Puffer's Hardware, Inc. v. Donovan, 83-1863
| Citation | 742 F.2d 12 |
| Decision Date | 20 August 1984 |
| Docket Number | No. 83-1863,83-1863 |
| Parties | 11 O.S.H. Cas.(BNA) 2197, 1984-1985 O.S.H.D. ( 27,015 PUFFER'S HARDWARE, INC., d/b/a Beacon Hardware, Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Mary K. Ryan, Boston, Mass., with whom Alan D. Rose, Patricia A. Diamond, and Nutter, McClennen & Fish, Boston, Mass., were on brief, for petitioner.
Laura V. Fargas, Atty., Washington, D.C., with whom Francis X. Lilly, Sol. of Labor, Frank A. White, Associate Sol., Washington, D.C., for Occupational Safety and Health, Dennis K. Kade, Washington, D.C., Counsel for Appellate Litigation, and Judith N. Macaluso, Asst. Counsel for Appellate Litigation, U.S. Dept. of Justice, Arlington, Va., were on brief, for respondent.
Before CAMPBELL, Chief Judge, STEWART, * Associate Justice (Retired), and BOWNES, Circuit Judge.
The general duty clause of the Occupational Safety and Health Act, 29 U.S.C Sec. 654(a)(1), provides that "[e]ach employer shall 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." In this case, the Occupational Health and Safety Review Commission (Commission) held that Puffer's Hardware, Inc., d/b/a Beacon Hardware (Beacon) had committed a "serious violation" of that provision because of the hazardous condition of its elevator. 1 Beacon seeks review of the Commission's order.
Beacon is a small hardware store located in Boston, Massachusetts. At the rear of the store there is a freight elevator. In assessing the dangers created by this elevator, two facts are particularly important. First, the elevator, which is of the "shipper rope" variety, has two open sides--the front and the back. 2 Second, although metal doors on each floor enclosed the elevator shaft, these doors had to be opened in order to call the elevator, and thus, when Puffer's employees used the elevator, these doors did not protect them from falling into the elevator shaft. Once these doors were opened, only a wooden bar at approximately chest level stood between the employees and the open shaft.
On December 27, 1982, a Beacon employee was fatally injured when he was crushed between the floor of the elevator and the wall of the elevator shaft. Shortly thereafter the Occupational Safety and Health Administration (OSHA) learned of the employee's death and sent a compliance officer to inspect the elevator. Following the inspection, OSHA issued two citations for violations of the general duty clause. 29 U.S.C. Sec. 654(a)(1).
The citations alleged that Beacon had failed to furnish its employees with a sufficiently safe workplace because the elevator exposed employees to the possibility of falling into the elevator shaft and to the possibility of being crushed between the elevator and the elevator shaft. 3 The citations stated that a feasible method of eliminating these hazards was to install electronically interlocked gates on the elevator and on the openings to the shaft. These devices would prevent the elevator from moving unless all gates were closed, and prevent the gates from opening unless the elevator was in the landing zone.
Beacon contested the citation, and a hearing was held before an administrative law judge. The ALJ found that the elevator presented a "recognized hazard" within the meaning of the general duty clause because "the hazards presented by [Beacon's] elevator--crushing or broken bones--were obvious and [Beacon] was aware of them." Typescript op. at 7. In addition, he found that interlocking door and landing gates were feasible means of abating the hazards presented by the elevator. Although Beacon contended that its compliance with applicable state law provided a complete defense to the alleged violation, the ALJ rejected this argument, finding that the Occupational Safety and Health Act preempted local regulation. Finally, the ALJ found that the violation was serious within the meaning of 29 U.S.C. Sec. 666(j). 4
Beacon's petition for discretionary review was denied by the Commission and, as a result, the ALJ's report became a final order of the Commission. See 29 U.S.C. Sec. 661(i). Beacon thereafter filed a petition for review in this court.
At the outset, we are met by Beacon's contention that the ALJ erred in finding that the Massachusetts statute applicable to Beacon's elevator is preempted by the Occupational Safety and Health Act. Although we agree with Beacon that the Massachusetts statute is not preempted, we conclude that this does not require us to reverse the ALJ's decision. Our exploration of this question begins with a description of the relevant Massachusetts statutes.
