Donovan v. Daniel Marr & Son Co.

• Decision Date: 05 March 1985
• Docket Number: No. 84-1756,I,AFL-CI,84-1756
• Citation: 763 F.2d 477
• Parties: 12 O.S.H. Cas.(BNA) 1361, 1984-1985 O.S.H.D. ( 27,313 Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. DANIEL MARR & SON CO., Respondent. International Association of Bridge, Structural and Ornamental Iron Workers, and Building and Construction Trades Department,ntervenors. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 477

763 F.2d 477

12 O.S.H. Cas.(BNA) 1361, 1984-1985 O.S.H.D. ( 27,313

Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. DANIEL MARR & SON CO., Respondent International Association of Bridge, Structural and Ornamental Iron Workers, and Building and Construction Trades Department, AFL-CIO Intervenors.

No. 84-1756.

United States Court of Appeals First Circuit.

Heard March 5, 1985.

Decided June 4, 1985.

Domenique Kirchner, Washington, D.C., with whom Francis X. Lilly, Sol. of Labor, Frank A. White, Associate Sol. for Occupational Safety and Health, and Judith N. Macaluso, Asst. Counsel for Appellate Litigation, U.S. Dept. of Labor, Washington, D.C., were on brief, for Raymond J. Donovan, Secretary of Labor.

Victoria L. Bor, Washington, D.C., with whom Elihu I. Leifer, Sherman, Dunn, Cohen, Leifer & Counts, Washington, D.C., Victor Van Bourg and Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., were on brief, for intervenors.

Leo A. Reed, Norwell, Mass., for respondent.

Before CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and RE ^*, Judge.

LEVIN H. CAMPBELL, Chief Judge.

The Secretary of Labor petitions for review under the provisions of the Occupational Safety and Health Act of 1970 ("OSHA"), 29 U.S.C. Sec. 651 et seq., of an order of the Occupational Safety and Health Review Commission ("the Commission") vacating a citation issued against Daniel Marr & Son Co. ("Marr") for an alleged violation of one of the Occupational Safety and Health Regulations promulgated by the Secretary for the construction industry. We reverse.

I. FACTS

Respondent Marr is a Massachusetts steel erection company. In April-May 1982 Marr was erecting the steel frame of a building at the Seabrook Nuclear Power Plant in Seabrook, New Hampshire, which was to house a turbine generator. About 115 feet high, the building was to have only two floors, at heights of 50 and 75 feet.

On May 11-12, 1982, OSHA compliance officer David Berard inspected Marr's worksite in response to a complaint by the International Association of Bridge, Structural and Ornamental Ironworkers, Local Union No. 474 ("the Union") about the lack of protection against falls for employees working as "connectors." Connectors put together, in a level-by-level fashion, the steel members which form the basic skeletal frame of a building. Other employees then work on the finished section of the frame. The connectors receive pieces of steel from the crane, place them in their proper location and insert bolts to hold them in place. While carrying out this operation, they are said to hang onto the steel beams "by two legs and one arm"; theirs may be the most dangerous work in the industry.

At the time of his inspection, Mr. Berard observed four connectors working on beams 115 feet above the ground at the top of the frame. The men were not "tied off" with safety belts, as the nature of their work required them to be mobile to avoid swinging girders being placed in line by the cranes. No safety nets or other fall protection devices were located beneath, leaving them exposed to a 40-foot fall were they to topple off a beam so as to drop inside the structure (i.e., to the floor 75 feet above ground level), and to a 115-foot fall were they to drop to the outside (i.e., to the ground).

After the connectors finished a level, but not before, Marr's policy was to install interior safety nets for the other employees but, even then, not to install nets capable of intercepting exterior falls.

Mr. Berard issued citations against Marr for serious violations ¹ of 29 C.F.R. Sec. 1926.105(a), for failing to protect its connectors by safety nets or equivalents on the outside of the building, ² and of 29 C.F.R. Sec. 1926.750(b)(1)(ii), for failing to protect the connectors with safety nets or some equivalent protection on the inside portion of the structure. ³ The company contested both citations. The Union elected party status in the administrative proceedings pursuant to 29 U.S.C. Sec. 659(c) and 29 C.F.R. Sec. 2200.20(a).

