“Docket No. 80-0914 SECRETARY OF LABOR,Complainant, v.SCHIAVONE CONSTRUCTION COMPANY, Respondent.OSHRC Docket No. 80-0914DECISION Before:\u00a0 BUCKLEY, Chairman, and CLEARY, Commissioner. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission onremand from the United States Court of Appeals for the Third Circuit.\u00a0 The Commissionis an adjudicatory agency, independent of the Department of Labor and the OccupationalSafety and Health Administration.\u00a0 It was established to resolve disputes arising outof enforcement actions brought by the Secretary of Labor under the Act and has noregulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).\u00a0 Atissue in this case is whether the administrative law judge properly affirmed three itemsof a citation issued to Schiavone Construction Company (\”Schiavone\”) followingthe Secretary’s inspection of a subway station construction project in Jamaica, New York,where Schiavone was engaged as the prime contractor.Item 10: Electrical extension cordCitation-item 10 alleged that Schiavone violated section 1926.402(a)(8),which provides:Cable passing through work areas shall be covered or elevated to protect itfrom damage which would create a hazard to employees.At the hearing, the judge granted the Secretary’s motion to alternativelyplead a violation of section 1926.402(a)(11), which states:Extension cords shall be protected against accidental damage as may be causedby traffic, sharp corners, or projections and pinching in doors or elsewhere.The compliance officer testified that he observed electrical cords\”strung along the floor in a haphazard manner.\”\u00a0 The cords were in damplocations or puddles of water approximately 1\/2 to 3\/4-inch deep and were covered bylumber and debris.\u00a0 Some of the lumber had protruding nails and employees working inthe area of the cords at times stood on this lumber.\u00a0 In the compliance officer’sopinion, electrical shock or burns could result if the wires became cut or frayed by thelumber or debris and contacted the water or employees.\u00a0 According to the complianceofficer, this hazard could be avoided if the cords were elevated or placed in plastictubing.\u00a0 Schiavone’s witnesses testified that the cords were waterproof, heavy-dutyextension cords that were made for use in construction work and could withstand\”abrupt bangings\” without being damaged if lumber were dropped or placed onthem.The judge concluded that a serious violation of section 1926.402(a)(8) wasestablished because \”the electrical cable was in a pool of water and capable ofcausing electrical shock to [Schiavone’s] employees.\”\u00a0 He also found that thecables presented a tripping hazard.\u00a0 He did not address the alternatively pleadedsection 1926.402(a)(11) allegations.The parties now agree that the judge erred in applying section 1926.402(a)(8) because section 1926.402(a)(11) more specifically addresses extension cords.\u00a0 Schiavone asserts that, although section 1926.402(a)(11) applies, there was noviolation because that standard does not prohibit extension cords in water.\u00a0Schiavone also contends that by using heavy-duty cords it complied with the standard’srequirement that extension cords be protected against accidental damage.\u00a0 TheSecretary asserts that the judge should have found a violation of section1926.402(a)(11).\u00a0 The Secretary argues that although the judge did not expresslyresolve whether the extension cords could be damaged, the judge \”[i]n essence\”credited the compliance officer’s testimony that such damage could occur over the contrarytestimony of Schiavone’s witness.We agree that section 1926.402(a)(11) more specifically applies to the citedextension cords.\u00a0 The judge’s finding of a violation of section 1926.402(a)(8) musttherefore be set aside.\u00a0 We further conclude, however, that a violation of theextension cord standard was proven because the insulation of these cords could have beendamaged by nearby lumber with protruding nails.\u00a0 The possibility of such damage,however, was remote because the extension cords were heavy duty and specifically made forthe use to which they were put.\u00a0 The Commission has characterized violations as deminimis when the record establishes that the possibility of injury was too remote and toospeculative to warrant the imposition of a penalty or the entry of an abatement order.