Anthony Crane Rental, Inc. v. Reich

• Decision Date: 01 December 1995
• Docket Number: No. 95-1021,95-1021
• Citation: 70 F.3d 1298,315 U.S. App. D.C. 86
• Parties: , 64 USLW 2400, 17 O.S.H. Cas. (BNA) 1447, 1996 O.S.H.D. (CCH) P 30,953 ANTHONY CRANE RENTAL, INC., Petitioner, v. Robert B. REICH, Secretary of Labor, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1298

70 F.3d 1298

315 U.S.App.D.C. 86, 64 USLW 2400, 17

O.S.H. Cas. (BNA) 1447,

1996 O.S.H.D. (CCH) P 30,953

ANTHONY CRANE RENTAL, INC., Petitioner, v. Robert B. REICH, Secretary of Labor, Respondent.

No. 95-1021.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 2, 1995.

Decided Dec. 1, 1995.

On Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Richard R. Nelson, II, Pittsburgh, PA, argued the cause for petitioner, with whom Wayne C. Holcombe was on the brief.

Bruce Justh, Counsel, United States Department of Labor, argued the cause for respondent, with whom Thomas F. Williamson, Solicitor, Joseph M. Woodward, Associate Solicitor, and Barbara U. Werthmann, Counsel, were on the brief. Charles F. James, Attorney, entered an appearance.

Before WALD, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

This is a case about a crane--and about whether the company that leased the crane can be held accountable for the crane's failure to meet safety standards promulgated under the Occupational Safety and Health Act ("OSH Act"). In this case, Anthony Crane Rental ("ACR"), a company which leases and services cranes, appeals a decision of the Occupational Safety and Health Review Commission ("Commission"), penalizing it for violations of the safety standards for cranes used in construction. ACR argues that because it merely leased the crane to another company and was not engaged in construction work, it should not be held liable under the Occupational Safety and Health Administration ("OSHA") construction safety standards. The Secretary of Labor argues, and the Commission ruled, that because ACR leased the crane, created or had control over the hazards at issue, serviced the crane, and performed work "integral" to the construction project, it can be held accountable under the OSH Act.

We agree, but only in part, and affirm those citations for which there was a specific finding that ACR's repairman was exposed to the hazard. With respect to those hazards for which there was no specific finding that an ACR employee was exposed, we decline at this juncture to accede to the Secretary's urging that we adopt the "multi-employer" doctrine, under which an employer can be penalized for exposing employees of other employers to a hazard. Rather than applying this broad doctrine for the first time in this circuit on the basis of the record before us, we vacate the citations in this second category and remand so that the Commission may clarify whether in these ambiguous situations ACR's repairman was in fact exposed to the hazards. We also vacate another citation, where it is unclear that anyone was exposed to the hazard, and similarly remand for clarification. Accordingly, we affirm in part, vacate in part, and remand the matter to the Commission.

I. BACKGROUND

Anthony Crane Rental operates a facility in West Mifflin, Pennsylvania, which leases, services, and maintains cranes. In 1990, ACR leased a number of cranes to subcontractors engaged in construction at the Greater Pittsburgh International Airport construction project; among these cranes was the equipment at issue here, a conventional truck crane leased to Mid-West Conveyor Construction Services ("Mid-West").

ACR leased most of the cranes under an "owner operated" lease, where it supplied the crane, the crane operator and oiler, and all fuel, maintenance services, and insurance for the crane. However, the crane here was leased pursuant to what ACR calls a "bare rental" lease, the terms of which called for the lessee, Mid-West, to provide the operator and oiler, and arrange for any maintenance or repairs. Though free to hire any company it wished to perform repairs, Mid-West chose ACR to do the servicing on the crane.

The crane was delivered to Mid-West on October 8, 1990. The following day, Jeff Paisley, one of ACR's field mechanics, visited the worksite in response to a complaint about the lowering capability of the crane. He diagnosed the problem, and returned on October 11 to repair it. On October 26, Paisley responded to a request by a Mid-West employee to check the crane because it was not swinging properly. Paisley fixed the problem that day.

Later that day, the boom of the crane collapsed, killing the crane's oiler. After the accident, OSHA investigated the worksite and cited ACR for numerous violations of the construction safety standards for cranes, though none of the alleged violations was related to the fatal accident. OSHA proposed that ACR be fined $82,200 for its violations of Sec. 5(a)(2) of the OSH Act, 29 U.S.C. Sec. 654(a)(2), and its construction industry regulations, 29 C.F.R. Sec. 1910.12.

