SECRETARY OF LABOR, Complainant, v. CONTRACTOR WELDING OF WESTERN NEW YORK, INC., Respondent.

DECISION

Before: FOULKE, Chairman; WISEMAN, Commissioner. [[1]]

BY THE COMMISSION:

Contractors Welding of Western New York, Inc., was performing repairs on the Ferry Street Bridge, a metal drawbridge in Buffalo, New York, when a compliance officer (“CO”) of the Occupational Safety and Health Administration (“OSHA”) inspected the worksite. When the CO arrived, two welders employed by Contractors Welding were standing on an abutment working on the understructure of the drawbridge. Based on the facts that the water was 15 to 20 feet deep and the employees, who were wearing work boots and heavy clothing, were standing within two feet of the edge of the abutment, the CO believed that, if a welder had fallen in, he could have drowned. Subsequently, OSHA issued a citation alleging that Contractors Welding had Committed serious violations of a number of OSHA safety standards, including the standards at 29 C.F.R. § 1926.106(a) and § 1926.106(c).

The company contested the citation, and a hearing was held before an administrative law judge of the Review Commission. The judge found that Contractors Welding had violated the two above cited standards. His decision on those two items of the citation has been directed for review pursuant to section 12(j) of the Occupational Safety & Health Act of 1970 (“the Act”), 239 U.S.C. § 661(j). Based on our review of the record as a whole, we affirm the judge’s disposition of the item alleging a violation of 29 C.F.R. § 1926.106(c), and we reverse his finding of a violation of section 1926.106 (a) and vacate that item.

I.

Section 1926.106(a) provides that: “Employees working over or near water, where the danger of drowning exists, shall be provided with U.S. Coast Guard-approved life jacket[s] or buoyant work vests.” (emphasis added). The Secretary does not dispute that Contractors Welding had life vests available at the worksite. However, the welders were not wearing them at the time of the inspection, because, according to their testimony, they believed that the vests could trap small particles of molten metal, causing burns on their bodies. In addition, they believed that the vests themselves could catch fire, which could cause serious burns. [[1/]] The question before us is whether the company’s failure to require the welders to wear life vests constituted a violation of the standard.

This is not a case of first impression. The first time the commission confronted this issue, it held 2-1, over a strong dissent, that there was a violation because the employees were not wearing the vests. G.A. & F.C. Wagman, 2 BNA OSHC 12971 1974-75 CCH OSHD § 18,882 (No. 1284, 1974). The majority concluded that section 1926.106(a) must be read together with section 1926.106(b), which provides that, “Prior to and after each use, the buoyant work vests or life preservers shall be inspected for defects which would alter their strength or buoyancy. Defective units shall not be used.” The majority reasoned:

[W]e note that if part (a) of the standard were interpreted to require only the provision of life jackets, the effect of part (b)’s requirement that life jackets be inspected before and after each use, would become insignificant. Furthermore, part (a) is qualified in its application to situations “where the danger of drowning exists.” To give sense to the qualification, a use requirement is necessarily implicit in the standard.

2 BNA OSHC at 1298, 1974-75 CCH OSHD at pp. 22,702-03.

Three years later, a two-member Commission issued Harbert Construction Corp., 5 BNA OSHC 2076, 1977-78 CCH OSHD § 22,316 (No. 13578, 1977) A new commissioner, who had not participated in Wagman, expressed the opinion that the holding in Wagman was incorrect. However, because there were only two commissioners and they disagreed in their views concerning Harbert, there could be no majority opinion. The decision in Harbert reflects that the new commissioner therefore voted to find a violation solely on the basis that Wagman was controlling Commission precedent.

More recently, in considering a different OSHA standard, the Commission again held that the word “provide” contained an implicit requirement that the safety equipment be used. Borton, Inc., 10 BNA OSHC 1462, 1982 CCH OSHD ¶ 25,983 (No. 77-2115, 1982). That decision was appealed, and the court of appeals reversed the Commission’s decision. Borton, Inc. v. OSHRC, 734 F.2d 508 (10th Cir. 1984). The court cited its earlier decision in Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977), stating,

In Kennecott we rejected the argument that [the cited standard] requires employers to ensure that its employees use access ladders. We held that the plain meaning of the phrase “shall be provided” is that an employer must furnish or make available an access ladder and that the regulation could not be read as directing employers to require use of an access ladder… In Kennecott we declared that the term “provide” is not ambiguous. 577 F.2d at 1119. Thus, there is no need to look beyond the face of [the standard] to discover the meaning of “provide.”

