General Elec. Co. v. Occupational Safety and Health Review Com'n

• Decision Date: 16 August 1978
• Docket Number: No. 432,D,432
• Citation: 583 F.2d 61
• Parties: 6 O.S.H. Cas.(BNA) 1868, 1978 O.S.H.D. (CCH) P 22,945 GENERAL ELECTRIC COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent. ocket 77-4137.
• Court: U.S. Court of Appeals — Second Circuit

Page 61

583 F.2d 61

6 O.S.H. Cas.(BNA) 1868, 1978 O.S.H.D. (CCH) P 22,945

GENERAL ELECTRIC COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.

No. 432, Docket 77-4137.

United States Court of Appeals Second Circuit.

Argued April 12, 1978.

Decided Aug. 16, 1978.

Stanley Schair, New York City (David L. Benetar, Roland C. Radice, Edward J. Cummings, Jr., Mark H. Leeds, Aranow Brodsky Bohlinger Benetar & Einhorn, Schenectady, N. Y., of counsel), for petitioner.

Eric W. Cloud, U. S. Dept. of Labor, Washington, D. C. (Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Allen H. Feldman, Acting Counsel for App. Litigation, U. S. Dept. of Labor, Washington, D. C., of counsel), for respondent.

Before FRIENDLY, GURFEIN and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

General Electric Company asks us to set aside a May 19, 1977, order of the Occupational Safety and Health Review Commission requiring the installation of a standard railing around the top of an oven in its Schenectady, New York, plant. The petition for review is made pursuant to § 11(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(a). We grant the petition, vacate the Commission's order, and set aside the citation upon which it is based.

General Electric is a New York corporation which employs more than 27,000 workers at its Schenectady plant. In October of 1974, an OSHA compliance officer inspected that portion of the Schenectady worksite known as the Small AC Motor Department. The next month, the Secretary of Labor issued eighteen citations for alleged violations of § 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(2). These citations were contested by General Electric, and the matter was heard by Administrative Law Judge James Cronin, Jr., during March and April of 1975. Eventually, all but four of the citations were settled by the parties, and ALJ Cronin approved the settlement. One of the four unsettled citations forms the basis for this appeal.

Nestled among the various machinery of Building 81, Bay C18, of the Small AC Motor Department sits a "dip and bake" oven. Its purpose is to bake insulation onto small motors at certain stages of the manufacturing process. Although the record does not include a photograph of the oven, it is described as being approximately 10'8 tall with an L-shaped top; it is 20 feet long and 12 feet wide. On top of the oven are two circulation and exhaust motors which require occasional maintenance. ¹ In order to reach the motors to perform this maintenance, a worker climbs a ladder permanently affixed to the side of the oven by its manufacturer. Once aloft, the worker walks along a six-foot section of non-skid grating, the length of which is guarded by a railing and toeboard. ² One of the motors is adjacent to this railing, and when maintenance is being performed on it the worker stands approximately one foot from the edge of the oven top. The other motor is ten to fourteen feet from the end of the railing, but when this motor is being worked on the employee is almost four feet from the edge of the oven top.

The issue on this appeal is whether the unguarded portion of the top of the oven is a "platform" within the meaning of regulations promulgated by the Secretary of Labor. The OSHA inspection officer, the Administrative Law Judge, and the Commission each believed that it was and, accordingly, determined that General Electric had violated the Act by failing to guard the perimeter of the oven top with a "standard railing." We disagree.

DISCUSSION

The purpose of the Occupational Safety and Health Act is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . .." 29 U.S.C. § 651(b). Section 5(a)(2) of the Act, the so-called "specific duty" clause, requires each employer to "comply with occupational safety and health standards promulgated under this chapter." 29 U.S.C. § 654(a)(2). ³ The standard concerning "Protection of open-sided floors, platforms, and runways" provides as follows:

Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides,

(i) Persons can pass,

(ii) There is moving machinery, or

(iii) There is equipment with which falling materials could create a hazard.

