DocketNumber： 92-2237
Filed Date： 8/20/1993
Status： Precedential
Modified Date： 9/21/2015
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 92-2237
ROBERT B. REICH, SECRETARY OF LABOR,
Petitioner,
v.
SIMPSON, GUMPERTZ & HEGER, INC.,
AND OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,
Respondents.
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ON PETITION FOR REVIEW OF A DECISION OF THE
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
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Before
Breyer, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Bruce Justh, with whom Marshall J. Breger, Solicitor of Labor,
___________ ___________________
Judith E. Kramer, Deputy Solicitor of Labor, and Joseph M. Woodward,
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Associate Solicitor for Occupational Safety and Health, were on brief
for petitioner.
David J. Hatem, with whom Maura A. Greene and Burns & Levinson,
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were on brief for respondents.
Mark A. Casso, Arthur E. Schwartz, Elizabeth A. Davis, Robert C.
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Gombar, Arthur G. Sapper, and McDermott, Will & Emery on brief for The
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American Consulting Engineers Council, The National Society of
Professional Engineers, and The American Institute of Architects,
amici curiae.
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August 20, 1993
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STAHL, Circuit Judge. In this appeal, the
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Secretary of Labor ("the Secretary") challenges a decision of
the Occupational Safety and Health Review Commission ("the
Commission") granting summary judgment1 in favor of appellee
Simpson, Gumpertz & Heger, Inc. ("SGH"). We affirm.
I.
I.
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Standard of Review
Standard of Review
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We review the Commission's decision to determine
whether its factual findings are supported by substantial
evidence in the record, 29 U.S.C. 660(a), and whether its
legal conclusions are "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law[.]" 5
U.S.C. 706(2)(A). See also National Eng'g & Contracting
___ ____ _____________________________
Co. v. Occupational Safety & Health Admin., 928 F.2d 762, 767
___ ___________________________________
(6th Cir. 1991). In making these determinations, we must be
mindful "``that an agency's construction of its own
regulations is entitled to substantial deference.'" Martin
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v. Occupational Safety & Health Review Comm'n, 499 U.S. 144,
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, 111 S. Ct. 1171, 1175 (1991) (quoting Lyng v. Payne, 476
_ ____ _____
U.S. 926, 939 (1986)). Where the meaning of a regulation is
ambiguous, the reviewing court should give effect to the
agency's reasonable interpretations, i.e., interpretations
which "``sensibly conform[] to the purpose and wording of the
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1. The Commission's Rules of Procedure incorporate by
reference Fed. R. Civ. P. 56. See 29 C.F.R. 2200.61
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(1992).
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regulation[] . . . . '" Id. at , 111 S. Ct. at 1175
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(citation omitted) (quoting Northern Indiana Pub. Serv. Co.
________________________________
v. Porter County Chapter of Izaak Walton League of America,
__________________________________________________________
Inc., 423 U.S. 12, 15 (1975)). In contrast, no deference is
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warranted where the agency's interpretation is inconsistent
with the wording of the regulation. Id. at , 111 S. Ct.
___ ____
at 1180 ("[W]e emphasize that the reviewing court should
defer to the Secretary only if the Secretary's interpretation
is reasonable.") (emphasis in original).
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II.
II.
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Factual Background
Factual Background
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Viewing the record in a light most favorable to the
Secretary, we summarize the relevant facts. The events
surrounding this litigation arise out of the construction of
the Fuller Laboratories Building ("the project") at Worcester
Polytechnic Institute ("WPI") in Worcester, Massachusetts.
Sometime in 1987, WPI, the owner of the project, hired
Payette Associates, Inc. ("Payette"), an architectural firm,
to serve as project architect. In June 1987, SGH, an
engineering firm located in Arlington, Massachusetts,
contracted with Payette to perform certain structural
engineering services in connection with the project. The
general contractor for the project was Francis Harvey & Sons,
Inc. ("Harvey").
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The building structure was to consist of five
floors of poured concrete placed over a base of steel and
temporary metal decking. As general contractor, Harvey was
responsible for generating a set of "shop drawings" for the
metal decking indicating, inter alia, any shoring necessary
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to support the decking during the pouring of the concrete.
As design engineer, SGH had a duty to review the shop
drawings submitted by Harvey for conformance with the
project's design concepts and contract specifications.2
On or about July 9, 1988, Harvey submitted the shop
drawings of the metal decking to SGH for review. In
reviewing those shop drawings, SGH made various notations on
the drawings indicating potential trouble spots. One such
notation suggested that additional shoring be placed in the
area adjacent to the building's elevator shaft.
According to the shop drawings, an area on floor 2
of the building was to be composed of metal decking, four and
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2. With the exception of a few provisions added by the
parties, SGH's contract with Payette consisted entirely of
the standard form language contained in a document published
by the American Institute of Architects. SGH's contract
specified, inter alia, that SGH would not be responsible for
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the "construction means, methods, techniques, sequences or
procedures, for safety precautions and programs in connection
with the [w]ork . . . ." Rather, the contract assigns those
duties to the general contractor: "The [c]ontractor shall
supervise and direct the [w]ork, using his best skill and
attention. He shall be solely responsible for all
construction means, methods, techniques, sequences and
procedures and for coordinating all portions of the [w]ork
under the [c]ontract."
