Brennan v. OCCUPATIONAL SAFETY & HEALTH REVIEW COM'N, No. 280

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: KAUFMAN, , and SMITH and FEINBERG, Circuit
• Citation: 491 F.2d 1340
• Parties: Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Gerosa, Incorporated, Respondents.
• Docket Number: Docket 73-1428.,No. 280
• Decision Date: 11 February 1974

491 F.2d 1340 (1974)

Peter J. BRENNAN, Secretary of Labor, Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Gerosa, Incorporated, Respondents.

No. 280, Docket 73-1428.

United States Court of Appeals, Second Circuit.

Submitted January 10, 1974.

Decided February 11, 1974.

491 F.2d 1341

Irving Jaffe, Acting Asst. Atty. Gen., Walter H. Fleischer, Robert M. Feinson, Stephen F. Eilperin, Michael H. Stein, Attys., Dept. of Justice; William J. Kilberg, Solicitor of Labor; Benjamin W. Mintz, Associate Solicitor for Occupational Safety and Health; Michael H. Levin, Counsel for Appellate Litigation; Douglas R. Earle, Washington, D. C. for petitioner.

Cunningham & Kaming, P. C., New York City, for respondent Gerosa, Incorporated.

Before KAUFMAN, Chief Judge, and SMITH and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

The Secretary of Labor petitions for review of an order of the Occupational Safety and Health Review Commission, which held that respondent Gerosa, Incorporated (the Company) did not violate a safety regulation promulgated by the Secretary under the Occupational Safety and Health Act of 1970 (the Act). 29 U.S.C. §§ 651 et seq. As we have recently noted,¹ the Act is but one of many recent statutes that call upon the federal courts to deal with new and difficult problems. This is apparently the first enforcement proceeding we have had under the Act.² Specifically, the Secretary complains that the Company violated 29 C.F.R. § 1926.550(a)(5) (the Regulation)³ by failing to designate a competent person "to make sure" that a crane under its control was "in safe operating condition" before and

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during use. Because we believe that the Commission misinterpreted the Regulation's designation requirement, we grant the petition for review and vacate the Commission's order

I

The undisputed facts are as follows: In October 1971, a worker was killed because a crane, rented by the Company and staffed by its employees, an operator and an oiler, went out of control.⁴ The crane was being used to raise steel columns into place during the construction of a power plant. The day before the accident, the crane was assembled at the worksite, and the operator conducted a "test run" of the crane, raising the boom and letting it down again. At this point, the boom fell to the ground. A crane mechanic was promptly called to the scene but, before he could arrive, the oiler and the operator made adjustments which seemed to restore the crane to normal working order. These adjustments satisfied the mechanic, and the crane lifted one column into place before high winds curtailed its operations for the day. The next morning, the oiler, following normal procedure, ran the crane through a test run without incident, raising, lowering, and swinging the boom. However, while lifting the first steel column of the day, the boom went out of control, struck a concrete pole and fell free, fatally injuring the worker.

The crane was inspected the day after the accident by a police detective, expert crane mechanics from the manufacturer and the crane servicing company, and two Department of Labor compliance officers. The inspection revealed that the boom brake bands were coated with a greasy substance and that the backup system to the boom brakes was inoperative because of a missing clevis pin. On the basis of this inspection, the Secretary cited the Company for a violation of the Regulation, which deals with cranes and derricks, and provides as follows:

The employer shall designate a competent person who shall inspect all machinery and equipment prior to each use, and during use, to make sure it is in safe operating condition. Any deficiencies shall be repaired, or defective parts replaced, before continued use.

The Secretary claimed that the Company had not followed adequate safety inspection procedures and that it had failed to designate a competent person to inspect the crane for safety before and during each use. A penalty of $400 was assessed, and the Company elected to contest the citation and assessment.

A hearing was held before a Commission judge (the Hearing Judge), at which the operator and those who had inspected the crane testified; only the crane service representative testified for the Company. After reviewing the testimony, the Hearing Judge affirmed the citation and proposed penalty, noting that the evidence against the Company "is so clear and compelling as to require but little discussion." Relying on the operator's testimony that neither he nor the oiler was detailed to conduct any safety inspection of the crane, the judge concluded that the Company had violated the designation requirement of the Regulation. Characterizing a crane as "at best an inherently dangerous instrumentality," he interpreted that requirement to demand "specific and positive action" by an employer to inform its employees of their inspection duties. Further, the Hearing Judge implicitly held that the inspection procedures themselves were inadequate under the Regulation for omitting visual and physical inspection of the boom lift mechanism; in his view, the greasy brake bands and inoperative backup system were readily detectable defects, which exposed the Company's

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employees to considerable danger and caused a loss of life

The Company obtained discretionary review, under 29 U.S.C. § 666(i), by the three-man Commission, which set aside the Hearing Judge's decision and vacated the Secretary's citation. The Commission held that under industry practice the assignment of a competent oiler and operator to a crane was, "albeit not specifically stated," a designation in compliance with the Regulation. In addition, the Commission ruled that the Regulation requires only a reasonable inspection and that this requirement was satisfied by the test run procedure. According to the Commission, the defects found by the Hearing Judge were not discoverable by reasonable inspection. Following the Commission's decision, the Secretary brought this petition for review, under 29 U.S.C. § 660(b).

II

Before turning to the merits, we think it useful briefly to discuss the Act itself, which has been called "the most revolutionary piece of `labor' legislation since the National Labor Relations Act."⁵ Whether that assessment be hyperbolic or not, there can be no doubt of the significance of a statute which affects an estimated 4.1 million business establishments with 57 million employees.⁶ Several features of the statute are of immediate significance. The dramatic legislative history of the Act⁷ demonstrates that Congress...