International Union, United Auto., Aerospace and Agr. Implement Workers of America v. General Dynamics Land Systems Div.

• Decision Date: 14 April 1987
• Docket Number: 85-1826,Nos. 85-1760,s. 85-1760
• Citation: 815 F.2d 1570
• Parties: , 55 USLW 2577, 13 O.S.H. Cas.(BNA) 1201, 1986-1987 O.S.H.D. ( 27,873 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, et al., Petitioners, v. GENERAL DYNAMICS LAND SYSTEMS DIVISION, Respondent. William E. BROCK, Secretary of Labor, Petitioner, v. GENERAL DYNAMICS LAND SYSTEMS DIVISION, et al., Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1570

815 F.2d 1570

259 U.S.App.D.C. 369, 55 USLW 2577,

13 O.S.H. Cas.(BNA) 1201,

1986-1987 O.S.H.D. ( 27,873

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, et al., Petitioners, v. GENERAL DYNAMICS LAND SYSTEMS DIVISION, Respondent.

William E. BROCK, Secretary of Labor, Petitioner, v. GENERAL DYNAMICS LAND SYSTEMS DIVISION, et al., Respondents.

Nos. 85-1760, 85-1826.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 17, 1986.

Decided April 14, 1987.

Petitions for Review of an Order of the Occupational Safety and Health Review Commission.

Andrea C. Casson, Asst. Counsel, Dept. of Labor, with whom Joseph M. Woodward, Counsel, Dept. of Labor, Washington, D.C., was on brief, for petitioner Brock in No. 85-1826.

Jordan Rossen, Ralph O. Jones, and Beverly Tucker, Detroit, Mich., were on brief, for petitioners Intern. Union, et al., in No. 85-1760.

John P. Hancock, Jr., Detroit, Mich., for respondents General Dynamics Land Systems Div. Inc., et al.

Before STARR and BUCKLEY, Circuit Judges, and AUBREY E. ROBINSON, Jr., ^* Chief Judge, United States District Court for the District of Columbia.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

The Occupational Safety and Health Administration ("OSHA") cited General Dynamics Land Systems Division ("General Dynamics" or the "Company") for workplace violations of a statute and of administrative safety standards. An administrative law judge ("ALJ") found that as General Dynamics conformed with the safety standards, it could not be found to have violated the statutory requirement. The Occupational Safety and Health Review Commission (the "Commission") adopted the ALJ's decision as its own. Petitioners urge us to vacate the order insofar as it holds that a specific OSHA safety standard preempts enforcement of a general statutory duty to assure workplace safety. We vacate the challenged portion of the order and hold that, in the circumstances of this case, an employer's compliance with OSHA's standards will not discharge his statutory obligation to provide employees with safeguards against recognized hazards.

I. BACKGROUND

General Dynamics manufactures M-1 Abrams tanks in a Department of Defense facility called the Detroit Arsenal Tank Plant ("Plant"). Abrams tanks have internal hydraulic systems that sometimes leak during assembly. For several months prior to November 1983, General Dynamics employees had used a solvent called 1,1,2 trichloro 1,2,2 trifluoroethane ("solvent" or "freon") to clean up resulting oil spills. The solvent evaporates quickly. While it is less toxic than other commercial solvents, in its gaseous state it is heavier than air and may cause serious illness or death. It tends to accumulate in assembly-line pits and tank hulls, displacing oxygen and creating a risk of asphyxiation. In high concentrations it may also cause cardiac arrythmia and eventual arrest. See Brief for Petitioners International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and its Local 1200 ("UAW") at 4; Brief for Petitioner Secretary of Labor ("Secretary") at 10-11.

According to the UAW, General Dynamics stored the solvent at the Plant in fifty-five-gallon drums "with no limit on the amount that could be obtained until November 15, 1983 when its use was discontinued throughout the plant." Brief for UAW at 4. During the period it was in use, the solvent was available in several areas of the Plant. Id. Employees in the Tank-Hull Assembly Department, for example, used the solvent in cup-sized quantities to clean spills of up to half a pint of oil. Id. at 5. To clean larger spills of up to ten or fifteen gallons of hydraulic fluid, however, "employees would use [gallon-sized] buckets or 2 1/2 gallon spray containers to apply solvent to the affected area." Id. This procedure would consist of "dumping gallons of the solvent into the hull where it would evaporate or exit through a drain on the floor." Id. Sometimes employees would enter a hull still containing liquid solvent and oil to vacuum them out. Employees would also use the solvent in large quantities in the Plant's Heavy Repair Department. Id. at 9.

