Brennan v. OCCUPATIONAL SAFETY & HEALTH REVIEW COM'N

Decision Date11 February 1974
Docket NumberDocket 73-1428.,No. 280,280
Citation491 F.2d 1340
PartiesPeter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Gerosa, Incorporated, Respondents.
CourtU.S. Court of Appeals — Second Circuit

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 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 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 regarded it as an important piece of remedial legislation, designed to reduce "work-related injuries and illnesses," which cause "ever-increasing human misery and economic loss." S.Rep.No.91-1282, 91st Cong., 2d Sess. (1970), quoted at 1970 U.S.Code Cong. & Admin.News, p. 5177. Each year prior to the passage of the Act, 14,000 workers died and 2.2 million were disabled by accidents in the workplace.8 Congress hoped to achieve its objective of preventing accidents by encouraging employers "to institute new and to perfect existing programs for providing safe and healthful working conditions." 29 U.S.C. § 651(b) (1). The Act contains a section imposing upon employers a general duty to provide a safe work environment. 29 U.S.C. § 654(a) (1). However, Congress apparently placed primary reliance upon promulgation by the Secretary of specific regulations, such as the one in this case, which the statute commends employers to obey. 29 U.S.C. § 654(a) (2); S.Rep.No.91-1282, supra, 1970 U.S.Code Cong. & Admin. News at pp. 5185-5186.9 Thus, it is especially important that these regulations be construed to effectuate congressional objectives. Cf. A. H. Phillips Co. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 89 L.Ed. 1095 (1945); Reliable Coal Corp. v. Morton, 478 F.2d 257, 262 (4th Cir. 1973). While the Regulation before us is limited to cranes and derricks, and the proposed penalty is small, the potential impact of the Commission's decision is large indeed. There have been many regulations issued under the Act similar to the one involved here.10

The Company claims that the only question before us is whether the Commission's order, under 29 U.S.C. § 660(a), (b), is "supported by substantial evidence on the record considered as a whole. . . ." The Secretary maintains, however, that the issues here are essentially legal, involving interpretation of the designation and inspection requirements of the Regulation. At least as to the former, the Secretary is undoubtedly correct. We will assume that our role, then, is to decide whether the Commission's interpretation of the Regulation is unreasonable and inconsistent with its purpose, the normal standard for review of the interpretation of a regulation by the agency charged with its administration. E. g., Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Bowles v. Seminole Rock Co., 325 U.S. 410, 413-414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945); Jno. McCall Coal Co. v. United States, 374 F.2d 689 (4th Cir. 1967). This assumption may be unduly deferential to the Commission, since the Act entrusts only adjudicatory functions to the Commission while assigning rulemaking power and initiation of enforcement proceedings to the Secretary.11 Indeed, the rule of the cited decisions appears to apply with full force only to a long-standing agency interpretation, see, e. g., Wilderness Soc'y v. Morton, 156 U.S.App.D.C. 121, 479 F.2d 842, 864-865, cert. denied, 411 U.S. 917, 93 S.Ct. 1550, 36 L.Ed.2d 309 (1973), certainly not the case here, when the Act had been effective for less than two years at the time the Commission ruled. In any event, we need not pursue these thoughts further because we believe that the Commission's interpretation cannot stand even if its views are given the deference called for under the authorities cited above.12

The issue before us is the meaning of "designate" in the...

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