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three-quarters inches of concrete, a layer of insulation, and
another three inches of concrete topping ("the multi-layered
area"). The drawings did not indicate, however, the amount
of time that should elapse between the first and second pours
of concrete in this area. SGH made no notations or revisions
concerning the indicated shoring of the metal decking in the
multi-layered area.
On December 13, 1988, Harvey's superintendent, Mr.
Dwight Mitchell, began pouring the first layer of concrete in
the multi-layered area. He planned to pour the first layer
of concrete, place the layer of insulation, and pour the
second layer of concrete topping in one day. After the first
layer of concrete was poured in the multi-layered area,
Mitchell noticed that a section of the metal decking in a
different area of floor 2 was beginning to sag. Concerned
about the amount of deflection, Mitchell telephoned Paul
Kelley, SGH's project manager, at Kelley's office in
Arlington, Massachusetts. Mitchell informed Kelley of the
deflection he had observed and explained his plan for
completing the floor that day. When told that the amount of
deflection was approximately three-eighths to one-half inch,
Kelley stated that that amount of deflection was "normal."
Mitchell then mentioned the multi-layered area, and
Kelley asked him how he planned to proceed. Mitchell
explained that he intended to pour both layers of concrete in
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one day. According to Mitchell, Kelley "thought for a
minute" and told him "I don't see any problem with it . . .
." Mitchell testified that, as a result of this
conversation, he "felt assured that it was all safe to just
go ahead as we had planned on doing . . . ."
At some time after this conversation, Mitchell
began pouring the second layer of concrete in the multi-
layered area. The metal decking in the multi-layered area,
however, was not properly shored and could not support the
weight of both layers of wet concrete. As a result, the
metal decking in that area collapsed, injuring five workers.
Importantly, SGH had no employees at the worksite.3 On
March 13, 1989, the Secretary issued a citation to SGH
pursuant to 29 C.F.R. 1926.703(a)(1),4 for failure to
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3. The record reveals that SGH employees visited the
construction site on a periodic basis to conduct inspections
and attend meetings.
4. 29 C.F.R. 1926.703(a)(1) provides:
1926.703 Requirements for cast-in-
1926.703 Requirements for cast-in-
place concrete.
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 be
reasonably anticipated to be applied to
the formwork. Formwork which is
designed, fabricated, erected, supported,
braced and maintained in conformance with
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shore adequately a lateral load. The Secretary proposed a
$1000 penalty for the alleged violation. SGH contested the
citation in a letter to the Department of Labor dated April
12, 1989. On June 7, 1989, the Secretary then filed a
complaint against SGH before the Commission, requesting that
the citation and proposed penalty be affirmed.
On September 24, 1990, SGH filed a motion for
summary judgment, arguing that the citation should be
vacated. On November 27, 1990, the administrative law judge
("ALJ") heard oral argument, and on February 26, 1991,
granted the motion and vacated the citation. Subsequently,
on April 11, 1991, the Secretary filed a petition for review
before the Commission. The Commission heard oral argument on
May 28, 1992, and on August 28, 1992, issued a lengthy
decision affirming the ALJ. This appeal followed.
III.
III.
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Discussion
Discussion
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Congress enacted the Occupational Safety and
Health Act of 1970, 29 U.S.C. 651-678 ("OSHA"), to "assure
so far as possible every working man and woman in the Nation
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the Appendix to this section will be
deemed to meet the requirements of this
paragraph.
The Secretary also issued a citation to SGH pursuant to
29 C.F.R. 1926.703(a)(2) for failure to have the plans for
formwork, including all revisions, available at the jobsite.
The Secretary has, however, withdrawn this citation.
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safe and healthful working conditions and to preserve our
human resources[.]" 29 U.S.C. 651(b). To that end, OSHA
placed primary responsibility on employers, those individuals
who oversee and control the work environment, to achieve
compliance with its standards and insure a safe workplace.
See S. Rep. No. 1282, 91st Cong., 2d Sess. 9 (1970),
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reprinted in 1970 U.S.C.C.A.N. 5177, 5186 ("Employers have
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primary control of the work environment and should insure
that it is safe and healthful.").
Pursuant to OSHA, an employer's duties flow from
two sources. First, OSHA imposes a general duty upon each
"employer"5 to "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[.]" 29 U.S.C.
654(a)(1). Second, OSHA imposes a specific duty upon
employers to abide by the occupational safety and health
standards promulgated by the Secretary. See 29 U.S.C.
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654(a)(2).6
The Secretary has promulgated occupational safety
and health standards, otherwise known as "general industry
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5. As defined in 29 U.S.C. 652(5), an "employer" is "a
person engaged in a business affecting commerce who has
employees . . . ."
6. 29 U.S.C. 654(a)(2) provides that "[e]ach employer . .
. shall comply with occupational safety and health standards
promulgated under this chapter."
