prods., Dive of Mannon Group
Inc v. Marshall, 620 F.2d 964, 981-82(3d Cir. 1980). Thus, in CF&I, the
Court held that while interpretations issued by the secretary "are not
entitled to the same deference as norms that derive from the secretary's
delegated lawmaking powers," they are to be given deference so long as
they are reasonable. 111 S. Ct. at 1179. See Erie Coke Corp., 15 BNA
OSHC 1561, 1563, 1992 CCH OSHD ¶29,653, p. 40,148 (No 88-611, 1992)
petition for review filed, No. 92-3297 (3d Cir. June 8,1992).

In this case, the Secretary's position that the term "construction work"
used in section 1910.12 necessarily includes the work performed by
design and engineering professionals such as SGH is not a legislative
rule promulgated through the rulemaking procedures of section 6 of the
Act, and the Secretary does not contend that it must be given binding
legal effect as a substantive rule of law. See APWU v. USPS, 707 F.2d
548, 558 (D.C. Cir. 1983), cert. denied, 465 U.S. 1100 (1984) (a rule is
legislative only if Congress has delegated legislative power to the
agency and if the agency intended to use that power in promulgating the
rule at issue). Rather, the Secretary contends that as an
interpretation, for which notice and an opportunity to be heard is not
required under 5 U.S.C. § 553(b)(A), her position is entitled to
deference because it is a reasonable interpretation of ambiguous
regulatory terminology.
In evaluating arguments of this nature, there are essentially two
divergent lines of authority. As the court in Cerro explained,

[one] approach, which has substantial support in the case law, [is] to
distinguish between interpretative and legislative rules and then to
strike down the latter if found to be masquerading as the former. Under
this method, the function of the court is to decide what a rule "really"
does and then require a rule substantially affecting a legal right to be
promulgated by notice-and-comment rulemaking or else be he held invalid.

Conversely, "[t]he alternative approach . . . is to take the agency at
its word: If an agency that has the statutorily delegated power to issue
legislative rules chooses instead to issue an interpretive rule, the
court accepts that characterization of the rule" but then decides what
weight to assign to it. 620 F.2d at 981 (citing Daughters of Miriam
Center for the Aged v. Mathews, 590 F.2d 1250,1255 n.9, 1258-59 (3d Cir.
1978)) (footnotes omitted). Compare Columbia Broadcasting Sys Inc. v.
United States, 316 U.S. 407, 416 (1942) and Lewis Mota v. Secretary of
Labor, 469 F.2d 478, 481-82 (2d Cir. 1972) (the actual effect of the
agency action rather than the label the agency places on it is
conclusive) with American Hosp. Assn. v. Bowen, 834 F.2d 1037 (D.C.Cir.
1978) (in deciding whether notice and comment procedures apply to agency
action. the court will consider the agency's own characterization of its
action). In addressing this question under the OSH Act, the Third
Circuit in Cerro ruled that it would accept the Secretary's view that
the rule in question was interpretative but would not defer to it,
whereas the District of Columbia Circuit has held that the label the
Secretary assigns to her rulemaking action is not dispositive. Chamber
of Commerce of the United States v. OSHA, 636 F.2d 464, 468 (D.C. Cir.
1980). See APWU, 707 F.2d at 560 (holding that even an interpretative
rule may have a significant impact on the rights of individuals
requiring that it be supported by a rulemaking record based on notice
and an opportunity to be heard).

In our view, the Secretary's position that design and engineering
professionals on construction project are subject to the standards in
Part 1926 is an agency action requiring notice and comment rulemaking.
Although the Secretary does not contend that her interpretation of the
term "construction work" is necessarily binding on a reviewing
authority, the practical effect of her position that design and
engineering professionals are engaged in construction work is to subject
them to compliance with the Part 1926 standards by exposing them to
enforcement action for violation of the Act. Thus, under the
interpretation advanced here, the Part 1926 standards become norms for
the conduct of design and engineering professionals. In these
circumstances, we conclude that those who come within the scope of the
interpretation should have the opportunity to be heard with respect to it.

Community Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987). See
Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and
the Like--Should Agencies Use Them to Bind the Public?, 1992 Admin.
Conf. U.S. 12-15 (discussion of agency intent to bind affected parties
or practical binding effect as a basis for requiring notice and
comment). In addition, under the principle advanced by the Secretary
here, design and engineering professionals must assume the
responsibility for the abatement of hazardous conditions at construction
sites regardless of the fact that their contractual responsibilities are
limited to matters of design and conformance with the building plan and
that their presence on the site itself may be occasional and irregular.
See Batterton, 648 F.2d at 709 n.83 (referring "to fundamental fairness
and to the advantages from informing the agency as justifications for
the 'substantial impact' test for notice and comment procedure"); Air
Transp. Assn. of America v. DOT, 900 F.2d 369 (D.C. Cir. 1990)
(exemption under 5 U.S.C. § 553(b)(A) does not apply to agency action
that substantially affects the rights or interests of persons subject to
agency regulation); National Motor Freight Traffic Assn. v. United
States, 268 F. Supp. 90 (D.D.C 1967), aff'd per curiam, 393 U.S. 18
(1968) (3-Judge court) (importance to industry warrants opportunity for
notice and comment). As the court stated in Texaco, Inc. v. FPC, 417.
F.2d 740, 743 (3d Cir. 1969), "Section 553 . . . enables the agency
promulgating the rule to educate itself before establishing rules and
procedures which have a substantial impact on those regulated."