\u00a0 Daniel Construction Co., 81 OSAHRC 107\/D2, 10 BNA OSHC 1254, 1982 CCH OSHD ?25,840 (No. 80-1224, 1981), aff’d, 692 F.2d 818 (1st. Cir. 1982).\u00a0 In view of theremote possibility of injury, this violation is found to be de minimis.\u00a0 Accordingly,citation-item 10 is modified to a de minimis notice.Item 19: Underground fires in cut-and-cover excavations.Citation-item 19 alleges a violation of 29 C.F.R. ? 1926.800(e) (1) (ix), which statesthat, \”[f]ires shall not be built underground.\” The question presented iswhether this standard applies to a subway station built using the cut-and-cover method ofconstruction. The first stage of the cut-and-cover method employed by Schiavone was theexcavation of a large hole 1300 feet long, 65 feet wide and extending 65 feet down to thelowest level subway tunnel to be served by the station.\u00a0 The completed excavation wascovered with wooden beams to allow a normal traffic flow on the surface.\u00a0 Both thestandard and Subpart S of Part 1926, in which the cited standard is located, lack scopeand application provisions.\u00a0 Subpart S is entitled \”Tunnels and Shafts,Caissons, Cofferdams and Compressed Air;\” section 1926.800 is entitled \”Tunnelsand Shafts.\”\u00a0 The standards in section 1926.800 use terms suggesting that theyprimarily were intended to apply \”underground\” and to \”tunnels.\”The compliance officer observed three fires, one built in a 55-gallon drumand two built in smaller cans.\u00a0 Employees had built the fires for warmth. \u00a0According to the compliance officer, the fires were hazardous because they could depletethe available oxygen in the subterranean cavity, create smoke, and trigger a largefire.\u00a0 Schiavone’s witnesses testified that the drums containing the fires werelocated on a concrete deck at the bottom of the cavity, approximately 50-60 feet below theoverhead timber.\u00a0 According to these witnesses, there was \”no possible way\”for the fires to consume the available oxygen because the cavity was ventilated by 5-7ventilation grates in the overhead timber, at least 15 openings to the surface forconcrete pours, 5-6 stairway openings to the surface, and the subway tunnels at either endof the worksite.\u00a0 These witnesses also testified that the metal drums were onconcrete decks and presented no risk of spreading or exploding, and that, in contrast to atunnel, ample means existed for emergency exit if a fire did occur.The administrative law judge, relying on his decision in a companion case,Schiavone Construction Co., OSHRC Docket No. 80-2731, found that the subway station inquestion was a \”tunnel\” and that Subpart S therefore applied.\u00a0 The judgebased his ruling on the Commission’s decision in Shea-Ball, A Joint Venture, 76 OSAHRC133\/A2, 4 BNA OSHC 1753, 1976-77 CCH OSHD ? 21,206 (No. 4892, 1976).\u00a0 In Shea-Ball,a divided Commission applied Subpart S to a cavity excavated under existing buildings thatwas to be used as a subway station.Schiavone and an amicus curiae, the General Contractors Association of NewYork, Inc., contend that the requirements of Subpart S, including its prohibition againstunderground fires, do not apply to the cut-and-cover method of excavation used bySchiavone, since the resulting excavation is entirely different from that of tunnels andpresents no similar hazards.\u00a0 Schiavone contends that \”tunnel\” is atechnical term of art that does not apply to cut-and- cover operations like Schiavone’sand that, Shea-Ball is distinguishable because the method of construction used there wasnot cut-and-cover.The Secretary argues that Subpart S applies to the subway station herebecause it was \”essentially a tunnel-like chamber.\”\u00a0 The Secretary furtherargues that he \”has consistently taken the position that Subpart S regulations applyto cut-and-cover operations and clearly expressed his intent in OSHA Instruction STD3-17.3….\” Instruction STD 3-17.3 [[1]] states in pertinent part:In addition to Subpart P of 29 CFR 1926, Subpart S shall be applicable to anyphase of cut-and-cover construction operations being conducted during, and as a part of,the construction of tunnels when a cover, temporary or permanent, extends over the top ofa cut or excavation so as to create situations in which hazards, such as those existing intunnel operations, may be present.