Under Massachusetts law, elevator regulations are promulgated by the Massachusetts Board of Elevator Regulations. See Mass.Gen. Laws Ann. ch. 143, Secs. 68, 69 (West 1958 & Cum.Supp. 1984-85). According to the testimony of OSHA's Supervising Safety Engineer for the Boston area, these regulations require interlocked gates on elevators and elevator landings. However, under chapter 288 of the 1962 Massachusetts Acts, elevators installed prior to the effective date of that Act that meet certain conditions are exempt from the provisions of the revised elevator and escalator regulations. 5 In 1980, chapter 288 was amended. Under the terms of the amendment, which takes effect for elevators like Beacon's on January 1, 1985, elevators must have interlocked doors on the elevator and on each landing to continue to qualify for the exemption from the remaining revised elevator and escalator regulations. 6 Thus, if as Beacon contends, its elevator came within the chapter 288 exemption, as a matter of state law, it would not have been required to install interlocked car and landing doors until January 1, 1985. In the ALJ's view, however, compliance with amended chapter 288 was simply irrelevant to the question whether Beacon had violated the general duty clause because the Massachusetts statute is preempted by the Occupational Safety and Health Act. 7
The Supreme Court has recently reiterated that there are, in general, two ways in which a state statute may be preempted.
If Congress evidences an intent to occupy a given field, any state law falling within that field is preempted. If Congress has not entirely displaced state regulation over the matter in question, state law is still preempted to the extent that it actually conflicts with federal law, that is when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.
Silkwood v. Kerr-McGee Corp., --- U.S. ----, ----, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984) (citations omitted). In our view, the relationship between amended chapter 288 and the Occupational Safety and Health Act does not fall within either of these categories, and as a result, the Massachusetts statute is not preempted.
The express language of the Occupational Safety and Health Act clearly indicates that in the absence of an applicable standard Congress did not intend that OSHA "occupy an entire field of regulation," Michigan Canners & Freezers Association, Inc. v. Agricultural Marketing and Bargaining Board, --- U.S. ----, 104 S.Ct. 2518, 2523, 81 L.Ed.2d 399 (1984), thereby ousting any state regulation. Section 18(a) of the Act, 29 U.S.C. Sec. 667(a), provides that:
Nothing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under section 655 of this title.
Since no federal standard governs the conduct at issue in this case, it is clear that the Massachusetts statute is not preempted as a result of federal occupation of the field of elevator safety regulation.
Further, we do not believe that there is any actual conflict between federal and state law. Since the Massachusetts statute merely exempts certain elevators from complying with state regulations, there is no reason why an employer whose elevator falls within the state exemption should not comply with the requirements of federal law. We also fail to see how this exemption from state regulations could act as an obstacle to the accomplishment of the purposes of the federal statute. We must, therefore, conclude that amended chapter 288 is not preempted by the Occupational Safety and Health Act.
That the Massachusetts statute is valid and exempts certain elevators from state regulations, does not, of course, mean that these elevators are exempt from the requirements of federal law as well. There is nothing in either the language of Act or its history that indicates that Congress intended compliance with the minimum standards of applicable state law to create an exemption from the general duty clause. 8 Absent such evidence, the inescapable conclusion is that Congress did not intend state law to create such an exemption, and as a result, we conclude that Beacon's conduct is governed by that clause. 9
Beacon next contends that the Secretary of Labor abused his discretion by proceeding through adjudication under the general duty clause, rather than by establishing standards governing freight elevators under his rulemaking powers. It notes that the ALJ found that the installation of interlocks is an expensive and time consuming process. As a result, Beacon argues that it would have been fairer to proceed through the rulemaking process and to give Beacon time to install these devices before imposing a penalty for failure to do so. In addition, Beacon argues that as a matter of comity, the Secretary should not have interfered with the state regulatory process. We are, however, aware of nothing in the statute that prevents the Secretary...
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