803 F.2d 999 (9th Cir. 1986), 85-7661, Brock v. Bechtel Power Corp.

Docket Nº:85-7661.
Citation:803 F.2d 999
Party Name:William E. BROCK, Secretary of Labor, Petitioner, v. BECHTEL POWER CORPORATION, Respondent.
Case Date:October 30, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 999

803 F.2d 999 (9th Cir. 1986)

William E. BROCK, Secretary of Labor, Petitioner,



No. 85-7661.

United States Court of Appeals, Ninth Circuit

October 30, 1986

Argued and Submitted Sept. 11, 1986.

Page 1000

John Shortall, U.S. Dept. of Labor, Washington, D.C., for petitioner.

Russell J. Thomas, Jr., Detroit, Mich., for respondent.

Petition to Review a Decision of the Occupational Safety and Health Review Commission.

Before CHOY, ALARCON and BEEZER, Circuit Judges.

ALARCON, Circuit Judge:

William E. Brock, the Secretary of Labor (hereinafter Secretary), appeals from the decision of the Occupational Safety and Health Review Commission (hereinafter Commission) vacating a citation charging Bechtel Power Corporation (hereinafter Bechtel) with a violation of 29 C.F.R. Sec. 1926.550(a)(9) (1985). This occupational safety standard requires accessible areas within the swing radius of the rear of the rotating superstructure of a crane to be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane. The issue in this case is whether the standard set forth in 29 C.F.R. Sec. 1926.550(a)(9) applies to the crane operator and oiler who must work inside the barricaded area. We deny the Secretary's petition for review and affirm the Commission's order vacating the citation. The Secretary's position that 29 C.F.R. Sec. 1926.550(a)(9) was violated by Bechtel's practice of instructing oilers to work inside the barricade is not supported by the plain language of the standard.


This court has jurisdiction to review the Commission's order pursuant to 29 U.S.C. Sec. 660(b) (1982).


We must uphold the Commission's decision unless it is arbitrary and capricious, not in accordance with the law, or in excess of the authority granted by the Occupational Safety and Health Act, 29 U.S.C. Secs. 651-678 (hereinafter the Act). Phelps Dodge Corp. v. Occupational Safety & Health Review Commission, 725 F.2d 1237, 1239 (9th Cir.1984) (citing Donovan v. Castle & Cooke Foods, 692 F.2d 641, 645 (9th Cir.1982)). Generally, substantial weight is accorded to the Secretary's interpretation of his own regulation, when affirmed by the Commission. Castle & Cooke, 692 F.2d at 646. However, in a case such as this, where the Secretary and the Commission disagree as to the meaning and application of the regulation, the court need not grant such deference to the Secretary's interpretation. Id. In Marshall v. Anaconda Co., 596 F.2d 370 (9th Cir.1979) we stated that "[a]lthough we have recognized that the Secretary's interpretation of his own regulation, when affirmed by the Commission, must be accorded substantial weight, it carries much less weight when at odds with the Commission's." Id. at 374 (citation omitted). Instead, we will defer to the Commission's expertise in exercising the independent adjudicatory function assigned it by the Act because "it is the Commission and not the Secretary which is charged with the final administrative adjudication of the Act. 29 U.S.C. Sec. 659." Brennan v. Occupational Safety & Health Review Commission, 513 F.2d 713, 715-16 (8th Cir.1975); 29 U.S.C. Sec. 651(b)(3) (the Act created the "Commission for carrying out adjudicatory functions"); Donovan v. A. Amorello & Sons, Inc., 761 F.2d 61, 62-66 (1st Cir.1985) (collecting cases); but see Brock v. Schwarz-Jordan, Inc., 777 F.2d 195, 197 (5th Cir.1985) ("the Secretary's interpretation 'is controlling as long as it is one of several reasonable interpretations, although it may not appear as reasonable as some other' ") (quoting Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th...

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