Donovan v. Anheuser-Busch, Inc., ANHEUSER-BUSC

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore LAY, Chief Circuit Judge, ARNOLD; WILLIAM H. BECKER
Parties10 O.S.H. Cas.(BNA) 1193, 1981 O.S.H.D. (CCH) P 25,803 Raymond J. DONOVAN (Successor to Ray Marshall) Secretary of Labor, Petitioner, v., and Occupational Safety and Health Review Commission, Respondents.
Docket NumberINC,No. 80-1743,ANHEUSER-BUSC
Decision Date20 January 1982

Page 315

666 F.2d 315
10 O.S.H. Cas.(BNA) 1193, 1981 O.S.H.D. (CCH)
P 25,803
Raymond J. DONOVAN (Successor to Ray Marshall) Secretary of
Labor, Petitioner,
v.
ANHEUSER-BUSCH, INC., and Occupational Safety and Health
Review Commission, Respondents.
No. 80-1743.
United States Court of Appeals,
Eighth Circuit.
Submitted May 19, 1981.
Decided Dec. 3, 1981.
Rehearing Denied Jan. 20, 1982.

Page 317

A. Graham Allen, argued, Freeman, Richardson, Watson, Kelly & Livermore, P. A., Jacksonville, Fla., for respondent Anheuser-Busch, Inc.

Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol., for Occupational Safety and Health, Allen H. Feldman, Counsel for Appellate Litigation, Charles I. Hadden, Asst. Counsel for Appellate Litigation, Emilie N. Junge, Atty., argued, U. S. Dept. of Labor, Washington, D. C., Bobbye D. Spears, Regional Sol., Atlanta, Ga., Tedrick A. Housh, Jr., Regional Sol., Kansas City, Mo., for Occupational Safety and Health Review Commission.

Before LAY, Chief Circuit Judge, ARNOLD, Circuit Judge, and BECKER, * Senior District Judge.

WILLIAM H. BECKER, Senior District Judge.

This is a petition by the Secretary of Labor (Secretary) for review of an order of an Administrative Law Judge (ALJ), which became a final order of the Occupational Safety and Health Review Commission (Commission) when the Commission denied discretionary review thereof. (Notice of Final Order dated June 24, 1980). The final order vacated a citation by the Secretary which charged Anheuser-Busch, Inc. (Busch) with a violation of the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. §§ 651 et seq., in failing to provide guardrails or equivalent protection on the top surfaces of its "canline" beer pasteurizers in its Jacksonville, Florida brewery, in violation of 29 C.F.R. § 1910.23(c)(1), set forth hereinafter.

THE FACTS

Busch owns and operates a brewery in Jacksonville, Florida. (Transcript, (Tr.), 160, 169). The equipment in this brewery includes three "bottle-line" pasteurizers and four "can-line" pasteurizers. (Tr. 9, 20-21). Only the failure to provide guardrails or equivalent protection on the "can-line" pasteurizers is the subject of this petition for review. (Tr. 9, 10, 20-21, 27).

Each "can-line" pasteurizer is approximately six feet in height, 25 to 30 feet in width and about 100 feet in length. (Tr. 25, 39, 148). Cans of beer pass through the pasteurizer where they are sprayed with hot water. (Tr. 20). Aluminum "logs"

Page 318

(hollow oblong separators) eight to ten feet in length, three inches in width, three inches in height and six to eight pounds in weight are used to separate different lots of cans of beer. (Tr. 60-61, 68, 102).

The top surface of each pasteurizer consists of nine longitudinal rows of stainless steel lids with 18 to 19 lids in each row. (Tr. 29, 92, 148, 172, Exhibit 5). Each lid is two feet in width and five feet in length (Tr. 29, 130, 148, 172), and is equipped with two inverted "L" shaped upright lifting handles used to raise the lid to gain access to the inside and the water "sprayheaders" of the pasteurizer. (Tr. 29, 148). When in place and undamaged, the surface of the lids is flat except for the upright handles. (Tr. 29, Exhibit 4).

Busch employees gain access to the top surface of a pasteurizer by climbing a fixed ladder or a stairway with guardrails. (Tr. 39, 90, 129). The top surface of the pasteurizer does not have any guardrails or similar protection along any part of its outer edges. (Exhibits 1, 2, 3 and 4).

