Brock v. Cardinal Industries, Inc.

Decision Date04 September 1987
Docket NumberNo. 2077,No. 86-3094,AFL-CI,I,U,2077,86-3094
Citation828 F.2d 373
Parties, 13 O.S.H. Cas.(BNA) 1377, 1987 O.S.H.D. (CCH) P 28,033 William E. BROCK, Secretary of Labor, Petitioner, v. CARDINAL INDUSTRIES, INC., and Occupational Safety and Health Review Commission, Respondents. Local Unionnited Brotherhood of Carpenters and Joiners of America,ntervenor.
CourtU.S. Court of Appeals — Sixth Circuit

George R. Salem, Deputy Sol. of Labor, Frank A. White, Associate Sol., for OSH.

Joseph M. Woodward, for Appellate Litigation.

Morris R. Parker, Jr. (argued), Washington, D.C., Atty. for U.S. Dept. of Labor.

K. Krieger, for intervenor Local Union No. 2077.

Robert D. Weisman (argued), Schottenstein, Zox & Dunn, P.A., Columbus, Ohio, Ray H. Darling, Jr., Executive Secretary, OSHRC, Washington, D.C., for respondent.

Before KEITH and KENNEDY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

The Secretary of Labor ("Secretary") petitions this court to review a decision of the Occupational Safety and Health Review Commission ("Review Commission" or "Commission") vacating the Secretary's citations that were brought against Cardinal Industries, Inc. ("Cardinal") for violations of the Occupational Safety and Health Act of 1970 ("OSH Act" or "Act"), 29 U.S.C. Secs. 651-678 (1982). The Secretary asserts on appeal, and we agree, that the Review Commission erred in concluding that Cardinal was engaged in "construction work" as that term is used in 29 C.F.R. Sec. 1910.12 (1986). 1 Accordingly, we reverse the Commission's decision and remand so that the Commission may consider Cardinal's alternative objections to the ALJ's decision.

Cardinal produces modular housing units at its factory in Columbus, Ohio. The housing units are mass-produced on an assembly line that is comprised of twenty five work stations. The operation begins with the placing of the floor, and the units are then mechanically propelled through the remaining work stations, where the walls, ceiling, roof, gypsum, roofing felt, shingles, and other necessary items are added. The completed units come off of the assembly line as essentially finished houses, needing only to be transported to their destinations, affixed to prepared foundations, and hooked up to the utilities. It is undisputed, however, that Cardinal's employees do not transport or install the finished units.

In March, 1982, the Occupational Safety and Health Administration ("OSHA") conducted an inspection of Cardinal's factory in response to an employee complaint and the report of a fatal accident. The OSHA compliance officer observed Cardinal employees working on three elevated platforms without guardrail protection. In addition, the officer witnessed workers on modular unit roofs, which are eight to twelve feet high, again without any safety devices to protect them from falling. 2 Based on these observations, the Secretary cited Cardinal for three separate violations of the OSHA general industry guardrail regulation, see 29 C.F.R. Sec. 1910.23(c)(1) (1986), and one violation of the general industry personal protective equipment standard, see 29 C.F.R. Sec. 1910.132(a) (1986), for not requiring employees working atop the unit roofs to wear safety belts and lanyards.

Cardinal contested the citations and the case eventually came before a Review Commission administrative law judge ("ALJ"). Cardinal contended that the Secretary cited it under the wrong standards, arguing that its operation constituted "construction work" under 29 C.F.R. Sec. 1910.12, and was thus controlled by the construction industry standards in 29 C.F.R. Part 1926. See 29 C.F.R. Sec. 1910.12(a) (1986). The ALJ concluded, however, "that the nature of Cardinal's operation is more akin to manufacturing than construction," and that the Secretary was therefore correct in citing Cardinal under the general industry standards of Part 1910. The ALJ then affirmed three of the four citations and assessed penalties.