\u00a0 Examples of applicable situations include thosewhere there is limited access or egress of employees, the limited movement of air, andlimited natural daylight illumination at the worksite.The Secretary argues that he is not required to prove that the firespresented a hazard because the standard unequivocally prohibits underground fires.\u00a0The Secretary asserts alternatively that the judge correctly found that a hazard has beenproved.Chairman Buckley and Commissioner Cleary disagree on the disposition of thisitem.[[2]] Like the judge, Commissioner Cleary would find the standard applicable toSchiavone’s cut-and-cover operations.\u00a0 In Shea-Ball, the Commission fully consideredwhether the method of excavation of an underground cavity determines whether it is subjectto section 1926.800.\u00a0 It clearly held that the method of excavation is irrelevant andthat the standards apply to underground cavities, however created, in the shape of atunnel, i.e., an enclosed, subsurface work area that is longer than it is wide.\u00a0 See4 BNA OSHC at 1754-5, 1756, 1976-77 CCH OSHD at pp. 25,498-99, 25,500 (lead and concurringopinions).\u00a0 Moreover, while section 1926.800 frequently refers to\”tunnels,\” it also employs the term \”underground,\” indicating abroader application than to \”tunnels\” alone.\u00a0 Commissioner Cleary wouldtherefore hold that this subway station, like that in Shea-Ball, was governed by thestandard.\u00a0 A test that would apply the tunneling standards in piecemeal fashion, onlyto those hazards existing in the particular excavation, is unworkable.\u00a0 Such anapproach would require employers to make innumerable decisions about excavations, applyingtunneling standards in some instances while not in others.In Commissioner Cleary’s view, there is no question that Schiavone violatedthe standard’s prohibition against underground fires by allowing fires to be built inmetal cans.\u00a0 The judge found that overhead lumber and lumber strewn on the groundnear the cans increased the possibility that a fire could spread.\u00a0 The record,however, shows that the overhead timbers, which formed the roof of the cavity, werelocated approximately 60 feet above these cans.\u00a0 The record also shows that the scraplumber on the ground was not in close proximity to the fire and was being cleaned up bySchiavone’s crew. \u00a0There were also 5-7 ventilation grates in the overhead timber, atleast 15 openings to the surface for concrete pours, 5-6 stairway openings to the surfaceand subway tunnels at both ends of the station.\u00a0 In view of the remoteness of thepossibilities that the fire would ignite this lumber and spread throughout the worksite,or would deplete the available oxygen, Commissioner Cleary would characterize thisviolation as de minimis.Chairman Buckley would vacate this citation-item because he finds thatsection 1926.800(e)(1)(ix) does not apply to Schiavone’s operation.\u00a0 The issue beforethe Commission is a simple question of statutory construction.\u00a0 Whether theprovisions of 29 C.F.R. ? 1926.800, entitled \”Tunnels and Shafts,\” apply toSchiavone’s cut-and-cover operation depends on whether the cited area was a\”tunnel\” within the meaning of the standard.In interpreting standards, the Commission must follow the rules of statutoryconstruction.\u00a0 Ohio-Sealy Mattress Mfg. Co., 83 OSAHRC 27\/C14, 11 BNA OSHC 1377,1380-81, 1983-84 CCH OSHD ? 26,528, p. 33,805 (No. 79-5600, 1983).\u00a0 The objectof statutory construction is to determine and give effect to the intent of the lawmakerswho enacted it.\u00a0 See, e.g., National Railroad Passenger Corp. v. National Associationof Railroad Passengers, 414 U.S. 453, 458 (1974); 2A C. Sands, ed., Sutherland onStatutory Construction ? 45.05 (4th ed. 1973).\u00a0 \”There is, of course, no morepersuasive evidence of the purpose of a statute than the words by which the legislatureundertook to give expression to its wishes.\”\u00a0 Griffin v. Oceanic Contractors,Inc., 458 U.S. 564, 571 (1982), quoting United States v. American Trucking Assns., 310U.S. 534, 543 (1940).Schiavone asserts that the term \”tunnel\” has a commonly understoodmeaning in its industry that does not include cut-and-cover operations.