29 C.F.R. § 1910.23(c)(1). ⁴ "Platform" is defined as:

A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment.

29 C.F.R. § 1910.21(a)(4). Because the oven top was regarded by the Secretary as a "platform" but was not guarded by a "standard railing" or its equivalent, ⁵ General Electric was cited for a violation of § 1910.23(c)(1). ⁶

ALJ Cronin made the following observations regarding the question whether the unguarded portion of the oven top was a "platform" under the standards:

It reasonably may be argued that § 1910.23(c)(1) should be interpreted to apply only to elevated working spaces, 4 feet or (more) above ground level, which are designed primarily for the operation of machinery and equipment and which require employee presence on a predictable and regular basis; and not to spaces where only occasional maintenance or repair work is performed.

He determined, however, that the Commission's majority opinion in the case of General Electric Co., OSHRC Docket No. 2739 (1975), "gave the broadest possible meaning to the term 'platform' " by suggesting "that an elevated area on any structure constitutes a platform whenever work is required to be performed thereon and sufficient protection from an existing falling hazard is not provided." Accordingly, he felt "constrained" to hold that the oven top was a "platform" and that a railing was required. General Electric Co., OSHRC Docket No. 11344 (1975). In affirming this result, the three Commissioners made scant mention of this issue. Chairman Barnako's separate concurring opinion referred to the matter directly, but only to the extent of noting that the oven was used in General Electric's production operation and that the top of the oven was used for "normal maintenance work incident to (the production) operation." General Electric Co., OSHRC Docket No. 11344 (1977) (Barnako, Chairman, concurring).

Our first concern in a case such as this is, of course, the determination of the standard of review we are to employ. As explained in Marshall v. Western Electric, Inc., and OSHRC, 565 F.2d 240, 244 (2d Cir. 1977), "this court has consistently held that its role 'is to decide whether the Commission's interpretation of the Regulation is unreasonable and inconsistent with its purpose, the normal standard for review of the interpretation of a regulation by the agency charged with its administration.' " ⁷ See Brennan v. OSHRC and Gerosa, Inc., 491 F.2d 1340, 1344 (2d Cir. 1974); Brennan v. OSHRC and Underhill Construction Corp., 513 F.2d 1032, 1038 (2d Cir. 1975). See also Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). "The corollary to this proposition is that a court need not defer to an interpretation it finds unreasonable." Langer Roof & Sheet Metal, Inc. v. Secretary of Labor and OSHRC, 524 F.2d 1337, 1339 (7th Cir. 1975); See General Electric Co. v. Gilbert, 429 U.S. 125, 140-46, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). Moreover, it has also been made clear that, in considering the proper deference to be given to an administrative ruling, "(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, 434 U.S. 275, 287 n.5, 98 S.Ct. 566, 574 n.5, 54 L.Ed.2d 538 (1978); Bethlehem Steel Corp. v. OSHRC and Marshall, 573 F.2d 157, 160 (3d Cir. 1978). Here, although the Commission's consideration of the meaning of the term "platform" appears to have been relatively thorough, we find its reasoning in this case flawed and the result inconsistent with other pronouncements.

The regulation defines "platform" as "(a) working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment." 29 C.F.R. § 1910.21(a)(4). We do not read this definition to apply to every flat surface over four feet high upon which employees may some day stand while performing some task related to their employment and the operations of their employer. An elevated flat surface does not automatically become a "working space" and a "platform" merely because employees occasionally set foot on it while working. Had the authors of the regulation intended the term "platform" to include every elevated flat surface upon which employees could alight, they no doubt would have forgone the opportunity to limit the definition by using the phrase "such as a balcony or platform for the operation of machinery and equipment." The meaning of one term may be determined by reference to the terms it is associated with, and where specific words follow a general word, the specific words restrict application of the general term to things that are similar to those enumerated. See 2A Sutherland, Statutory Construction §§ 47.16 (Noscitur a sociis ), 47.17 (Ejusdem generis ) (4th ed. 1973). We do not believe that infrequent,...