We also conclude that notice and an opportunity to be heard is warranted
in view of the unique characteristics of multi-employer construction
worksites, under which responsibility for hazardous conditions depends
not only on exposure of an employer's own employees but also on an
employer's ability to eliminate or prevent hazardous conditions to which
employees of other employers have exposed. Generally speaking, employers
subject to the construction standards are required under Section
1926.20(b)(2) to conduct inspections of jobsites to ascertain any
possible safety or health hazards[[11]] and under section 1926.21(b)(2)
to "instruct each employee in the recognition and avoidance of unsafe
conditions." E.g. R & R Builders, Inc., 15 BNA OSHC 1383, 1991 CCH OSHD
¶29,531 (No. 88-282, 1991). The secretary's position that design and
engineering professionals are engaged in construction work merely
because they are associated with the overall construction project is
likely to alter substantially the existing relationships between various
contractors on the site. Because professionals such as SGH do not have
specifically limited, discrete work areas, holding them subject to the
construction standards could conceivably require them to take sufficient
measures to inform themselves or hazardous conditions occurring at all
locations at the worksite, to bring all hazardous conditions directly to
the attention of the construction trade contractors who created the
hazards or the general contractor, and to insist that the conditions be
corrected. By the same token, trade contractors whose employees are
exposed to hazards they did not create or control could discharge their
responsibilities under the construction standards by making their
concerns known to the design engineer rather than to the creating and
controlling subcontractor or to the general contractor. Not only would
these consequences introduce an additional layer of authority and
responsibility onto the worksite, but ultimately they would result in
the design or engineering professional duplicating the safety program
and overall supervisory functions of the general contractor. Because of
the obvious importance of such concerns to the construction industry, we
believe that the Secretary should solicit the views of affected
employers as to whether the construction standards can properly be
applied to professionals who are not construction trade contractors. See
Batterton, Pharmaceutical Mfrs. Assn. v. Finch, 307 F. Supp. 858, 863
(D. Del. 1970); and National Motor Freight, 268 F. Supp at 96 (notice
and comment required in view of universal importance of regulatory
action to the affected  industry). Indeed, modern administrative law
embodies the policy that agencies should make greater rather than less
use of notice and comment rulemaking authority. Pacific Coast European
Conference v. FPC, 376 F2d 785, 789 (D.C. Cir. 1967).

In this regard, we think it instructive that SOM, in which the
Commission ruled that the construction standards did not apply to a
design engineer, was the only Commission proceeding other than this case
in which the Secretary sought to apply the construction standards to
employers such as SGH. So far as the record before us indicates, the
Secretary's interpretation here marks a substantial change in the
enforcement practices she has applied since the Commission issued its
decision in SOM in 1977. [[12]] This factor is an additional ground for
holding that notice and comment rulemaking is required in the
circumstances here. W.C. v. Bowen, 807 F.2d 1502, 1504 (9th Cir. 1987);
Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir. 1983); Detroit
Edison Co. v. EPA, 496 F.2d 244 (6th Cir. 1974); Lewis Mota, 469 F.2d at
481-82; Phoenix Forging, 12 BNA OSHC at 1323, 1984-85 CCH OSHD at p. 35,215.

Furthermore, the court in Cardinal Industries held that to disregard the
definition provisions set forth in Part 1926 and in the regulations
promulgated under the other statutes referred to in those standards
"effectively [rewrites] section 1910.12(b) deleting the .... reference
to section 1926.11" 828 F.2d at 379. Although we do not decide the case
solely on the ground that the Secretary's position here results in a
substantive alteration of section 1910.121 [[13]] it is a generally
accepted proposition that an agency may not substantively amend
regulations through an interpretation. Bonessa v. United States Steel
Corp., 884 F.2d 726,732,(3d Cir. 1989) and cases cited therein: Fluor
Constructors v. OSHRC, 861 F.2d 936,942 (6th Cir.1989) American Cyanamid
Co., 15 BNA OSHC 1497, 1504-05, 1992 CCH OSHD ¶29,508, p.40,068
(No.86-681, 1992), petition for review filed, No. 93-3321 (6th Cir. Apr.
7,1992). As the Court noted generally noted in NLRB v. Wyman-Gordon Co.,
394 U.S. 759, APA's rulemaking provisions "were designed to assure
fairness and mature consideration of rules of general application" (lead
opinion), and agencies are to follow those procedures when announcing a
new rule of law to govern parties in the future." Id. at 771 concurring
opinion).

*B. Deference
*

Assuming, however, that the Secretary's interpretative position here is
not invalid under the APA for having been adopted without notice and
opportunity to be heard, we conclude that it is not entitled to
deference. In our view, the interpretation the Secretary advances here
does not meet the Court's criteria for determining reasonableness.

CF&I dealt with a situation analogous to that here--an interpretation
embodied in the form of a citation issued to an employer following an
inspection and subsequently explicated or presented during an
adjudicatory proceeding resulting from that citation. The Court did not
necessarily consider issuance of a citation alone to be conclusive on
the question of reasonableness. As the Court stated, "the decision to
use a citation as the initial means for announcing a particular
interpretation may bear on the adequacy of notice to regulated parties."
111 S. Ct. at 1180 (emphasis added). See Miami Indus., Inc., 15 BNA OSHC
1258, 1267 n.8, 1991 CCH OSHD ¶29,465, p. 39,745 n.8 (No. 88-671, 1991),
petition for review filed, No. 91-4045 (6th Cir. Nov. 7, 1991). Since
this case presents the first occasion since issuance of our decision in
SOM that the Secretary has sought to apply the construction standards to
design and consulting professionals as opposed to those having
managerial authority over the actual performance of construction work,
CF&I does not necessarily mandate that deference be paid to the
Secretary's interpretation. Furthermore, the Court in CF&I generally
held that "other factors relevant to the reasonableness" of a rulemaking
action should be taken into consideration as well, including "whether
the Secretary has consistently applied the interpretation embodied in
the citation." 111 S. Ct. at 1179-80 (emphasis added). That holding
conforms to long-standing Court precedent that the weight to be given to
interpretative agency statements depends on the entirety of the
circumstances: "'The weight of such [an interpretation] in a particular
case will depend upon the thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade,
if lacking power to control.'" General Electric Co. v. Gilbert, 429 U.S.
125, 142 (1976) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)). In our view, taking all the circumstances into account compels
the conclusion that deference is not due to the Secretary's
interpretation here.