The duties performed by Busch employees on the top surface of each pasteurizer are inspection by laboratory personnel of the "sprayheaders" under each lid every two weeks (Tr. 34, 48, 89, 96, 113-114), periodic repair by maintenance personnel of the "sprayheaders" under the lids when necessary (Tr. 27, 73, 126), placement by production employees of aluminum logs between the lots of cans of beer and removal thereof from the discharge end of the pasteurizer to the opposite end every shift (Tr. 59-61, 101, 124), intermittent inspection by production employees of the progress of the aluminum bars two to four times a shift as they pass through the pasteurizer (Tr. 62) and weekly, and more often in the summer, cleaning, washing and scrubbing of the pasteurizer by production employees while walking on the top surface of the pasteurizer. (Tr. 58-59, 105, 122).

After an inspection of the Jacksonville brewery in May of 1979 by a Compliance Safety and Health Officer (Compliance Officer), of the Occupational Safety and Health Administration (OSHA), Department of Labor, the Secretary issued a citation on August 15, 1979 charging Busch with a violation of the Act, 29 U.S.C. § 654(a)(2), and implementing standard, 29 C.F.R. § 1910.23(c)(1), for failure to provide guardrailings on the top surfaces of the pastuerizers. (Tr. 140, 143, 150-152). The citation states:

The violations described in this citation are alleged to have occurred on or about the day the inspection was made unless otherwise indicated within the description given below.

29 CFR 1910.23(c)(1): Open sided floor(s) or platform(s) 4 feet or more above the adjacent floor or ground level were not guarded by standard railings (or the equivalent as specified in 29 CFR 1910.23(e)(3)), on all open sides:

Top of pasteurizers; units 10, 20, 30, 40, 50, 60, 70 in the production area on to which employer (sic) must enter for inspection purposes on a routine predictable and scheduled basis with approximately daily exposure of employees.

By letter dated September 5, 1979, Busch contested the citation with respect to the four "can-line" pasteurizers, units 10, 20, 50 and 70, and agreed to abate the violations described in the citation with respect to the three "bottle-line" pasteurizers, units 30, 40 and 60. Thereafter, the Secretary filed a complaint before the Commission to affirm the citation as it applies to the "can-line" pasteurizers. By answer Busch denied the violations charged in respect to the "can-line" pasteurizers.

A hearing was held on January 31, 1980 before an ALJ appointed by the Commission. (OSHRC Docket No. 79-5002).

The findings of fact of the ALJ are fully accepted as far as they extend and are considered with other uncontroverted material facts of record.

THE APPLICABLE STANDARDS

The applicable standard, 29 C.F.R. § 1910.23(c)(1), alleged in the contested part of the citation is as follows:

Page 319

(c) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides, (i) Persons can pass, (ii) There is moving machinery, or (iii) There is equipment with which falling materials could create a hazard.

The term "platform" is defined in 29 C.F.R. § 1910.21(a)(4) as follows:

A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment. (The phrase "open-sided floor" is not further defined.)

THE DECISION OF THE ALJ

The ALJ in his "Decision and Order", dated May 22, 1980, vacated the citation as it applies to the tops of the "can-line" pasteurizers. The findings and reasoning of the ALJ are as follows:

Statement Of The Case

This case involves the intermittent presence of laboratory technicians, maintenance, and production personnel on top of pasteurizers about six feet above the floor in the performance of certain duties assigned to them during the production of canned beer.

Inspections of respondent's Jacksonville, Florida, brewery on May 1, 1979 through May 7, 1979, by complainant pursuant to the Occupational Safety and Health Act of 1970, resulted in a citation for a § 5(a)(2) of the Act non-serious violation. Respondent contested a portion of that citation.

After a complaint and an answer were filed, the case was heard in Jacksonville, Florida, on January 31, 1980.

The Charge

That top of pasteurizers, units 10, 20, 50, and 70, were open-sided floors or platforms four feet or more above adjacent floor, upon which employees entered for inspection purposes on a routine predictable and scheduled basis with approximate daily exposure to those open sides (29 C.F.R. 1910.23(c)(1)).

The Standard

Provides that every open-sided floor or platform four feet or more above adjacent floor or ground level shall be guarded by a standard railing (or its equivalent).

Jurisdiction

Respondent by its answer to the complaint conceded it is engaged in a business affecting commerce.

Issues

Whether the tops of the pasteurizers in issue are platforms within the meaning of complainant's definition of a platform (29 C.F.R. 1910.21(a)(4))?