\u00a0 The amicusbrief notes that tunnels had been excavated radiating out from the cited station, arguingthat even a non-technical interpretation of the standard’s language suggests that subwaystations are not tunnels.\u00a0 The Secretary counters that the term does not have arestrictive meaning and may fairly encompass Schiavone’s operation. [[3]] Assumingarguendo the validity of the Secretary’s argument that \”tunnel\” does not have arestrictive, technical meaning and that a subway station can be considered a tunnel, thereremains an issue as to what excavations not commonly defined as tunnels were intended tobe included within the scope of the standard.Both parties refer the Commission to the Secretary’s interpretation of the standardsissued in 1979 as a guide to the scope of the regulation and to support their contraryconclusions.\u00a0 Indeed, the Secretary acknowledges that Instruction STD 3-17.3 exactlysets forth the intended scope of the standard.\u00a0 Accepting the plain language ofInstruction STD 3-17.3 as an indication of the intent of the Secretary leads to theconclusion that Subpart S was not intended to apply to cut-and-cover operations unless\”a cover … create[s] situations in which hazards, such as those existing in tunneloperations, may be present.\”\u00a0 (Emphasis supplied.)[[4]] Yet, those hazards donot exist here.Section 1926.800(e), in which the cited standard appears, is entitled\”Fire prevention and control.\”\u00a0 The Secretary argues that the prohibitionagainst underground fires in section 1926.800(e)(1)(ix) is aimed at preventing the hazardsthat arise from uncontrolled fire and from smoke in tunnels and shafts.\u00a0 The onlyevidence that the fires contained in the metal drums posed a hazard was elicited from thecompliance officer.\u00a0 In his view, the fires were hazardous because they would depletethe available oxygen in the cavity.\u00a0 Inasmuch as the record shows that fresh air wassupplied to the cavity by the subway tunnels located at either end of the station, and bya series of ventilation grates and other openings to the surface, the compliance officer’sopinion as to the hazard of oxygen depletion is unfounded.\u00a0 The compliance officeralso considered the fires hazardous because they could trigger a larger fire in thecavity.\u00a0 Here again, however, the record shows otherwise.\u00a0 It was highlyunlikely that the cited fires would ignite timbers 60 feet overhead.\u00a0 The scraplumber in the area was not close enough to the fire to be ignited.\u00a0 The record alsoshows that, unlike a tunnel created by classic tunneling methods, this cavity had severalexits to the surface and into tunnels that would allow employee escape should it becomenecessary.\u00a0 Chairman Buckley would therefore find that the evidence does notestablish the existence here of a hazard similar in kind or magnitude to the hazardspresent in tunnels and would hold that the standard was not intended to and does not applyhere.In view of the Commissioners’ divergent views on the merits, Chairman Buckleyjoins with Commissioner Cleary in affirming this violation as de minimis in order to allowthe parties to conclude this litigation.\u00a0 See Life Science Products Co., 77 OSAHRC200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ? 22,313 (No. 14910, 1977), aff’d sub nom.Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979); Marshall v. Sun Petroleum Products Co., 622F.2d 1176 (3d Cir. 1980) (affirmance of administrative law judge’s decision by equallydivided Commission constitutes final, reviewable order).Item 15: GuardrailsItem 15 of the citation alleged the following violations of the guardrail standard, 29C.F.R. ? 1926.500(f)(1)(iv),[[5]] at four different locations at the worksite:The anchoring of posts and framing of members for railings was not of such constructionthat the completed structure was capable of withstanding a load of at least 200 poundsapplied in any direction at any point on the top rail with a minimum of deflection. . . .At the hearing, the judge granted a motion by the Secretary to amend item 15to allege in the alternative a violation of section 1926.500(f)(1)(i).