In the first place, the Secretary's position disregards the definitions
and other interpretative provisions stated or referenced in Part 1926,
under which the performance of physical trade labor is the criterion for
coverage. See Knappton Corp v. Secretary of Labor, 15 BNA OSHC 1657 (9th
Cir. May 29, 1992) (unpublished) (deference not due to an interpretation
which is at variance with both the history and wording of the
Secretary's regulation). Additionally, the Secretary's issuance of a
citation to SGH alleging violations of standards in Part 1926 cannot be
reconciled with the Secretary's other enforcement actions actions
arising out of the same inspection as that at issue here. In addition to
citing the general contractor and trade subcontractors, the Secretary
also issued a citation alleging deficiencies in the metal decking to
Briggs Associates, a second consulting engineering company having a
separate contract directly with the building owner to perform inspection
and testing services at the site. Significantly, however, the Secretary
did not allege that Briggs failed to comply with the construction
standards in Subpart Q but rather alleged that Briggs violated section
5(a)(1) of the Act, the so-called "general duty clause," which requires
that an employer "furnish to each of his employees employment and a
place of employment which are free from recognized hazards that are
causing or are likely to cause death or serious physical harm to his
employees." The fact that the Secretary cited SGH under the construction
standards in Part 1926 but did not rely on those standards when citing
another engineering firm performing essentially similar duties supports
the conclusion that the Secretary lacks a coherent theory for the
allocation of responsibility for the hazardous working conditions at
this site.[[14]]

As discussed previously, the interpretation the Secretary advances here
also is not consistent with, and indeed is contrary to, her position in
other rulemaking actions, specifically her adoption in Subpart Q of
section 1926.32, a definition provision under the CSA standards, and her
comments in finding a limited role for design and architectural
professionals when she promulgated her amendments to that Subpart.
Furthermore, whereas the Secretary now contends that the definition
provisions set forth or incorporated in the Part 1926 standards are not
relevant in determining the scope of the substantive construction
standards under the Act, she made precisely the opposite argument in her
submissions to both the Sixth Circuit and the Commission in other cases.
While we do not mean to suggest that an agency is not free to change its
enforcement practices or policies, it cannot do so without providing an
explanation for the modification with a "sufficient clarity of analysis"
Public Interest Research Group v. FCC, 522 F.2d 1060, 1065-66 (1st Cir.
1975), cert. denied, 424 U.S. 965 (1976). As we stated in American
Cyanamid,15 BNA OSHC at 1504, 1992 CCH OSHD at p. 40,067 (quoting
Greater Boston Television Corp. v. FCC. 444 F.2d 841, 352 (D.C. Cir.
1970), cert. denied, 403 U.S. 923 (1971)), the Secretary must present "a
reasoned analysis indicating that prior policies and standards are being
deliberately changed, not casually ignored." In American Cyanamid, in
addressing a situation similar to that here, we rejected as not entitled
to deference an interpretation advanced by the Secretary that was
inconsistent with a position the Secretary had previously taken. Indeed,
the Secretary's contention that the definition provisions of Part 1926
do not limit the application of the construction standards is precisely
the same position that the court explicitly rejected in Cardinal
Industries and subsequently in Cleveland Electric. 910 F.2d at 1336. We
are not compelled to defer to an interpretation which is directly
contrary to a dispositive judicial precedent on the point in question
where the agency fails to offer any explanation for the inconsistency."
[[15]] See Chamber of Commerce, 636 F.2d at 468-69. We note that in an
analogous situation dealing with the construction of statutory language
to form a coherent and consistent whole, Justice Scalia recently spoke
in favor of "a neutral and rational interpretive methodology ... so that
the symbol of [the adjudicative] profession may remain the scales, not
the see-saw." Patterson v. Schumate, 112 S. Ct. 2242, 2251 (1992)
(concurring opinion). We find the Justice's comment equally apt here.

*V. APPLICATION OF THE "SUBSTANTIAL SUPERVISION" TEST
*

Accordingly,for the reasons we have stated, we conclude that the
construction standards in Part 1926 are applicable to employers who
perform no physical trade labor, such as SGH, only to the extent that
such employers have actual and direct responsibility for the specific
working conditions at the jobsite and for any hazards resulting from the
actions of any trade contractor. As our discussion indicates, such
responsibility may be conferred either through the customary overall
supervisory authority normally exercised by construction managers and
general contractors or through the creation of or control over a
particular hazardous condition. In this case, there is no contention
that SGH had overall supervisory authority at the site such as that
exercised by the construction managers at issue in Bechtel and Bertrand
Goldberg. SGH and the Secretary disagree, however, on whether and, if
so, to what extent SGH created or controlled the hazardous conditions at
issue.

As previously indicated, this case is before us on Judge De Benedetto's
order granting SGH's motion for summary judgement. In support of their
respective positions on the motion, both parties relied on portions of a
deposition of SGH's supervisor, Paul L. Kelley, taken by the Secretary
and a deposition of Dwight Larry "Butch" Mitchell, superintendent for
the general contractor, taken by SGH.   In his deposition, Kelley
testified that Mitchell telephoned him on December 13, 1988, the day of
the accident. At that time, Kelley was in SGH's office in Arlington,
Massachusetts, some distance from the jobsite.  [[16]] Mitchell advised
Kelley of his plans for the concrete pour.  According to Kelley,


He said that he was also going to place the insulated slabs in the same day.

And I said, why are you going to do that?
He said, well, I've got everybody here, we can get it over with quick.
I was -- I didn't know what was bothering me about it, but --

The substance [of the conversation] was that I thought that I might have
some trouble with placing the insulation of the concrete on the wet
concrete of the first pour, and we talked about that.

Butch said something about, what about the concrete weight?

And I said that if you let the concrete set so you can walk on it, you
should be able to place the insulation and the topping concrete on it.

And I think I said, you should have no -- if you can wait enough time
for the first concrete to set, you should have no trouble walking on it
and setting the insulation and the other concrete.

That was the end of the discussion.