734 F.2d at 510. Following the court’s decision in Borton, the Commission reconsidered whether “provide” means “use” in Pratt Whitney Aircraft Group, 12 BNA OSHC 1770, 1986-87 CCH OSHD ¶ 27,564 (No. 80-5830, 1986), aff’d, 805 F.2d 391 (2d Cir. 1986) , and adopted the Tenth Circuit’s reasoning in Borton.

In Pratt & Whitney, the Commission noted that it had in previously considered a number of cases in which the Secretary had argued that “provide” means “require the use of,” and that it had read that term to mean “supply” unless related standards contained an explicit use requirement. The Commission compared the standard under which Pratt & Whitney had been cited with other standards in the same section and found that, when the drafters of the standards had wanted to impose a requirement for the employer to do more than merely furnish protective equipment, they had used terms which clearly indicated that intent. In addition, in Pratt & Whitney , the Commission examined the definitions of the term “provide” in dictionaries. In its decision, the Commission held that the word “provide” is not ambiguous and that it is commonly understood to mean “furnish” or “make available.” The Commission concluded that there was no reason to believe that the term had been used in any sense other than its dictionary meaning.

The Commission’s decision in Pratt & Whitney was appealed to the court of Appeals for the Second Circuit and was affirmed in an unpublished decision. we now reaffirm our determination in Pratt & Whitney that the word “provide” is not ambiguous and that it means “make available.”

The Secretary of Labor asserts that “[i]t is well-established that courts owe deference to an agency’s interpretation of its own regulations,” citing Udall v. Tallman, 380 U.S. 1 (1965). That case states that the Supreme Court shows great deference to an agency’s interpretation when it confronts a problem of statutory construction. 380 U.S. at 16. It is not appropriate to resort to principles of statutory construction, however, when a statute or standard is not ambiguous. [[2/]] Since the word “provide” is not ambiguous, the rules governing statutory construction and deference to an agency’s interpretation do not apply here and it is not necessary to go beyond the face of 29 C.F.R. § 1926.106(a) to determine its meaning. The majority in Wagman therefore erred in construing section 1926.106(a) together with section 1926.106(b), and we now overrule that decision.

Even if section 1926.106(a) were ambiguous, the Secretary’s interpretation would be entitled to deference only if it were a reasonable one. Martin v. OSHRC (CF&I Steel Corp.), 111 S. Ct. 1171, 1180 (1991). Here, the Secretary’s interpretation of the word “provide” stretches the word far beyond its commonly understood meaning. The interpretation thus runs counter to the principle that the Commission should not strain the plain and natural meaning of the words of a standard to alleviate a hazard. General Electric Co. v. OSHRC, 583 F.2d 61, 67 (2d. Cir. 1978). Therefore, we conclude that the Secretary’s interpretation simply is not a reasonable interpretation of the standard. Accordingly, that interpretation is not entitled to deference. Indeed, the courts of appeals that have considered the argument that “provide” includes a requirement to use in Kennecott, Borton, and Pratt & Whitney all rejected it.

The Secretary further argues that the language of a standard is not to be construed in a way that leads to implausible results. We believe that to hold that the word “provide” means “require the use of” would be an implausible result. Since every court of appeals that has considered the question has held that “provide” does not mean “require the use of,” and we know of no dictionary, including legal dictionaries, that gives–or even suggests–that meaning, it would be improper for us to expand the standard beyond its plain meaning.

The Secretary also argues that, if the standard is not read so that it implicitly requires the life vests to be worn, the standard is ineffective in achieving the remedial purposes of the Act. We share the Secretary’s concern that such a holding may afford employees less protection than would be the case if we adopted the Secretary’s position, because employees who are given the option of whether to use life vests or other types of safety equipment may elect not to and may therefore be exposed to drowning and other hazards. However, “If a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express.” Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1973).

