Bethlehem Steel Corp. v. Occupational Safety & Health Review Commission

OPINION OF THE COURT

WEIS, Circuit Judge.

An Occupational Safety and Health Act standard for the use of industrial overhead cranes includes the phrase “under normal operating conditions.” The Secretary of Labor and the Occupational Safety and Health Review Commission do not agree on whether maintenance operations are covered by the standard. We conclude they are not. Accordingly, we grant a petition for review and set aside a Commission order assessing a penalty against a crane owner.

Petitioner Bethlehem Steel was cited by the Occupational Safety and Health Administration on August 19, 1974 for a nonserious violation of a standard promulgated by the Secretary of Labor. The citation charged that petitioner maintained an unsafe condition near the overhead cranes in the open-hearth plant in Johnstown, Pennsylvania — specifically, that large electrical resistor banks were too close to the area where men worked and exposed them to the hazard of shock or burns. After a hearing, an administrative law judge (ALJ), affirmed the citation, and his action was sustained by an evenly divided Occupational Safety and Health Review Commission.

The dispute centers around two cranes which are part of Bethlehem’s Johnstown plant. Crane No. 502 has a capacity of 35 tons and is located about 35 to 45 feet above the ground. It has two trolleys and runs on tracks and a runway. The cab in which the operator rides is below the rails. There are walkways alongside the crane with clearances varying in width from 26 to 43 inches, and at various points obstructions such as control cabinets and line shafts restrict movement. To enter the cab of Crane 502, the operator must use the walkway.

The other crane, No. 560, is larger and has a rating of 240 tons. It also uses rails, trolleys and a runway but the cab is some distance below the walkway and the operator enters from a separate platform.

The electrical systems for both cranes use banks of resistors which are activated when specific functions of the crane are desired. For example, one bank of resistors operates the hoist mechanism, another, the movement along the rails. The ALJ found that the resistors are in boxes approximately 18 inches long and 6 to 10 inches high, stacked in banks with 25 to 30 resistors set one on top of another, and that one of the banks was 8 or 9 feet high. The resistors are located at various points along the walkways, high above the floor of the plant. If used for a considerable time, the resistors become hot enough to burn the skin and, if energized, they are capable of giving off an electrical shock. There are no protective coverings over the top or front of the resistor banks, but they are guarded on the sides.

In addition to the usual work of lifting and moving heavy objects, the cranes are sometimes used for replacement of light bulbs near the roof of the plant. To carry out this work with Crane 502, an electrician stands on the roof of the cab to replace the bulb. While he is doing this, energy to the crane is cut off. In the course of light bulb replacement, the ALJ found, the electrician sometimes walks near the resistors.

While inspecting, troubleshooting, and repairing, maintenance men use the walkways, but when the cranes perform their usual work of lifting and moving heavy objects, Bethlehem forbids employees from being on the walkways. When normal operations are in progress, the operator remains inside the cab where he is not close enough to touch the resistors.

Generally, when repair work is being performed, the cranes are immobilized and the resistors are not energized. However, on some occasions, in order to detect the cause of a malfunction, it is necessary to operate the crane. This is done under the direction of the maintenance men.

The OSHA regulation which is claimed to have been violated is set forth at 29 C.F.R. § 1910.179(g)(2)(i) under the general heading of “Overhead and Gantry Cranes,” and reads:

“(2) Equipment, (i) Electrical equipment shall be so located or enclosed that live parts will not be exposed to accidental contact under normal operating conditions.”

Bethlehem resisted the citation, arguing that this section applied to the crane operator and his assistant, but not to maintenance personnel. In finding against Bethlehem, the ALJ held that the standard also applied to maintenance personnel and stated that a different interpretation would be contrary to the broad objectives of the Act.

The standard under discussion is derived from the safety code for overhead and gantry cranes prepared by the American National Standards Institute (ANSI) and was adopted by the Secretary of Labor pursuant to authorization contained in 29 U.S.C. § 655(a).¹

No elaboration or explanation of the standard accompanied the original promulgation by ANSI, but in February, 1975, its committee on crane safety did issue an interpretation. The committee consisted of representatives of labor, management, OSHA, manufacturers, and the Armed Forces. The unanimous view was that the standard did not apply to maintenance personnel.²

The ALJ considered the committee report but did not accept it as controlling. We agree that for a number of reasons the report was not binding on OSHA, although the views of experts in the field who are members of the organization which prepared the standards are entitled to consideration. Moreover, despite differing interpretations by several ALJs and the' Review Commission,³ this standard has not been amended or clarified by the Secretary through the exercise of his rulemaking procedures. He does, however, contend that maintenance personnel are among those protected by the standard and presses that position in this appeal.