Mitchell testified in his deposition that he decided to call Kelley
after he noticed deflection, or bending, in the metal decking following
a concrete pour. He was concerned about what might happen in another
area of the structure where a thicker layer of concrete was to be
poured. He stated as follows:

I told him [Kelley] that we had noticed some deflection in the deck on
level two underneath and in the areas that we had noticed it, and he
asked how much, and I told him it seemed you know, looking up, it's very
hard to tell the amount of deflection. You can tell that there is
deflection, but I told him it seemed to me like three eighths, half
inch, and he said that he did some calculations. He said, Wait a minute,
and he said that seemed to be normal. He didn't see a problem with it. I
then mentioned about the front of the building where it was thicker, the
two pours, one pour, put the styrofoam in it, and he said, How do you
propose putting this styrofoam in? And I told him we had proposed
pouring the first four and three quarters inches, floating that out, and
then I would have the cement finishers going down at column line one and
C2 and start and work their way back towards that same area again. In
the meantime, I would put the three inches of styrofoam in there. It
would take them approximately two and a half to three hours to get back
and put the top cement on, and he thought for a minute and he said, No,
I don't see any problem with it, and that's the way we proceeded.
.....

He told me he saw no problem with it, and I felt assured that it was all
safe to just go ahead as we had planned on doing, proceeded.

Mitchell also testified that he kept a daily job log of the project. At
his deposition, he read into the record the following statement from his
log: "[asked him about the pour on column line 8B being four inches then
three inches on top of the insulation, if it looked ok to him. He said
there should be no problem." However, Mitchell conceded that "when [he]
had the conversation with Mr. Kelley on the 13th...there [was no]
discussion about shoring at the collapsed area."

After speaking with Kelley, Mitchell instructed the foreman for the
concrete contractor to lay the first 4 3/4-inch layer, pour concrete in
another area while Mitchell and some other employees installed the
styrofoam, and then return to lay the 3-inch top layer after Mitchell
finished. It was this portion of the structure which then collapsed.

Kelley also testified that he prepared the specifications for the metal
decking. These specifications require that the decking contractor submit
"shop drawings," [[17]] which among other things must indicate "the size
and location of deck supports" and "locations where shoring of metal
deck is required." Kelley himself did not specify where shoring should
be placed, because it was not his responsibility to do so, except that
Kelley did make notations on the shop drawings that shoring was needed
at the elevator opening. He explained,

On the elevator opening, until -- elevators vary in size. In general,
the way a job will go, the architect knows how many people he's trying
to handle and at what speed he's trying to handle them. So there may be
several different elevator manufacturers that will meet the
specifications for that....

Each one of them has small differences in the size of the elevator
shaft. Now, depending upon the size of the elevator shaft, that will
determine what the span of the piece of deck is in front of the elevator
shaft.

At the time we reviewed the drawings, we did not know what the final
size of the elevator shaft would be. And depending on whether it moved a
couple of inches either way, would be either within the shoring
tolerances of the drawing or outside of them.

So I thought it would be wise to just require shoring there regardless,
so in case the dimension changed after our review of the drawings, it
would be covered.
****
When the drawings came in for review, that's what I saw as the time to
mark it on, because I was not going to see those drawings again.

In support of its motion, SGH also presented an affidavit from David M.
Berg, an engineer registered in Massachusetts who specializes in
structural engineering..[[18]] Berg stated that he had reviewed the
depositions, SGH's agreement with the architect, the General Conditions
of the Contract for Construction, the shop drawings prepared by the
decking contractor, and notes of meetings regarding the job
progress.[[19]] In his opinion, because of "the local condition of loss
of continuity of the deck as it was a single span condition," it was
necessary for SGH to mark shoring on the shop drawings at this location.
Therefore, SGH did not exceed the scope of its contract in showing this
area of shoring and did not assume the responsibility of determining all
shoring requirements for the decking because shoring is the
responsibility of the general contractor. Furthermore, even if Kelley
did discuss deflection of the decking with Mitchell, Berg opined that
such a conversation also would not be inconsistent with SGH's
contractual responsibilities.

As Judge DeBenedetto noted in his order granting SGH's motion, the
Secretary conceded that SGH did not have contractual responsibility for
formwork. Rather, the Secretary argued before the judge that the
telephone conversation between Kelley and Mitchell and Kelley's marking
of shoring locations on the shop drawings not only exceeded SGH's
contract but also were sufficient to bring it within the scope of the
construction standards. Relying on Berg's affidavit, the judge rejected
the Secretary's contention that Kelley's actions went beyond the normal
and customary duties performed by design engineers. The judge further
found that the single telephone conversation between Kelley and Mitchell
regarding the proposed concrete pour did not establish that SGH
exercised control over the conditions of the formwork at issue or that
Francis Harvey, the general contractor, designed and installed the
formwork under SGH's direction.

We concur with the judge. The criterion for review of a grant of summary
judgment is whether there is any issue of fact pertinent to the ruling.
Deukmejian v. USPS, 734 F.2d 460, 462 (9th Cir. 1984); Bloomgarden v.
Coyer, 479 F.2d 201, 206-07 (D.C. Cir. 1973). Even construing the
limited record before us in the light most favorable to the Secretary,
we conclude that SGH was not shown to have created or controlled the
hazardous conditions at issue here and that further evidentiary
proceedings therefore are not required.

The Secretary contends that SGH was responsible for the hazards
resulting from the concrete pour because Mitchell, having misgivings
about whether he could complete the double pour in one day, received and
relied on assurances from Kelley that the operation would be safe and
that the amount of deflection was within proper limits. Mitchell's
testimony, however, makes clear that he or his employer, Francis Harvey,
the general contractor, devised the procedure for conducting the
concrete pour and that Kelley merely confirmed the sequence and plan
Mitchell or Francis Harvey proposed. It is also apparent from Mitchell's
testimony that Kelley did not instruct Mitchell to start the pour;
rather, Mitchell made the decision to commence pouring. Plainly, Kelley,
who was riot even on the site, was not in a position to order that the
pour start or, for that matter, to stop it once it had started, nor did
he oversee the trade contractors during the pour. Furthermore,
acceptance of the Secretary's argument would require us to conclude that
Mitchell would not have commenced the pour if he had not spoken to
Kelley regarding it. Such a conclusion would be mere speculation on the
record here. Lastly, as the judge found, Berg's affidavit establishes
that SGH (lid not assume substantial supervisory authority over either
the adequacy or the placement of shoring simply because Kelley marked
several shoring locations around the elevator shaft.