[[6]]\u00a0 Item 12of the same citation alleged that Schiavone violated a different guardrail standard,section 1926.500(b)(1), at five locations.\u00a0 Section 1926.500(b)(1) requires thatfloor holes be guarded by \”a standard railing and toeboards or cover.\” \u00a0Schiavone contested item 12 but later withdrew its notice of contest as to thatitem.[[7]]\u00a0 The locations of at least three of the violations cited in item 15 arethe same as those cited in item 12.The compliance officer testified that the midrails of guardrails at three ofthe cited locations were made of 1×4’s instead of 1×6’s.\u00a0 He also testified that at afourth location, 1×4’s were used as toprails and were nailed to the tops of pallets.\u00a0 According to the compliance officer, the pallets were not fastened to the concrete.\u00a0 When he pushed the toprail at this location, he concluded that the rail could notwithstand 200 pounds of pressure as required by section 1926.500(f)(1)(iv).\u00a0 Thecompliance officer conceded that some of the guardrail locations cited in item 12 alsowere cited in item 15, but noted that item 12 concerned areas where there were noguardrails or covers, while item 15 was directed to the inadequate construction ofguardrails that were in place. Several of Schiavone’s witnesses testified that therailings in the cited areas were actually constructed of 2×6’s and not 1×4’s as claimed bythe compliance officer.\u00a0 They also testified that the pallets supporting the railingwere fastened to the concrete floor.The judge found that section 1926.500(f)(1)(iv) had been violated andaffirmed item 15.\u00a0 Although the judge summarized the evidence pertaining to bothsections 1926.500(f)(1)(i) and (iv) at all locations, he did not expressly find thatSchiavone had violated subsection (i) by using undersized lumber at three of the fourlocations.\u00a0 His discussion focussed on subsection (iv) of the standard and on thelocation where 1×4’s were alleged to have been used as toprails.\u00a0 The judge relied onthe compliance officer’s testimony that he could shake the rail and on a photograph ofthat location.\u00a0 The judge found a violation but modified the item, finding that itwas other than serious, and assessed no penalty.Schiavone argues that items 15 and 12 should have been merged because aviolation of the \”overall railing regulation\” at the same locations cited initem 15 was established when they withdrew their notice of contest as to citation-item 12.\u00a0Schiavone submits that it would be duplicative to find that the guardrails cited initem 15 could not withstand the 200-pound force when it had conceded that \”standardrailings\” were not in place at the same locations.\u00a0 According to Schiavone, thejudge’s resolution of this item was colored by his mistaken belief that item 12 had beenwithdrawn by the Secretary.The Secretary asserts that the judge did not err in declining to merge items15 and 12 because the conditions cited in each item were dissimilar and because abatementof the conditions cited in item 12 would not correct the deficiencies cited under item 15.\u00a0The Secretary also suggests that, although the condition cited at the secondlocation in item 15 was properly found to be a violation of section 1926.500(f)(i)(iv),the judge’s decision should be modified because Schiavone’s use of undersized lumber atthree cited locations violated section 1926.500(f)(1)(i) and not section1926.500(f)(1)(iv), as found by the judge.Chairman Buckley and Commissioner Cleary disagree on whether item 15 shouldbe affirmed or vacated.\u00a0 Commissioner Cleary would affirm the judge’s disposition ofitem 15.\u00a0 He notes that in neither its post-hearing brief before the judge, itspetition for discretionary review before the Commission, nor its brief on remand didSchiavone argue that violations of sections 1926.500(f) (1)(i) and (iv) were notestablished.\u00a0 It argued only that the violations alleged in items 12 and 15 areduplicative.\u00a0 In its order of May 10, 1983, the Commission stated that it would\”consider all issues raised by the petition to the Commission for discretionaryreview.\”\u00a0 Commissioner Cleary therefore concludes that whether violations ofeither standard occurred is not before the Commission.Commissioner Cleary would reject Schiavone’s argument that item 15 should bevacated because it is duplicative of item 12.