General Dynamics does not reject petitioners' description of cleaning procedures at the Plant. See Brief for General Dynamics at 2-29 (statement of facts). Rather, it explains that "[t]he manner in which 'tank repairmen' ... performed the various repairs was essentially a matter of the team's discretion because all tank repairmen were highly skilled...." Id. at 17. Such discretion was subject, however, to the requirement that tank hulls be ventilated when employees used solvent in quantities larger than one pint. Id. Its safety officers conducted training sessions with employees to "describe[ ] the potential hazards associated with use of the solvent, and stated that employees should try to restrict the quantities used and also use ventilation whenever more than 1 pint was used inside a fully assembled tank." Id. at 12.

The incidents leading to this litigation began shortly after the Company commenced production of the M-1 tank in March 1982. Brief for Secretary at 7. A Plant employee was overcome by fumes in August 1982 after entering an assembly-line pit containing freon vapors. Id. at 11. After an inspection, OSHA issued a citation authorized by section 9 of the Occupational Safety and Health Act of 1970 (the "Act"), 29 U.S.C. Sec. 658 (1982). The citation charged General Dynamics with violations of section 5(a) of the Act, 29 U.S.C. Sec. 654(a) (1982), which provides:

Each employer--

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this chapter.

Specifically, General Dynamics was charged with a violation of its statutory duty to provide safe working conditions under subsection 5(a)(1) ("general duty clause") and to observe safety standards issued pursuant to subsection 5(a)(2) ("safety standards" or "specific standards"). General Dynamics reached a settlement with OSHA in June 1983 in which the Company affirmed that it had implemented amended confined-space procedures and agreed that "in the future [it] will in good faith continue to comply[ ] with the provisions of the Act, and applicable standards promulgated pursuant thereto." Joint Appendix ("J.A.") at 964 (emphasis added).

In March 1983, another Plant employee became dizzy and weak after driving a fully assembled tank. Brief for Secretary at 12. As a result of this incident, General Dynamics posted a safety bulletin at the Plant that read in part:

[Trichloro trifluoroethane] vapors being 6 1/2 times heavier than air will readily displace oxygen in pits and enclosed spaces such as the inside of tracked vehicles. Ventilation must be utilized when this solvent is used in enclosed spaces, otherwise its use must be limited to one pint quantities.

General Dynamics Land Systems Division Safety Bulletin p 4 (April 1983); J.A. at 1006.

Again on July 9, 1983, a General Dynamics employee from another plant, Frederick Spearing, became seriously ill at the Plant's test track while sitting inside the driver's compartment of a tank. He remained in that position while two employees poured several gallons of solvent onto the floor of the tank. Moreover, to clear an opening for the solvent to enter, employees rotated the tank's turret in such a manner that it blocked the only exit from the compartment where Mr. Spearing was sitting. He lost consciousness in the presence of a supervisor. J.A. at 367-70; Brief for Secretary at 14-15. The relevant General Dynamics injury report ascribed the injury "to inhalation of fumes from Genesolv D (trichloro-trifluoroethane)." Supervisors Report of Accident (July 11, 1983); J.A. at 971.

In yet a third incident on September 21, 1983, Plant employee Charles Paling also suffered from exposure to solvent fumes. After entering a tank and pouring approximately two gallons of solvent to clean a hydraulic leak, Paling exited and used a portable device to ventilate the tank. This was in apparent compliance with the ventilation requirement in the safety bulletin that was issued following the incident of March 1983. Paling then re-entered the tank. Another employee later discovered him inside the driver's compartment shaking and foaming from the mouth. Brief for UAW at 10-11; Brief for Secretary at 16; see J.A. at 299-314, 343-48.

As it had done before, the UAW complained to OSHA about the Paling incident. While OSHA conducted an investigation, a General Dynamics employee at a different plant died from exposure to solvent fumes. Brief for Secretary at 12 n. 8; J.A. at 719. Shortly thereafter, on November 29, 1983, OSHA cited General Dynamics for violations of section 5(a)(1) of the Act ("statutory charge"), and of OSHA's specific standard for governing an employee's exposure to the solvent, 29 C.F.R. Sec. 1910. 1000(a)(2) & (e). OSHA sought penalties totalling $18,000.

The statutory charge stated that General Dynamics had violated section 5(a)(1) because it "did not furnish employment and a place of employment which were free from recognized hazards" associated with exposure to solvent vapors in confined spaces requiring special entry procedures. Citation at 1; J.A. at 7. General Dynamics contested this citation, and the matter was referred to the ALJ. After hearing evidence for eighteen days, he determined, as a matter of law, that "the circumstances of this case are governed solely by the regulations at 29 C.F.R. Sec. 1910.1000(a)-(d) which set forth the limits of employee exposure to trichloro trifluoroethane." ALJ decision at 12; J.A. at 119. Subsection (a) provides that employers must not expose employees...