Bethlehem Steel Corp. v. Occupational Safety and Health Review Com'n, s. 77-1425 and 77-1438

• Decision Date: 06 March 1978
• Docket Number: Nos. 77-1425 and 77-1438,s. 77-1425 and 77-1438
• Citation: 573 F.2d 157
• Parties: 6 O.S.H. Cas.(BNA) 1440, 1978 O.S.H.D. (CCH) P 22,628 BETHLEHEM STEEL CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and F. Ray Marshall, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

Page 157

573 F.2d 157

6 O.S.H. Cas.(BNA) 1440, 1978 O.S.H.D. (CCH) P 22,628

BETHLEHEM STEEL CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and F. Ray Marshall, Secretary of Labor, Respondents.

Nos. 77-1425 and 77-1438.

United States Court of Appeals Third Circuit.

Argued Jan. 10, 1978.

Decided March 6, 1978.

Denis V. Brenan, Philadelphia, Pa., for petitioner; Morgan, Lewis & Bockius, Philadelphia, Pa., of counsel.

Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Allen H. Feldman, Asst. Counsel for App. Litigation, Linda S. Lewis, Atty., U. S. Dept. of Labor, Washington, D. C., for respondents.

Before ADAMS, BIGGS and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

An Occupational Safety and Health Act standard for the use of industrial overhead cranes includes the phrase "under normal operating conditions." The Secretary of Labor and the Occupational Safety and Health Review Commission do not agree on whether maintenance operations are covered by the standard. We conclude they are not. Accordingly, we grant a petition for review and set aside a Commission order assessing a penalty against a crane owner.

Petitioner Bethlehem Steel was cited by the Occupational Safety and Health Administration on August 19, 1974 for a nonserious violation of a standard promulgated by the Secretary of Labor. The citation charged that petitioner maintained an unsafe condition near the overhead cranes in the open-hearth plant in Johnstown, Pennsylvania specifically, that large electrical resistor banks were too close to the area where men worked and exposed them to the hazard of shock or burns. After a hearing, an administrative law judge (ALJ), affirmed the citation, and his action was sustained by an evenly divided Occupational Safety and Health Review Commission.

The dispute centers around two cranes which are part of Bethlehem's Johnstown plant. Crane No. 502 has a capacity of 35 tons and is located about 35 to 45 feet above the ground. It has two trolleys and runs on tracks and a runway. The cab in which the operator rides is below the rails. There are walkways alongside the crane with clearances varying in width from 26 to 43 inches, and at various points obstructions such as control cabinets and line shafts restrict movement. To enter the cab of Crane 502, the operator must use the walkway.

The other crane, No. 560, is larger and has a rating of 240 tons. It also uses rails, trolleys and a runway but the cab is some distance below the walkway and the operator enters from a separate platform.

The electrical systems for both cranes use banks of resistors which are activated when specific functions of the crane are desired. For example, one bank of resistors operates the hoist mechanism, another, the movement along the rails. The ALJ found that the resistors are in boxes approximately 18 inches long and 6 to 10 inches high, stacked in banks with 25 to 30 resistors set one on top of another, and that one of the banks was 8 or 9 feet high. The resistors are located at various points along the walkways, high above the floor of the plant. If used for a considerable time, the resistors become hot enough to burn the skin and, if energized, they are capable of giving off an electrical shock. There are no protective coverings over the top or front of the resistor banks, but they are guarded on the sides.

In addition to the usual work of lifting and moving heavy objects, the cranes are sometimes used for replacement of light bulbs near the roof of the plant. To carry out this work with Crane 502, an electrician stands on the roof of the cab to replace the bulb. While he is doing this, energy to the crane is cut off. In the course of light bulb replacement, the ALJ found, the electrician sometimes walks near the resistors.

While inspecting, troubleshooting, and repairing, maintenance men use the walkways, but when the cranes perform their usual work of lifting and moving heavy objects, Bethlehem forbids employees from being on the walkways. When normal operations are in progress, the operator remains inside the cab where he is not close enough to touch the resistors.

Generally, when repair work is being performed, the cranes are immobilized and the resistors are not energized. However, on some occasions, in order to detect the cause of a malfunction, it is necessary to operate the crane. This is done under the direction of the maintenance men.