At the hearing before an Administrative Law Judge ("ALJ"), ACR disputed the factual existence of many of the violations, and argued that because it had leased the crane pursuant to a bare-rental lease, it could not be held liable for OSH Act violations. The ALJ agreed that some of the violations had not been established, but found ACR responsible for others. In addition, the ALJ determined that ACR's activities were sufficiently "integral" to the construction project to justify a finding that ACR was engaged in "construction" within the OSHA regulations. See Secretary of Labor v. Anthony Crane Rental, Inc., OSHRC Docket No. 91-0556 (Mar. 12, 1993) ("ALJ Decision").

The specific violations found by the ALJ were:

(1) Exhaust Pipe Insulation: The exhaust pipe and muffler of the crane, which get hot during operation, were not insulated or otherwise protected from contact. 29 C.F.R. Sec. 1926.550(a)(10). (Citation No. 1, item 1).

(2) Fire Extinguisher: There was no fire extinguisher in the cab of the crane. Id. Sec. 1926.550(a)(14)(i). (Citation No. 1, item 2).

(3) Inspection Records: Although the crane was inspected within a year of its rental to Mid-West, ACR did not maintain written records of the inspection. Id. Sec. 1926.550(a)(6). (Citation No. 2, item 2(e)).

(4) Improperly Adjusted Components: There were four separate violations of 29 C.F.R. Sec. 1926.550(b)(2):

(a) Boom hoist rachet pawls--These devices are intended to prevent the crane's boom from falling if the brake should slip. They were bent and not functioning properly. (Citation No. 2, item 3(c), instance 1).

(b) Hoist drum power down--This mechanism can help prevent a load from falling, and was not functioning properly. (Citation No. 2, item 3(c), instance 2).

(c) Boom cable shroud cover--The rain cover for the cable was not properly adjusted, and might eventually have caused the cable to spool improperly, leading to the boom snapping. (Citation No. 2, item 3(c), instance 3).

(d) Tail shaft governor--This device prevents excessive wear on the machinery. The crane was delivered with the device disconnected. (Citation No. 2, item 3(c), instance 4).

(5) Modifications & Use of Unapproved Replacement Parts: ACR added several parts to the ratchet pawl assemblies without the crane manufacturer's approval, which could result in part of the boom assembly tearing out of the machine. Id. Sec. 1926.550(a)(16), (b)(2). (Citation No. 2, items 5(a) and 5(b)).

(6) Failure to Make Prompt Repairs: Mid-West complained about the power down mechanism immediately after the crane was delivered on October 8, and Paisley observed the problem on October 9. However, Paisley did not repair the mechanism until October 11. Id. Sec. 1926.550(b)(2). (Citation No. 2, item 6(a)).

(7) Preventative Maintenance Program: ACR had an unorganized maintenance program and poor record-keeping. Id. (Citation No. 2, item 7).

The ALJ found, however, that the violations were not willful, and thus reduced the penalty to $3,150. The Commission affirmed the ALJ's findings and penalties, Secretary of Labor v. Anthony Crane Rental, Inc., 16 O.S.H.Cas. (BNA) 2107 (1994) ("Comm'n Decision"), and this appeal followed.

II. DISCUSSION

We will uphold the Commission's factual conclusions if they are "supported by substantial evidence on the record considered as a whole," 29 U.S.C. Sec. 660(a), and will uphold other findings and conclusions of the Commission so long as they are not arbitrary, capricious, an abuse of discretion, or contrary to law, 5 U.S.C. Sec. 706(2)(A). We defer to the Secretary's interpretation of the Act and regulations, upholding such interpretations so long as they are consistent with the statutory language and otherwise reasonable. See Martin v. OSHRC, 499 U.S. 144, 150-51, 111 S.Ct. 1171, 1175-76, 113 L.Ed.2d 117 (1991); S.G. Loewendick & Sons v. Reich, 70 F.3d 1291 (D.C.Cir.1995) (deference is owed only to the Secretary and not the Commission on questions of statutory or regulatory interpretation).

A. Construction Regulations

The OSH Act authorizes the Secretary of Labor to establish safety and health standards, which are binding on employers. 29 U.S.C. Sec. 655. Pursuant to this authority, the Secretary has promulgated the Occupational Safety and Health Standards, also known as the "general industry standards." 29 C.F.R. Part 1910. ¹ In addition, the Secretary has adopted several industry-specific standards, including the construction safety standards under which ACR was cited:

The standards prescribed in part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the 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.

Id. Sec. 1910.12(a). Under this regulatory scheme, the general industry standards apply unless they are preempted by specific industry standards. ² See generally Brock v. Cardinal Indus., 828 F.2d 373, 376 (6th Cir.1987).

If the...