In respect to the first citation, Marr contended that section 1926.105(a) was a general standard that was preempted by more specific steel erection standards contained in subpart R of the Occupational Safety and Health Regulations for Construction, 29 C.F.R. Secs. 1926.750-52, in particular by section 1926.750(b). ⁴ These latter standards are understood as not requiring safety nets to guard against falls to the outside of structures. Marr also argued that it had never been the practice in the steel erection industry to use exterior nets, and that the Secretary had not shown, as he should, that a reasonably prudent employer would have provided exterior nets.

The administrative law judge affirmed both citations. Marr then sought review before the Occupational Safety and Health Review Commission of the section 1926.105(a) exterior net citation only. The Commission reversed the ALJ's decision by a two-to-one vote, holding that the section 1926.105(a) standard, which applied to the construction industry generally, was inapplicable here because preempted by the more specific standards for the steel erection industry contained in subpart R of the Occupational Safety and Health Regulations, 29 C.F.R. Secs. 1926.750-52, and, in particular, by section 1926.750(b). See note 4, supra.

II.

In deciding that exterior nets were not required, the Commission relied upon its decision in a case decided that same year, Adams Steel Erection, Inc., 1984 O.S.H.D. (CCH) p 26,976, petition for review filed, No. 84-3586 (3d Cir., Sept. 14, 1984). In Adams the Commission set out its reasons for believing that section 1926.105(a) is preempted by subpart R. ⁵ Addressing the Secretary's argument that subpart R was never meant to address the hazards of a fall toward the outside perimeter of a building (thus leaving in effect the general safety net provision, section 1926.105(a), see note 2, supra ), the Commission said,

The absence of a specific perimeter safety net requirement in subpart R may well have been the result of a deliberate decision by the drafters of subpart R not to require such protection because, for example, it would interfere with the steel erection process, it would negatively affect the stability of the building, it was unnecessary or it would lead to some other undesirable consequences. As the Commission observed in Daniel Construction, 9 BNA OSHC at 1858, 1981 CCH OSHD at p. 31,624, interpreting these standards as cumulative produces the "illogical" result that steel erection may be "governed by more general standards not drafted with steel erection specifically in mind." ... Accordingly it seems evident that "filling in" supposed "gaps" or "interstices" in a comprehensive regulatory scheme with general standards that were not developed for application to a particular work situation can and often will result in reversing a deliberate decision not to require certain protective measures in response to that particular situation.

Adams Steel Erection, Inc., 1984 O.S.H.D. (CCH) at 34,648-49.

The Secretary of Labor joined by the intervenor Union challenges this conclusion and urges us to reverse the Commission's ruling.

III.

To determine whether section 1926.105(a) is preempted by the steel erection standards of subpart R, we look first at 29 C.F.R. Sec. 1910.5(c)(1) and (2) which explain how to apply the Secretary's standards:

If a particular standard is specifically applicable to a condition, practice, means, method, operation or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation or process....

29 C.F.R. Sec. 1910.5(c)(1), and,

On the other hand, any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for that industry, ... to the extent that none of such particular standards applies....

29 C.F.R. Sec. 1910.5(c)(2).

The Secretary contends that no particular standard in subpart R is "specifically applicable" to exterior falls from perimeter beams, ⁶ and that, therefore, the more general standard of section 1926.105(a) mandating safety nets "when workplaces are more than 25 feet above the ground or water surface, or other surfaces" comes into play pursuant to the quoted language of 29 C.F.R. Sec. 1926.105(c)(2). ⁷

We think the Secretary's application of the principles set out in 29 C.F.R. Sec. 1910.5(c)(1) and (2) to the regulations in question is persuasive. Given those principles, we have trouble with the Commissions's insistence that the specific steel erection standards preempt the more general safety net standard even in those situations where the specific standards do not apply. It is hard to square the Commission's inference in Adams of a possible "deliberate decision [through silence] not to require certain protective measures" with the statement in section 1910.5(c)(2) that "any standard shall apply ... to the extent that none of such particular standards applies...."

The Commission goes too far, moreover, when it says that it is "illogical" that steel erection "may be governed by the more general standards not drafted with steel erection specifically in mind." Adams, 1984 O.S.H.D. (CCH) at 34,649. The Secretary, who drafted the regulations on applicability of standards, plainly believes otherwise. He has construed his regulations on the applicability of standards as setting out a scheme in which particular standards supersede general ones, see, e.g., Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 893, 88 L.Ed. 1163 (1944), only to the extent the particular standards are "specifically applicable." Otherwise "[t]he general safety standards complement the specific ... by filling the interstices necessarily remaining after promulgation of the specific standards." Dravo Corp. v. OSHRC, 613 F.2d...