On appeal, a majority of the three-member Review Commission held that in applying section 1910.12, "it is the nature of the work rather than its location that controls." Based on its factual findings that the tasks performed by Cardinal employees were characteristic of construction work and that Cardinal's "primary function" was construction, the Commission majority held that the nature of Cardinal's work was "construction," and not manufacturing, for purposes of section 1910.12. Consequently, the majority found that the Secretary's citations were preempted by specifically applicable construction industry standards in Part 1926, 3 and vacated the citations. In dissent, Commissioner Rader, insisted that the term "construction work necessarily implies some direct and tangible connection or relationship with the physical site or location of the structure." Because all of Cardinal's operations occur off-site, Commissioner Rader would have affirmed the ALJ's conclusion that Cardinal was not engaged in "construction work" under section 1910.12. The Secretary's timely petition to review the Commission's order ensued. See 29 U.S.C. Sec. 660(b) (1982).

The Secretary contends on appeal that the Review Commission erred in its legal conclusion that, in applying section 1910.12, "it is the nature of the work rather than its location that controls." According to the Secretary, for an employer to be engaged in "construction work" under section 1910.12, the employer's operation must have some connection to the construction site. The issue for our review, therefore, is whether the Commission correctly interpreted the regulation. If the Commission's interpretation is erroneous, its application of the incorrect standard to the facts of this case must be reversed as "arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law." 4 5 U.S.C. Sec. 706(2)(A) (1982); see Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1382-83 (D.C.Cir.1985); Donovan v. A. Amorello & Sons, Inc., 761 F.2d 61, 62-66 (1st Cir.1985); Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 131-34 (6th Cir.1978). See also Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974) (agency action is "arbitrary and capricious" if not based on consideration of the relevant factors). For the reasons that follow, we agree with the Secretary that the Commission erred in interpreting the regulation.

The Occupational Safety and Health Act of 1970, 29 U.S.C. Secs. 651-678 (1982), was enacted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. Sec. 651(b) (1982); see Whirlpool Corp. v. Marshall, 445 U.S. 1, 11-13, 100 S.Ct. 883, 890-91, 63 L.Ed.2d 154 (1980). The Act authorizes the Secretary of Labor to establish occupational safety and health standards, see 29 U.S.C. Sec. 655 (1982); 29 C.F.R. Sec. 1910.1 (1986), which are binding upon employers engaged in businesses affecting commerce, see 29 U.S.C. Secs. 652(5), 654(a)(2) (1982). The Secretary has accordingly promulgated the Occupational Safety and Health Standards, otherwise known as the general industry standards. See 29 C.F.R. Part 1910. The Secretary has also adopted several industry-specific "established Federal standards," see 29 C.F.R. Secs. 1910.12-.16, which were previously established by federal statute or regulation, 29 U.S.C. Sec. 652(10), including the construction industry standards of 29 C.F.R. Part 1926, 5 see 29 C.F.R. Sec. 1910.12. Under this regulatory scheme, the general industry standards apply to a given working condition unless preempted by corresponding industry-specific standards. See B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1369 n. 9 (5th Cir.1978); 29 C.F.R. Sec. 1910.5(c) (1986); see also Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1380-81 (D.C.Cir.1985). Thus, in the instant case, the general industry standards regulate Cardinal's operation unless Cardinal is engaged in "construction work" as that term is used in section 1910.12, in which case the specifically applicable construction industry standards of Part 1926 would control. We therefore turn to the meaning of the term "construction work."

Whether the term "construction work" in 29 C.F.R. Sec. 1910.12 requires that the work be connected with the construction site is a question of first impression for the courts, as it was for the Review Commission. 6 Our analysis therefore begins with the language of section 1910.12, which provides in relevant part:

Sec. 1910.12 CONSTRUCTION WORK

(a) Standards. The Standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work....

(b) Definition. For purposes of this section, "construction work" means work for construction, alteration, and/or repair, including painting and decorating. See discussion of these terms in Sec. 1926.13 of this title.

29 C.F.R. Sec. 1910.12 (1986) (emphasis added). As this regulation states, an employer must comply with the safety and health regulations in Part 1926 if its employees are "engaged in construction work." To determine if such work, defined as "work for construction, alteration, and/or repair, including painting and decorating," is being performed, one must consult section 1926.13 for a "discussion of these terms." 29 C.F.R. Sec. 1910.12(b) (1986). Section 1926.13 states:

The terms "construction," "alteration," and "repair" used in section 107 of the [Construction Safety] Act are also used in section 1 of the Davis-Bacon Act (40 U.S.C. 276a), providing minimum wage protection on Federal construction contracts, and section 1 of the Miller Act (40 U.S.C. 270a), providing performance and payment bond protection...

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