*VI. CONCLUSION
*

Accordingly, we conclude that Judge DeBenedetto acted properly in
granting summary judgement in favor of SGH, and we affirm his ruling
vacating the citations issued to SGH.

Edwin G. Foulke, Jr.
                                                                                                                                                    
Chairman

Donald G. Wiseman
                                                                                                                                            
Commissioner

Velma Montoya
                                                                                                                                                    
Commissioner

Dated: August 28, 1992

------------------------------------------------------------------------


*SECRETARY OF LABOR
Complainant,
v.
SIMPSON, GUMPERTZ & HEGER, INC,
                                                                                                            
Respondent.
*

*Docket No. 89-1300
*

*ORDER ENTERED UPON MOTION FOR SUMMARY JUDGMENT
*

Simpson, Gumpertz & Heger, Inc. (SGH), has moved for summary judgment
under Rule 56, Fed. R. Civ. P., on the ground that there is no genuine
issue of material fact and that it is entitled to judgment as a matter
of law.

SGH was cited on March 13, 1989, for alleged serious violations of the
construction safety standards at 29 C.F.R. §§ 1926.703(a)(1) and (a)(2)
dealing with the requirements for cast-in-place concrete:

(a) General requirements for formwork. (1) Formwork shall be designed,
fabricated, erected, supported, braced and maintained so that it will be
capable of supporting without failure all vertical and lateral loads
that may reasonably be anticipated to be applied to the formwork....

(2) Drawings or plans, including all revisions, for the jack layout,
formwork (including shoring equipment), working decks, and scaffolds,
shall be available at the jobsite.

The single issue in this case is whether SGH, a structural engineering
firm, can be held liable under the OSH Act for alleged substandard
conditions to which its employees were not exposed, and for which it was
not responsible under its contractual duties. The conflict in this case
turns on the legal consequences of undisputed facts.

In June 1987, SGH entered into an agreement with Payette Associates,
Inc., and architectural firm, to perform certain structural engineering
services in connection with construction of a building at the Worcester
Polytechnic Institute. A portion of the metal decking collapsed in
December 1988, causing injuries to five employees of a subcontractor
while they were engaged in pouring concrete on the metal decking.

While conceding that SGH was not contractually responsible for the
design, fabrication, or maintenance of the formwork [[1/]] on the
construction project in question, the Secretary contends that SGH's
project manager, Paul Kelley, exceeded the terns of its contractual
obligations by marking up shop drawings indicating shoring was necessary
in one area, and that giving such "advice on the means and methods of
construction on which Francis Harvey, the general contractor, relied. .
. makes SGH an employer engaged in construction within the meaning of
the OSH Act." Secretary's opposition memorandum at 3.

The Secretary also argues that SGH "created the hazardous work area"
(and thereby had engaged in construction work) as a consequence of a
telephone conversation between the general contractor's supervisor,
Dwight Mitchell, and SGH's project manager, Paul Kelley, when Mitchell
sought the latter's advise on a particular occasion regarding the
pouring of concrete. Deposition of Dwight Mitchell at 71-73:

Q. Did you go back down to the trailer to call Paul Kelley?

A. Yes.

Q. And did you reach him in the office?

A. Yes

Q. And what discussion did you have with Paul Kelley at that time?

A. I told him that we had noticed some deflection in the deck on level
two underneath and in the areas that we had noticed it, and he asked how
much, and I told him it seemed--you know, looking up, it's very hard to
tell the amount of deflection. You can tell that there is deflection,
but I told him it looked to me like three eights, half inch, and he said
that -- he did some calculations. He said, Wait a minute, and he said
that seemed to be normal. He didn't see a problem with it. I then
mentioned about the front of the building where it was thicker, the two
pours, one pour, put the styrofoam in it, and he said, How do you
propose putting this styrofoam in? And I told him we had proposed
pouring the first four and three-quarters inches, floating that out, and
then I would have the cement finishers going down at column line one and
C2 and start and work their way back towards that same area again. In
the meantime, I would put the three inches of styrofoam in there. It
would take them approximately two and a half to three hours to get back
and put the top cement on, and he thought for a minute and he said, No,
I don't see any problem with it, and that's the way we proceeded.

The Secretary relies on the principles expounded in Brennan v. OSHRC
(Underhill Construction Corp), 513 F.2d 1032, 1038 (2d Cir. 1975) and in
Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD ¶20,690 (Nos. 3694
& 44091, 1976): In multi-employer construction worksite cases, an
employer who either created the hazardous condition or was in control of
an area and responsible for its maintenance may be liable under the OSH
Act when it is shown that a hazard has been committed and that the area
of the hazard was accessible to the employees of the cited employer or
those of other employers engaged in a common undertaking.

The Secretary's arguments are flawed in several respects. The
uncontradicted affidavit of David Berg, a structural engineer, discloses
that the single area of shoring shown on the shop drawing that was
specified by SGH was due to a local condition of loss of continuity of
the deck, a specification that was within the scope of the structural
engineering services to be performed by SGH pursuant to its written
agreement with the architect. Moreover, there is no evidence whatsoever
to suggest that SGH took over the responsibility of the general
contractor for the formwork on the project. A single telephone
conversation between SGH's project manager And the general contractor's
supervisor initiated by the latter in seeking advise under the most
casual of circumstances, regarding a proposed pouring of concrete does
not tend to establish that SGH exercised control with regard to the
formwork that is the subject of the citation, or that the general
contractor designed or constructed the formwork, for which it was
contractually responsible, under the direction of SGH.

In Skidmore,Owings & Merrill, 5 BNA OSHC 1762, 1764, 1977 CCH OSHD
¶21,143 (No. 2165, 1977), the Commission held that an architectural and
engineering firm which has only limited functions and authority over
construction work is not subject to the standards prescribed in Part
1926. That principle is precisely applicable here. Accordingly, it is

ORDERED that SGH's notion for summary judgment is granted, and the
two-item citation issued on March 13, 1989, is vacated.

RICHARD DeBENEDETTO
                                                                                                                                            
Judge, OSHRC

Dated: March 19, 1991
Boston, Massachusetts


*FOOTNOTES: *

[[1]] The cited standards require as follows:

§ 1926.703 Requirements for cast-in-place concrete.