The OSHA regulation which is claimed to have been violated is set forth at 29 C.F.R. § 1910.179(g)(2)(i) under the general heading of "Overhead and Gantry Cranes," and reads:

"(2) Equipment. (i) Electrical equipment shall be so located or enclosed that live parts will not be exposed to accidental contact under normal operating conditions."

Bethlehem resisted the citation, arguing that this section applied to the crane operator and his assistant, but not to maintenance personnel. In finding against Bethlehem, the ALJ held that the standard also applied to maintenance personnel and stated that a different interpretation would be contrary to the broad objectives of the Act.

The standard under discussion is derived from the safety code for overhead and gantry cranes prepared by the American National Standards Institute (ANSI) and was adopted by the Secretary of Labor pursuant to authorization contained in 29 U.S.C. § 655(a). ¹

No elaboration or explanation of the standard accompanied the original promulgation by ANSI, but in February, 1975, its committee on crane safety did issue an interpretation. The committee consisted of representatives of labor, management, OSHA, manufacturers, and the Armed Forces. The unanimous view was that the standard did not apply to maintenance personnel. ²

The ALJ considered the committee report but did not accept it as controlling. We agree that for a number of reasons the report was not binding on OSHA, although the views of experts in the field who are members of the organization which prepared the standards are entitled to consideration. Moreover, despite differing interpretations by several ALJs and the Review Commission, ³ this standard has not been amended or clarified by the Secretary through the exercise of his rulemaking procedures. He does, however, contend that maintenance personnel are among those protected by the standard and presses that position in this appeal.

The courts have differed in determining the scope of review applicable to appeals from the Occupational Safety and Health Review Commission, ⁴ and we have said that the Secretary and the Commission should have relatively broad discretion in interpreting the Act and regulations. Budd Co. v. OSHRC, 513 F.2d 201, 205 (3d Cir. 1975). In Budd, the Commission and the Secretary agreed on the meaning of a challenged safety standard, and we upheld their interpretation. Here, however, we are confronted with different circumstances.

The case before us is one of at least three recent OSHA proceedings involving the application of § 1910.179(g)(2)(i) to resistor banks controlling overhead cranes in steel mills. See also Secretary v. United States Steel Corp., OSAHRC Docket No. 10825, 5 OSHC 1289 (April 25, 1977); and Secretary v. Wheeling-Pittsburgh Steel Corp., OSAHRC Docket Nos. 10611, 11327, 14366, 13320, 5 OSHC 1495 (May 12, 1977). ⁵ The Review Commission was unable to articulate a majority view in the present case because one of the three commissioners recused and the other two were not in accord. The same question was presented several months later in United States Steel, supra. Although all three commissioners were unable to agree upon the meaning of § 1910.179(g)(2)(i), the majority held "normal operating conditions" did not include maintenance work on the crane itself. This interpretation is contrary to that reached in the case sub judice, as well as that urged by the Secretary and is somewhat more narrow than the view of ANSI, the organization that developed the rule.

The standard was not one adopted by the Secretary after notice, hearing and evaluation of evidence but was conceived by a nongovernmental agency as a product of its own investigation and research. Consequently, the Secretary's views are not as persuasive as they would have been if based upon his department's own review of the problem and deliberate choice of a satisfactory solution. In considering the weight to be given an administrative ruling, the Supreme Court said, "(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, --- U.S. ----, ---- n.5, 98 S.Ct. 566, 574 n.5, 54 L.Ed.2d 538 (1978); General Electric Co. v. Gilbert, 429 U.S. 125, 141-42, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976).

Unlike Budd, we do not have an authoritative agency interpretation to assist us since the decisions of the Commission are themselves in conflict and inconsistent with the Secretary's position. We rely, therefore, on the plain wording of the standard and conclude it does exclude maintenance personnel.

The standard states that "live parts will not be exposed to accidental contact under normal operating conditions" and does not mention maintenance operations. When a repairman is undertaking maintenance operations, the crane is not being used for its intended purpose of lifting and moving heavy objects. ⁶ Maintenance procedures often involve disconnecting various safety features which are in effect during "normal" operation and in many instances protective devices themselves must be repaired or given periodic maintenance. It is clear to us that the phrase "normal operating...