The courts have differed in determining the scope of review applicable to appeals from the Occupational Safety and Health Review Commission,⁴ and we have said that the Secretary and the Commission should have relatively broad discretion in interpreting the Act and regulations. Budd Co. v. OSHRC, 513 F.2d 201, 205 (3d Cir. 1975). In Budd, the Commission and the Secretary agreed on the meaning of a challenged safety standard, and we upheld their interpretation. Here, however, we are confronted with different circumstances.

The case before us is one of at least three recent OSHA proceedings involving the application of § 1910.179(g)(2)(i) to resistor banks controlling overhead cranes in steel mills. See also Secretary v. United States Steel Corp., OSAHRC Docket No. 10825, 5 OSHC 1289 (April 25, 1977); and Secretary v. Wheeling-Pittsburgh Steel Corp., OSAHRC Docket Nos. 10611, 11327, 14366, 13320, 5 OSHC 1495 (May 12, 1977).⁵ The Review Commission was unable to articulate a majority view in the present case because one of the three commissioners recused and the other two were not in accord. The same question was presented several months later in United States Steel, supra. Although all three commissioners were unable to agree upon the meaning of § 1910.-179(g)(2)(i), the majority held “normal operating conditions” did not include maintenance work on the crane itself. This interpretation is contrary to that reached in the case sub judice, as well as that urged by the Secretary and is somewhat more narrow than the view of ANSI, the organization that developed the rule.

The standard was not one adopted by the Secretary after notice, hearing and evaluation of evidence but was conceived by a nongovernmental agency as a product of its own investigation and research. Consequently, the Secretary’s views are not as persuasive as they would have been if based upon his department’s own review of the problem and deliberate choice of a satisfactory solution. In considering the weight to be given an administrative ruling, the Supreme Court said, “[T]he weight of such a judgment 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.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). See also Adamo Wrecking Co. v. United States,-U.S.-, --n.5, 98 S.Ct. 566, 574 n.5, 54 L.Ed.2d 538 (1978); General Electric Co. v. Gilbert, 429 U.S. 125, 141-42, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976).

Unlike Budd, we do not have an authoritative agency interpretation to assist us since the decisions of the Commission are themselves in conflict and inconsistent with the Secretary’s position. We rely, therefore, on the plain wording of the standard and conclude it does exclude maintenance personnel.

The standard states that “live parts will not be exposed to accidental contact under normal operating conditions” and does not mention maintenance operations. When a repairman is undertaking maintenance operations, the crane is not being used for its intended purpose of lifting and moving heavy objects.⁶ Maintenance procedures often involve disconnecting various safety features which are in effect during “normal” operation and in many instances protective devices themselves must be repaired or given periodic maintenance. It is clear to us that the phrase “normal operating conditions” does not cover maintenance work on the cranes themselves.

The utilization of the cranes for replacement of light bulbs is in a somewhat different category. In that situation, the cranes themselves were not being repaired but were being used for maintenance work on the building. This is not the normal operating activity of the cranes and is merely an alternative way of reaching the light fixtures which apparently are a considerable distance above the floor. Nor is this operation a frequent occurrence. One witness testified the last time he had used crane 502 for changing light bulbs was five years before the hearing. Another witness testified that no bulbs had been changed by that crane for more than a year. Moreover, special safety procedures have been devised for this activity, such as shutting off the power on the crane except when it is moving to a new location.⁷ Thus, the risk of exposure to the resistors by an electrician performing that work is remote. The very existence of the special safeguards described at the hearing is inconsistent with “normal operating conditions.”

We conclude the standard as drafted does not extend to maintenance work on the crane itself or to the changing of light bulbs described at the hearing. The Review Commission and the ALJ, therefore, were in error in finding a violation against petitioner.

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. See Irvington Moore, Division of U.S. Natural Resources, Inc. v. OSHRC, 556 F.2d 431 (9th Cir. 1977). In Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 650, the Court of Appeals for the Fifth Circuit said:

“To strain the plain and natural meaning of words for the purpose of alleviating a perceived safety hazard is to delay the day when the occupational safety and health regulations will be written in clear and concise language so that employers will be better able to understand and observe them.”

We find, that statement pertinent here.