(a) General requirements for formwork (1) Formwork shall be designed,
fabricated, erected, supported, braced and maintained so that it will be
capable of supporting without failure all vertical and horizontal loads
that may reasonably be anticipated to be applied to the formwork.
Formwork which is designed, fabricated, erected, supported, braced and
maintained in conformance with the Appendix to this section [referencing
ANSI A10.9-1983, Construction and Demolition Operations-Concrete and
Masonry Work] will be deemed to meet the requirements of this paragraph.

(2) Drawings or plans, including all revisions, for the jack layout.
formwork (including shoring equipment), working decks, and scaffolds
shall be available at the jobsite.
"Formwork" is defined at section 1926.700(b)(2) as "the total system of
support for freshly placed or partially cured concrete. including the
mold or sheeting (form) that is in contact with the concrete as well as
all supporting members including shores, reshores, hardware, braces, and
related hardware." In other words. the standards in section 1926.703 at
issue include both the metal decking and any supporting shoring.

[[2]] Although at oral argument SGH's coursed pointed out that the
Secretary's contention that design and professionals are per se engaged
in construction work was rot raised before the judge, neither SGH nor
the amici curiae assert that the Commission not consider the Secretary's
argument.

[[3]] As previously indicated, Judge DeBenedetto decided this case on
SGH's motion for summary judgment. There has been no formal admission of
documents into the record. The Secretary. however, does not challenge
the contracts attached as exhibits to SGH's memorandum in support of its
motion.

[[4]] Generally speaking, SGH performed these duties as an assistant or
advisor to the architect, Payette, as indicated by the provisions of the
contract dealing with SGH's approval of the work performed by the trade
contractors:

1.2.12 The Engineer shall visit the site at intervals appropriate to the
stage of construction...or as otherwise agreed with the Architect in
writing, to become generally familiar with the progress and quality of
the Work...and to determine in general if such Work is proceeding in
accordance with the Contract Documents. However, the Engineer shall not
be required to make exhaustive or continuous on-site inspections to
check the quality or quantity of the Work...On the basis of such on-site
observations as an engineer, the Engineer shall keep the Architect
informed of the progress and quality of the Work...and shall endeavor to
guard the Owner against defects and deficiencies in such Work of the
Contractor.

1.2.15 The Engineer, based on observations at the site and on
evaluations of the Contractor's Applications for Payment, shall assist
the Architect in determining the amounts owing to the Contractor...and
shall certify such amounts to the Architect...

1.2.16 Certification by the Engineer to the Architect of an amount owing
to the Contractor shall constitute a representation by the Engineer to
the Architect that, based on the Engineer's observations at the site as
provided in Subparagraph 1.2.12 and the date comprising the Contractor's
Application for Payment, the Work...has progressed to the point
indicated; that to the best of the Engineer's knowledge, information and
belief, the quality of such Work is in accordance with the contract
documents (subject to an evaluation of such Work for conformance with
the Contract Documents upon Substantial Completion, to the results of
any subsequent tests required by or performed under the Contract
Documents, to minor deviations from the Contract Documents correctable
prior to completion, and to any specific qualifications stated by the
Engineer); and that the Contractor is entitled to payment in the amount
certified.
1.2.22 The Engineer shall assist the Architect in conduction inspections
... to determine the dates of Substantial Compliance and final
completion and shall review and approve, or take other appropriate
action on, the Contractor's list of items to be completed or corrected
and shall forward the list to the Architect for final disposition. The
Engineer shall assist the Architect in receiving and forwarding to the
Owner for the Owner's review written warranties and related documents
required by the Contract Documents and assembled by the Contractor ....
If requested, the Engineer shall issue to the Architect a final
certificate in writing with respect to final payment . . . .

[[5]] Section 6(a) of the OSH Act, .29 U.S.C. § 655(a), authorized the
Secretary, within two years from the effective date of the Act to
promulgate occupational safety and health standards enforceable under
the Act by adopting "any established Federal standard." The term
"established Federal standard" is defined 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 "Section 3(10), 29 U.S.C §
652(10)
The CSA standards, originally codified as 29 C.F.R. part 1518, were
promulgated on April 17, 1971, 36 Fed. Reg 7340(1971), and were adopted
and/or the OSH Act by 29 CFR § 1910.12 on May 29,1971 36 Fed. Reg.
10,466, 10,469 (1971). They were redesignated as part 1992 on December
30, 1971. 36 Fed. Reg. 25,232 (1971)

[[6]] The association with construction craft labor originates section
1926.32(i), which defines "employee" as
every laborer or mechanic under the [CSA] regardless of the contractual
relationship which may be alleged to exist between the laborer and
mechanic and the contractor or subcontractor who engaged him. "Laborer
and mechanic" are not defined in the [CSA], but the identical terms are
used in the Davis-Bacon Act .... The use of the same term in a statute
which often applies concurrently with section 107 of the [CSA] has
considerable precedential value in ascertaining the meaning of "laborer
and mechanic" as used in the [CSA]. "Laborer" generally means one who
performs manual labor or who labors at an occupation requiring physical
strength, "mechanic" generally means a worker skilled with tools."

"Employer" is defined a section 1926,32(j) to mean a "contractor or
subcontractor" within the meaning of the [CSA] and of this part"; that
is, 3 contractor who employs or "engages" laborers and mechanics.
29 CFR § 2(m), a regulation implementing the Davis-Bacon Act, states
that the term "laborer or mechanic" "does not apply to workers whose
duties are primarily administrative, executive, or clerical, rather than
manual" and that "persons employed in a bonafide executive,
administrative, or professional capacity as defined in part 541 of this
title are not declared to be laborers of mechanics" Section 541.302(a),
a regulation promulgated by the Secretary under the Fair Labor Standards
Act of 1938, 29 U.S.C. §§ 201-219, address employees "employed in a
bonafide professional capacity" It defines "learned professions" as
requiring knowledge of an advanced type in a field of science of
learning customarily acquired by a prolonged specialized intellectual
instruction and study as distinguished from...training in the
performance of mental, manual, or physical processes." Section
541.302(c)(1) expressly includes "engineering" and is professional which
meet the requirement for a prolonged coarse of specialized intellectual
construction and study."