\u00a0 The hazard addressed in item 15 wasthe inadequacy of the construction of guardrails that were in place.\u00a0 On the otherhand, the hazard addressed in item 12 was the total absence of guardrails or the absenceof required components of guardrails, such as toeboards and midrails.\u00a0 Employers arerequired to comply with and may be cited for violations of all standards applicable to ahazardous condition even though a single action may bring the employer into compliancewith all of the violated standards.\u00a0 H.H. Hall Construction Co., 81 OSAHRC 91\/D12, 10BNA OSHC 1042, 1046, 1981 CCH OSHD ? 25,712, p. 32,056 (No. 76-4765, 1981).\u00a0 Allowing the abatement requirement of item 15 to stand therefore cannot be unfairto Schiavone.\u00a0 As to penalties, the Commission has discretion to assess aconsolidated penalty to prevent any unfairness.\u00a0 Id. Yet, the Secretary has notsought and the judge did not assess a penalty for the violations alleged in item 15.\u00a0Accordingly, Commissioner Cleary would not vacate item 15 on the duplicativenessground argued by Schiavone.Chairman Buckley would vacate this item.\u00a0 In Chairman Buckley’s view,the merits of the alleged violation clearly are before the Commission.\u00a0 The ThirdCircuit’s order specifies that \”the entire case\” is remanded to the Commissionfor its consideration. Schiavone Construction Co. v. Donovan, No. 81-2017, (3d Cir.October 30, 1981).\u00a0 As with a case in which review is directed by a Commissioner, theentire \”report of the hearing examiner\” is \”reviewed by theCommission.\”\u00a0 See section 12(j) of the Act, 29 U.S.C. ? 661(i).[[8]] \u00a0Schiavone argued at the hearing that this citation item was issued as a result of thecompliance officer’s mistaken belief that all parts of a guardrail must withstand a200-pound load, and not just the top rail as the standard specifies.\u00a0 In theChairman’s view, the compliance officer’s testimony that he could shake the guardrail doesnot establish that it could not withstand the load of 200 pounds specified in section1926.500(f)(1)(iv).\u00a0 The record otherwise contains no evidence that the guardrail wastested to determine whether it could withstand such a load.\u00a0 Accordingly, ChairmanBuckley would reverse the judge’s ruling that a violation of section 1926.500(f)(1)(iv)was established at the second location.As to the Secretary’s alternative allegation that Schiavone violated section1926.500(f)(1)(i) by using undersized lumber for its guardrails at three locations, theChairman also would find that a violation was not proven.\u00a0 Although the judge neitheraddressed this question nor resolved the conflict in the testimony as to whether the citedguardrails were constructed with undersized lumber, the Commission has the authority toaddress this question for the first time on review.\u00a0 See C. Kaufman, Inc., 78 OSAHRC3\/C1, 6 BNA OSHC 1295, 1298, 1977-78 CCH OSHD ? 22,481, p. 27,100 (No. 14249, 1978).\u00a0 The compliance officer testified that he observed 1×4 pieces of lumber at locationswhere the standard requires 1×6’s.\u00a0 He conceded that at one location he did notmeasure the lumber, and it is unclear from his testimony whether measurements were made atthe other locations.\u00a0 Several of Schiavone’s witnesses who worked at the site andwere familiar with the construction of the guardrails testified that the allegedlyundersized guardrails were actually 2×6’s, which would comply with the standard.\u00a0 Inview of the consistent testimony of Schiavone’s better informed witnesses, ChairmanBuckley concludes that the Secretary failed to prove that undersized lumber wasused.\u00a0 Since the Secretary failed to prove a violation of either standard, ChairmanBuckley would vacate this item.In sum, the Commissioners modify item 10 to a de minimis notice.\u00a0 Theyare divided on whether the judge erred in affirming violations of items 15 and 19. \u00a0Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action can be taken by theCommission with the affirmative vote of at least two members.\u00a0 To resolve theirimpasse and to permit this litigation to proceed to a conclusion, they have agreed toaffirm the finding of a violation with respect to items 15 and 19 and agree to modify item19 to a de minimis notice.