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standards." See 29 C.F.R. Part 1910 (1992). The Secretary
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has also enacted industry-specific standards, which, as
authorized by the Act, see 29 U.S.C. 652(10), are borrowed
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from previously enacted federal statutes and regulations. 29
C.F.R. 1910.12-.16 (1992).
Indeed, shortly after the Act became effective, the
Secretary summarily adopted a group of federal standards for
the construction industry that had previously been
promulgated under the Construction Safety Act of 1969, 40
U.S.C. 333. See 29 C.F.R. Part 1926 (1992). 29 C.F.R.
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1910.12(a) defines the regulatory universe to which these
construction standards apply:
The [Construction Safety Act] standards
prescribed in part 1926 of this chapter
are adopted as occupational safety and
health standards under section 6 of 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.
In the proceedings below, the parties characterized
the dispositive issue in the case as whether SGH's employees
were engaged in "construction work" as defined by the
regulation.7 Relying upon previous Commission precedent,
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7. The phrase "construction work" is defined as "work for
construction, alteration, and/or repair, including painting
and decorating." 29 C.F.R. 1910.12(b).
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see Skidmore, Owings & Merrill, 5 BNA OSHC 1762 (1977), the
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Commission held that design professionals could only be found
liable under Part 1926 to the extent that they exercise
"substantial supervision" over the "actual construction."
The Commission found that SGH's actions could not, even when
viewed in a light most favorable to the Secretary, constitute
"substantial supervision." It therefore affirmed the ALJ's
decision to grant SGH's motion for summary judgment.
After carefully reviewing the record, we agree that
SGH was entitled to summary judgment. However, we base our
conclusion on grounds different than those relied upon below.
See Resare v. Raytheon Co., 981 F.2d 32, 44-45 n.30 (1st Cir.
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1992) (noting that we are free to affirm decision below "``on
any ground supported in the record even if the issue was not
pleaded, tried or otherwise referred to in the proceedings
below'") (quoting Chamberlin v. 101 Realty, Inc., 915 F.2d
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777, 783 n.8 (1st Cir. 1990)).
The Secretary maintains that SGH can be found
liable under Part 1926 even though it had no employees at the
__
construction site. In light of the plain meaning of 29
C.F.R. 1910.12(a), we find such an interpretation
unreasonable.
Section 1910.12(a) requires "each employer" to
"protect the employment and places of employment of each of
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his employees . . . ." (emphasis added). The dispositive
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question, in our opinion, is whether the construction site at
WPI was a "place[] of employment" which SGH had a duty under
OSHA to protect. The record reveals that SGH employees were
not on the jobsite on a daily or even weekly basis. SGH did
not have an office or a trailer at the site. On the date of
the accident, there were no SGH employees on the site, and
when the conversation took place between Kelley and Mitchell
on that morning, Kelley was at his office in Arlington,
Massachusetts. Under these circumstances, we do not think
that the WPI construction site is a "place[] of employment"
which SGH had a duty under OSHA to protect.8
In our opinion, adoption of the Secretary's
interpretation would expand the meaning of the phrase "places
of employment" beyond any reasonable boundaries. For
example, suppose that a construction equipment leasing
company sends an employee to the site to inspect or perform
maintenance upon a piece of its leased equipment, and that
the employee gives gratuitous advice to the user of the
equipment which allegedly causes an on-site accident. Under
the Secretary's interpretation, the leasing company could be
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8. We should make perfectly clear that SGH might well have
breached some other legal duty in assuring Harvey's crew that
it was safe to pour the concrete. We express no view on this
point. Our holding, rather, is a narrow one: that OSHA
regulation 29 C.F.R. 1910.12(a), did not require SGH to
maintain a safe construction site at WPI.
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liable under an OSHA provision directing that it provide a
safe working environment for its own employees. Simply put,
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we cannot, given the plain language of the regulation and the
dictates
ofcommonsense,acceptsuchanexpansivenotionofliability.9
Finally, we have not found, nor has the Secretary
cited, any cases supporting the Secretary's interpretation of
the phrase "places of employment." Indeed, in every case
cited by the Secretary, the employer had employees at the
actual construction site. Providing as much deference as
possible to the Secretary's interpretation, we still do not
see how one could reasonably read the Department's regulation
as he has done. If the Secretary believes broader liability
is appropriate, the solution is simply to amend the
regulation so that it includes places where the employer's
own employees have never worked--assuming, of course, he has
the authority to do so under OSHA (a matter on which we
express no view). It is not to ignore the regulation's
present, more restrictive, language. The Commission's
decision is affirmed.
affirmed
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9. We also note that the Secretary's interpretation might
have the perverse result of causing an employer to discourage
his/her employees from making on-site safety inspections for
fear of being subjected to OSHA liability.
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Northern Indiana Public Service Co. v. Porter County ... , 96 S. Ct. 172 ( 1975 )
Cyntha J. RESARE, Plaintiff, Appellant, v. RAYTHEON COMPANY,... , 981 F.2d 32 ( 1992 )
national-engineering-contracting-company-and-meroe-contracting-supply , 928 F.2d 762 ( 1991 )
Martin v. Occupational Safety & Health Review Commission , 111 S. Ct. 1171 ( 1991 )