[[7]] In Bechtel, the Commission noted that the Secretary purported to
limit the extent of incorporation of the CSA standards by section
1910.12(c), which provides as follows:

(c) Construction Safety Act distinguished. This section adopts as
occupational safety and health standards under section 6 of the Act the
standards which are prescribed in part 1926....Thus, the standards
(substantive rules) published in subpart C and the following subparts of
part 1926...are applied. This section does not incorporate subparts A
and B of part 1926....Subparts A and B have pertinence only to the
application of section 107 of [the CSA]. For example, the interpretation
of the term "subcontractor" in paragraph (c) of § 1926.13 of this
chapter is significant in discerning the coverage of [the CSA] and the
duties thereunder. However, the term "subcontractor" has no significance
in the application of the Act, which was enacted under the Commerce
clause and which establishes duties for "employers" which are not
dependent for their application upon any contractual relationship with
the Federal Government or upon any form of Federal financial assistance.

The Commission also noted a more general limitation on the incorporation
of standards promulgated under other statutes.

It bears emphasis that only standards (i.e., substantive rules) relating
to safety or health we adopted by any incorporations by reference of
standards prescribed elsewhere in this chapter or this title.... [T]he
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 [CSA], but having no relevance to the application [of
the OSH Act].

Section 1910.11(b). Based on these provisions, the Bechtel decision held
that [a]ny references to contractors subcontractors, laborers, or
mechanics in Part 1926 are interpretative rules not adopted by the
Secretary and have no force and effect under OSHA." 4 BNA OSHC at 1008,
1975-77 CCH OSHD at p. 24,500

Section 1910.12(c) and section 1910.11(b), however, provide only that
regulations bearing on the scope of the CSA itself are not incorporated
under the OSH Act. They are thus consistent with the principle that the
OSH Act applies to a larger class of employers than the CSA. As the
court in Cardinal Industries stated, "[t]he limitation thus placed by
the Secretary on the incorporation of ... Part 1926 does not detract,
however, from [the] conclusion that section 1910.12(b) must be
interpreted in accordance with section 1926.13." 828 F.2d at 377 n.7.
Accordingly, section 1910.12(c) and section 1910.11(b) do not affect our
view that the definition provisions of the CSA standards may be applied
to determine the kinds of work activities that are covered by the
substantive construction standards, as opposed to the scope of the CSA
itself. To the tent Bechtel may suggest the contrary, that decision is
overbroad.

[[8]] See supra note 6. In addition to "employee," Subpart Q uses
several other terms which are defined in section 1926.32, including
shall, "qualified," and in one instance "ANSI," the abbreviation for the
American National Standards Institute. "Employee," however, is used
repeatedly throughout Subpart Q.

[[9]] There is no indication that the construction project in this case
was a lift-slab operation. The amendments to the lift-slab regulations,
moreover, were promulgated after this case arose. Nevertheless, the
comments the Secretary made with regard to lift-slab operations reflect
the same conclusions regarding the allocation of responsibility for safe
working conditions that the Secretary stated in her previous amendment
of the Subpart Q standards. See Bay State Ref. Co, 15 BNA OSHC 1471,
1475 n.5, 1992 CCH OSHD ¶29,579, p. 40,024 n.5 (No. 88,1731, 1992)
(reliance on rulemaking which postdates the citations when it confirms
earlier pronouncements by the Secretary and therefore establishes a
consistent and repeated policy position).

[[10]] Francis Harvey and Worcester Steel filed notices of contest,
which were docketed in the Commission as Docket No. 89-1208 and Docket
No. 89-1206 respectively. Francis Harvery and the Secretary agreed to a
settlement under which one citation item was withdrawn and the rest
affirmed. Worcester Steel is still pending before the Commission. D & M
Concrete did not file a notice of contest but entered into an informal
agreement with the Secretary under which it waived its right to contest
in exchange for a reduction in the penalty.

[[11]] This standard reads.
§ 1926.20 General safety and health provisions.

(b) Accident prevention responsibilities. (1) It shall be the
responsibility of the employer to initiate and maintain such programs as
may be necessary to comply with this part

(2)Such programs shall provide for frequent and regular inspections of
the job sites, materials, and equipment to he made by competent persons
designated by the employers.

[[12]]ln its brief before us. SGH avers that the citation issued in this
case constitutes the Secretary's "initial means" for expressing a
position contrary to our holding in SOM; that is, SGH asserts that until
the present case, the Secretary had acquiesced in SOM. In her reply
brief the Secretary contends that she has consistently maintained that
"design and service professionals" are engaged in construction work
because of their basic involvement with a construction project, and she
cites Bertrand Goldberg. That case, however, involved a construction
manager. As previously discussed. the Commission in SOM distinguished
the functions performed by a construction manager from those of a design
or consulting engineer based on the extent of supervisory authority over
the worksite. Accordingly, the issuance of citations to professionals
such as SGH and not citations to construction managers determines the
consistency of the Secretary's position with respect to the question in
this case.

At oral argument, counsel for the Secretary was asked whether the
Secretary had issued citations to other professional engineers or
consulting firms under construction standards after the SOM decision.
Counsel replied that she did not have sufficient information to answer
that question. We assume that in view of the significance of the
question presented here, citations issued to other design or engineer
professionals would have been contested, and the Commission would have a
record of such a proceeding.