\u00a0 The judge’s decision as to items 15 and 19 is accorded noprecedential value.\u00a0 See Life Science Products Co., 77 OSAHRC 200\/A2, 6 BNA OSHC1053, 1977-78 CCH OSHD ? 22,313 (No. 14910, 1977), aff’d sub nom.\u00a0Moore v. OSHRC,591 F.2d 991 (4th Cir. 1979).FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARY DATED:\u00a0 DEC 19 1984The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]) telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0FOOTNOTES: [[1]] Instruction STD 3-17.3, previously designated by OSHA as InstructionSTD 3.1, originally was issued on December 10, 1979, before this inspection.\u00a0 OnMarch 8, 1982, Instruction STD 3.1 was re-numbered as Instruction STD 3-17.3 but nototherwise amended.\u00a0 1981-82 CCH Developments Binder ? 12,482.\u00a0 According to theInstruction, clarification of the standard was needed because \”[t]he construction ofmajor new subways, subway stations and tunneling systems has resulted in frequentapplication of cut-and-cover construction on such projects.\u00a0 Frequent confusionregarding the application of the construction standard, 29 CFR 1926, Subparts P and S, hasbeen prevalent.\”\u00a0 Id. at p. 15,786.[[2]] As established by the Act, the Commission is composed of three members.\u00a0 Section 12(a) of the Act, 29 U.S.C. ? 661 (a). Currently, the Commission has twomembers, as the result of a vacancy.[[3]] It is well settled that a word commonly used as a term of art in aparticular discipline should be construed accordingly where the statute or regulationbeing construed applies to the particular discipline.\u00a0 See, e.g., United States v.Cuomo, 525 F.2d 1285, 1291 (5th Cir. 1976) and cases cited therein; 2A C. Sands ed.,Sutherland on Statutory Construction ?? 45.08 at 23, 47.27 at 137, 47.29 at 150 (1973).\u00a0 Schiavone’s argument is persuasive that the term tunnel, as understood in theindustry, does not encompass cut-and-cover excavations.\u00a0 Similarly, the Secretary hasconsistently drawn a distinction between cut and cover excavations and \”tunneloperations,\” suggesting that the common understanding of the word tunnel does notinclude such excavations.\u00a0 However, it is unnecessary to speculate whether the termis inapplicable to any underground chamber excavated by the cut-and-cover method, becauseit is clear from the record that the regulation was never intended to apply to anoperation such as Schiavone’s in this case.[[4]] Both parties’ arguments misinterpret the significance of InstructionSTD 3-17.3.\u00a0 Contrary to Schiavone’s argument, it is not a regulation and confers norights or liabilities.\u00a0 It is significant, however, as an indication of theSecretary’s intent in issuing Subpart S, given the Secretary’s position in this case thatthe instruction is a precise summary of the standard’s reach as envisioned by thedrafters.\u00a0 Post-adoption statements of intent are not dispositive, but may beaccepted as an aid in interpreting a standard, particularly where, as here, both partiesagree that the instruction is a useful guide to the Secretary’s interpretation of thestandard.[[5]] Section 1926.500(f)(1)(iv) states:The anchoring of posts and framing of members for railings of all types shallbe of such construction that the completed structure shall be capable of withstanding aload of at least 200 pounds applied in any direction at any point on the top rail, with aminimum of deflection.[[6]] Section 1926.500(f)(1)(i) states:For wood railings, the posts shall be of at least 2-inch by 4-inch stockspaced not to exceed 8 feet; the toprail shall be of at least 2-inch by 4-inch stock; theintermediate rail shall be of at least 1-inch by 6-inch stock.[[7]] In his decision, the judge erroneously stated that item 12 of thecitation was withdrawn when, in fact, Schiavone had withdrawn its notice of contest ofthis item.[[8]] In its discretion the Commission may request briefs on all, or onlysome, aspects of a judge’s decision and may limit its review and decision to certainaspects of the case.\u00a0 See Commission Rules 92(c) and 93(a), 29 C.F.R. ?? 2200.92(c) and 2200.93(a). This is, however, a matter of judicial economy and not ajurisdictional bar.”