Although we recognize that the Secretary has formulated her interpretation of section 1926.106(a) for the laudable purpose of protecting employees, a standard must clearly state what an employer is required to do in order to comply.

The purpose of OSHA standards is to improve safety conditions in the working place, by telling employers just what they are required to do in order to prevent or minimize danger to employees. In an adjudicatory proceeding, the Commission should not strain the plain and natural meaning of words in a standard to alleviate an unlikely and uncontemplated hazard. The responsibility to promulgate clear and unambiguous standards is upon the Secretary. The test is not what he might possibly have intended, but what he said. If the language is faulty, the Secretary has the means and the obligation to amend.

General Electric Co. v. OSHRC, 583 F.2d at 67 (quoting Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161 (3d Cir. 1978)). If the Secretary wishes for standards using the word “provide” also to require the use of the equipment provided, the proper course would therefore be for her to amend those standards to make that requirement explicit. We urge the Secretary to determine which of the standards requiring an employer to provide protective equipment should also require that the equipment be used and then to fulfill her obligation to amend those standards to specify that requirement.

II.

Contractors Welding was also cited for a violation of 29 C.F.R. § 1926.106(c), which provides:

(c) Ring buoys with at least 90 feet of line shall be provided and readily available for emergency rescue operations. Distance between ring buoys shall not exceed 200 feet.

The CO testified that, during his inspection, Contractors Welding’s foreman had told him that there was not a ring buoy at the worksite. At the hearing, the company presented testimony that there were two one, belonging to the city, was located in the pilot house of the bridge; another, owned by Contractors Welding was located on a barge moored about 40 feet from where the welders were working.

The record clearly snows that the ring buoy on the barge had only about 50 feet of line, not the 90 feet required by the standard. It therefore did not comply with the standard’s requirement that there be “at least 90 feet of line.”

There is a photograph in evidence that shows the city’s ring buoy in the pilot house. From that exhibit, it appears that the city’s ring buoy did not have 90 feet of line attached to it, either.[[3/]]

Contractors Welding points out that the ring buoy in the pilot house was part of the standard equipment on the bridge and argues, “[p]resumably, a ring buoy permanently maintained as safety equipment at a government bridge over a navigable waterway satisfies pertinent federal requirements.” We cannot agree with that presumption. The “federal requirements” cited here are safety standards governing the construction industry. They do not apply to state and local government employees. See 29 U.S.C. § 652(5)-(6). While the ring buoy may comply with whatever standards would apply to the operation of a drawbridge over navigable waters, we are unwilling to presume that the city, which operated the bridge, complied with OSHA standards that do not apply to its activities.

Even if we view all the evidence in the light most favorable to the company, we cannot say that either ring buoy had 90 feet of line attached. We therefore find that the Secretary has proved by a preponderance of the evidence that Contractors Welding was not in compliance with 29 C.F.R. § 1926.106(c).

Section 17(k) of the Act provides that a violation is serious if, as a result of that violation, there is a substantial probability that death or serious physical harm could occur. Here, the record establishes that an employee who fell into the water could drown, so the failure to have a ring buoy with adequate line could result in death. The violation was therefore serious.

Section 17(j) of the Act provides that we shall assess appropriate penalties for violations, giving due consideration to the size of the employer, the gravity of the violation, the good faith of the employer, and the employer’s history of previous violations. 29 U.S.C. § 666(j) The record shows that Contractors Welding had 45 or 46 employees and that the company had received several citations in the past. The Secretary proposed a penalty of $480 for this item. Having considered the evidence in the record on the factors set forth in the statute, we find that penalty to be appropriate.

III

For the reasons stated above, we reverse the decision of the administrative law judge and vacate item 1 of the citation alleging a serious violation of 29 C.F.R. § 1926.106(a), and the penalty proposed for that item. We affirm the judge’s disposition of item 3 of the citation finding that Contractors Welding committed a serious violation of 29 C.F.R. § 1926.106(c). We assess a penalty of $480 for that item.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

September 6, 1991