[[13]]An interpretative rule under the APA is one "which merely
clarif[ies] of explain[s] existing law of regulations"; it is "what the
administrative officer thinks the statute or regulation means." Alcaraz
v. Block, 746 F.2d 593, 613 (9th Cir. 1984); Gibson Wine Co. v. Snyder,
194 F.24 329, 331 (D.C Cir. 1952). Arguably the Secretary's position can
be construed as a statement of the Secretary's understandings of the
meaning of the term "construction work" sufficient to fall within the
generally accepted definition of an interpretative rule under the APA.
rather than a substantive amendment of Pan 1926, It is unnecessary,
however, for us to decide precisely how to characterize the Secretary's
approach in this litigation because we conclude that notice and comment
rulemaking is required regardless of the label affixed to the
Secretary's position. See Thompson v. Washington, 497 F.2d 626 (D.C.
Cir.1973) (right of tenants to be heard during the process of fixing
reats by public housing agencies, while not expressly provided by
statute is implied); Independent Broker-Dealers Trade Assn v. SEC, 442
F.2d 132, 144 (D.C. Cir.). cert. denied, 404 U.S. 828 (1971) (a
"reasonable opportunity...for submission of views by those materially
affected" is required to ensure "elementary fairness); 2 Davis
Administrative Law Treatise § 7:16-:17 (2d ed. 1979) (addressing the
proposition that any rule having a substantial impact must he issued
through notice and comment rulemaking even it the rule is property
characterized as an interpretation). Set also Phoenix Forging Co., 12
BNA OSHC 1317, 1984-85 CCH OSHD ¶27,256 (No.82-398,1985) (finding notice
and comment not required for issuance of a directive by the Secretary
that does not have a significant impact on those subject to inspection
under the Act).

We note that in Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc., 435 U.S. 519, 549 (1978), the Supreme Court held
that reviewing courts may not impose on agencies procedural requirements
beyond those prescribed In 5 U.S.C. § 553. The Secretary does not
contend that the Court's decision precludes us from holding that notice
and comment rulemaking is required in the circumstances here; indeed,
none of the parties address Vermont Yankee in their briefs or argument
In any event. Vermont Yankee is promised on agency compliance with the
minimal rulemaking procedures set forth in the APA; it does not free
agencies. from obligation to give notice and an opportunity to be heard
to those affected by agency action having a substantial impact on them.
Air Transp. Assn. of America v. DOT, 900 F.2d 369, 378 n.13 (D.C. Cir.
1990): Batterton v. Marshall, 648 F.2d 694, 708-10 & nn.83 & 88 (D.C.
Cir. 1980); Davis, § 7:19.

 

[[14]] Section (5)(a)(1) of the Act by its terms imposes a duty on an
employer to protect only its own employees; under this section, an
employer is not liable for the exposure to hazards of employees of other
employers.  Ponsco Constru., Co., 10 BNA OSHC 1576, 1577, n.3, 1982 CCH
OSHD ¶26, 023, p. 32, 665 n.3 (No. 79-3153, 1982). Thus, the Secretary
could only have cited Briggs under section 5(a)(1) if Briggs had
employees exposed to the conditions that were subject of its citation.
However, the fact that section 5 (a)(1) in general may have been
applicable to Briggs would not have precluded the Secretary from citing
Briggs under the construction standards if she concluded, as she did in
the case of SGH, that design and consulting engineers are subject to the
specific construction standards.

[[15]] The Secretary contends in her reply brief that her argument
before the Sixth Circuit in Cardinal Industries is not inconsistent with
her position here because Cardinal Industries involved a manufacturer of
prefabricated housing units in a facility removed from a construction
site rather than, as here, an employer having some relationship with a
specific construction project. We recognize that in Cardinal Industries
the Secretary sought to establish that the construction standards cannot
be applied to work activities lacking a geographical connection with a
construction site and that such a concern does not arise in this case.
Nevertheless, the Secretary plainly took the position before the Sixth
Circuit that the definition provisions stated or referred to in Part
1926 are relevant and indeed dispositive with respect to the kinds of
work activities covered under Part 1926. In the case before us here the
Secretary's interpretation does not purport to offer any explanation of
the definitional provisions: rather, she simply ask that we disregard
them entirely. Therefore, we conclude that the Secretary has failed to
establish a consistent enforcement position within the meaning of CF&J.

[[16]] Pursuant to SGH's contractual responsibility, Kelley had visited
the job site on December 8, 1988, five days prior to the accident. A
copy of his inspection report, submitted in response to the Secretary's
interrogatories, indicates that he gave some instructions to Mitchell.
For example, he directed Mitchell to install additional reinforcing rods
and to replace broken or missing studs and dowels. Kelley testified that
on the day preceding the accident, December 12, he attempted to
telephone Mitchell to make sure that Mitchell had corrected the problems
he had noted on his visit of December 8. He was unable to reach
Mitchell, but Mitchell returned his call on December 13.
The Secretary does not contend that Kelley's instructions to Mitchell
following his on-site visits constitute supervision over the performance
of actual construction work as opposed to ensuring compliance with
design specifications. We conclude that such instructions are
characteristic of lack of supervision over construction work inasmuch as
it appears that Kelley simply advised Mitchell of what work needed to be
performed but did not instruct Mitchell how to perform that work.

[[17]]"Shop drawings" are defined in the standard form construction
contract as "drawings, diagrams, schedules and other data specially
prepared for the Work by the Contractor or any Subcontractor,
manufacturer, supplier or distributor to illustrate some portion of the
work." General Conditions of the Contract for Construction. Article 4 12.1.

[[18]] Commission Rule 61 incorporates by reference Fed. R. Civ. P. 56,
which governs summary judgment. Under the Federal rule, affidavits may
be used in support of or in opposition to motions for summary judgment.
In opposing SGH's motion for summary judgment, the Secretary introduced
an affidavit from H. Berrien Zettler, Deputy Director, Directorate of
Compliance Programs, setting forth circumstances under which a design
engineer may be held responsible under the construction standards.
Before the judge, SGH argued that Zettler's affidavit should be stricken
because it did not comply with the requirements of Federal Rule 56(e)
that affidavits should be based on personal knowledge and set forth
specific factual matter. In his decision granting summary judgment in
favor of SGH, Judge DeBenedetto did not mention the Zettler affidavit,
and the Secretary does not cite to it in her briefs or at oral argument
before us.

[[19]] The shop drawings themselves are not in the record. It is unclear
whether by "notes of progress meetings" Berg was referring to the
reports of on-site visits made by Kelley and another representative of
SGH, Gregg Cohen.

[[1/]]"Formwork" is defined by 29 C.F.R. § 1926.702(b) as:
The total system of support for freshly placed concrete, including the
mold or sheathing which contacts the concrete as well as all supporting
members, hardware, and necessary bracing.