If the tops should be construed as platforms, whether the exposure is de minimis?

Reserved Ruling On Motion

Respondent objected to receiving evidence on any work related matters not directly connected with the inspection of spray headers as alleged in the citation. Ruling on that objection was reserved to this point in time. Respondent was not taken by surprise and was well aware of the expanded situation. Accordingly, the evidence objected to is allowed to stand of record in this case.

Findings Of Fact

The material facts are not disputed. Each can-line pasteurizer is approximately six feet in height, 100 feet in length, and 25 to 30 feet in width. The top is essentially flat and consists of stainless steel lids (plates). Each is five feet in length and two feet in width. They are laid out in nine parallel rows, each row containing 18 plates. Each plate is equipped with an L shaped lifting handle. Fixed ladders with guardrails are provided for ascent and descent to and from the top of each pasteurizer.

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22 practice notes
  • Ileto v. Glock, Inc., No. CV 01-9762ABC(RNBX).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 14, 2006
    ...the intent of Congress is unclear. Id.; Microsoft Corp. v. C.I.R., 311 F.3d 1178, 1186 (9th Cir.2002); Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 326 (8th Cir.1982). Thus, it has no bearing on the Court's analysis at this stage because, here, the Court determines only whether the plain ......
  • Schultz v. NORTHEAST ILL. REGIONAL COMMUTER RAILROAD CORP., No. 90770
    • United States
    • Supreme Court of Illinois
    • June 6, 2002
    ...of the oven did not fall within the definition of "platform." General Electric Co., 583 F.2d at 65. In Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 317 (8th Cir.1981), the Secretary of Labor cited the defendant for a violation of standard 1910.23(c)(1) for failing to provide guardrails on......
  • Shaddox v. Bertani, No. A097480.
    • United States
    • California Court of Appeals
    • July 30, 2003
    ...includable other matters of the same kind which are not specifically enumerated." (E.g., Donovan v. Anheuser-Busch, Inc. (8th Cir.1981) 666 F.2d 315, 327.) The phrase is used in an illustrative, not an exhaustive sense. (Abbott v. Bragdon (D.Me.1995) 912 F.Supp. 580, 586; Abenante v. Fulfle......
  • Continental Airlines, Inc., In re, No. 91-3204
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 30, 1991
    ...v. United States, 261 U.S. 514, 519, 43 S.Ct. 428, 430, 67 L.Ed. 778 (1923) (citations omitted); see also Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 327 (8th Cir.1981). As we have noted, a court is never barred from enlisting the aid of this or any other extrinsic tool, but noscitur a s......
  • Request a trial to view additional results
22 cases
  • Ileto v. Glock, Inc., No. CV 01-9762ABC(RNBX).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 14, 2006
    ...the intent of Congress is unclear. Id.; Microsoft Corp. v. C.I.R., 311 F.3d 1178, 1186 (9th Cir.2002); Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 326 (8th Cir.1982). Thus, it has no bearing on the Court's analysis at this stage because, here, the Court determines only whether the plain ......
  • Schultz v. NORTHEAST ILL. REGIONAL COMMUTER RAILROAD CORP., No. 90770
    • United States
    • Supreme Court of Illinois
    • June 6, 2002
    ...of the oven did not fall within the definition of "platform." General Electric Co., 583 F.2d at 65. In Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 317 (8th Cir.1981), the Secretary of Labor cited the defendant for a violation of standard 1910.23(c)(1) for failing to provide guardrails on......
  • Shaddox v. Bertani, No. A097480.
    • United States
    • California Court of Appeals
    • July 30, 2003
    ...includable other matters of the same kind which are not specifically enumerated." (E.g., Donovan v. Anheuser-Busch, Inc. (8th Cir.1981) 666 F.2d 315, 327.) The phrase is used in an illustrative, not an exhaustive sense. (Abbott v. Bragdon (D.Me.1995) 912 F.Supp. 580, 586; Abenante v. Fulfle......
  • Continental Airlines, Inc., In re, No. 91-3204
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 30, 1991
    ...v. United States, 261 U.S. 514, 519, 43 S.Ct. 428, 430, 67 L.Ed. 778 (1923) (citations omitted); see also Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 327 (8th Cir.1981). As we have noted, a court is never barred from enlisting the aid of this or any other extrinsic tool, but noscitur a s......
  • Request a trial to view additional results

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