Bethlehem also contends that the cranes having been constructed before 1971 were exempt from coverage by virtue of an intricate interpretation of 29 C.F.R. § 1910.-179(b)(2) by the Occupational Safety and Health Review Commission in OSHRC v. United States Steel, OSAHRC Docket No. 10825, 5 OSHC 1289 (Apr. 25, 1977). Because of our conclusion on the scope of the phrase “normal operating procedure,” we need not meet that issue. Similarly, we do not treat Bethlehem’s constitutional challenges, nor its contention that OSHA unreasonably delayed the issuance of its citation.

Accordingly, the order of the Commission will be set aside.

1 . In pertinént part, § 655(a) reads:

. . the Secretary shall, as soon as practicable during the period beginning with the effective date of this chapter and ending two years after such date, by a rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. . . .”

The drafters of OSHA contemplated that ANSI standards would provide a vehicle for the Secretary’s adoption of national consensus standards. See American Fed’n of Labor & C. I. O. v. Brennan, 530 F.2d 109, 111 n.2 (3d Cir. 1975).

2 . The report said in part:

“This section applies only to electrical equipment that might accidentally be contacted by the operator or assistant in the normal performance of the crane functions. This would prohibit open knife switches, open face-plate controllers, open terminals, etc., in the vicinity of the operator or his assistant during normal operations. Although not specifically stated in the above section, it is assumed that it will be possible to de-energize any exposed electrical equipment if it is necessary for the operator to pass that equipment for access or egress to the cab.

“Note that the quoted section allows the option of locating electrical equipment so that live parts will not be exposed to accidental contact. In other words, open control panels and open resistors can be mounted in a location remote from operating personnel. One of the most common locationfs] for this is the bridge walkway.

“Since maintenance personnel would have to remove cover[s] or open doors in order to inspect or adjust devices, enclosures for this type of electrical equipment provide no additional protection for such personnel. In fact, the need to remove covers for inspection and adjustment introduces the possibility of additional hazards for personnel on the floor below if any loose parts should accidentally fall from the crane. It must also be realized that the power must be on and electrical devices exposed in order for the maintenance personnel to make proper adjustments to the crane. Therefore, whenever any maintenance personnel board a crane, this crane is no longer operating or performing functions within the scope of its intended original design.”

The opinion was issued in response to an inquiry by Bethlehem.

3 . Compare, e. g., Secretary v. Bethlehem Steel Corp., OSAHRC Docket No. 9968 (Feb. 4, 1977) (decision below), with Secretary v. Wheeling Corrugating Co., OSAHRC Docket No. 13320 (Dec. 31, 1975), and Secretary v. United States Steel Corp., OSAHRC Docket No. 10825, 5 OSHC 1289 (Apr. 25, 1977).

4 . Compare, e. g., Brennan v. OSHRC, 513 F.2d 713, 715-16 (8th Cir. 1975), with Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976). See Marshall v. Western Elec., Inc., 565 F.2d 240, 245 (2d Cir. 1977).

5 . In the United States Steel and Wheeling-Pittsburgh Steel cases, the Commission held that the regulation was not mandatory as to cranes installed before August 31, 1971 but was advisory only. It is our understanding that the two cranes in the case sub judice were installed before August 31, 1971. Under the Commission’s later decisions, therefore, Bethlehem would not be in violation. We do not reach that issue here.

6 . Witness Pillock testified that when the crane is performing its material-handling functions, no one is permitted on the walkways except for trouble-shooting or other maintenance purposes. (138a, 150a, 151a). Normal production is not carried on while maintenance men are on the walkways, although obviously some malfunctions can be detected only when the cranes are operating.

The ALJ observed that Pillock testified he had been shocked by a resistor bank during the preceding year 20 or 25 times. However, the ALJ failed to note that the witness said specifically that he had never been shocked on crane 502. The testimony on this point, therefore, clearly had no value since it did not bear on the cranes involved in this case. Furthermore, Mr. Pillock’s testimony does not reveal the circumstances in which he received the shocks.

7 . The electrical foreman described the procedure when crane 560 was used as follows:

“[W]e have to get permission to do this, to get the crane. This is a big project. We put bumpers and lights up, and these red lights are spread across from one runway to the next and it warns the cranes that are operating that we have bumpers and lights up and we are working on that crane, not to come down that area.

“Our men will go out underneath a mercury vapor light that is out. They will have to position the main trolley where it’s, they can put a ladder from the main trolley up to the light, and whenever they have everything in position, the power is pulled to the light, the power is pulled to the crane. They crawl up, they fix the, change the light bulb. Then the power is put back on to the light to see that the light is operating properly, and they come down off of the crane, off of the trolley, put their ladder away, put the switch back in, go take their bumpers and lights down.”