Reich v. Simpson, Gumpertz & Heger, Inc.

• Decision Date: 09 April 1993
• Docket Number: No. 92-2237,92-2237
• Citation: 3 F.3d 1
• Parties: , 16 O.S.H. Cas.(BNA) 1313, 1993 O.S.H.D. (CCH) P 30,180 Robert B. REICH, Secretary of Labor, Petitioner, v. SIMPSON, GUMPERTZ & HEGER, INC., and Occupational Safety and Health Review Commission, Respondents. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

3 F.3d 1

62 USLW 2124, 16 O.S.H. Cas.(BNA) 1313,

1993 O.S.H.D. (CCH) P 30,180

Robert B. REICH, Secretary of Labor, Petitioner, v. SIMPSON, GUMPERTZ & HEGER, INC., and Occupational Safety and Health Review Commission, Respondents.

No. 92-2237.

United States Court of Appeals First Circuit.

Heard April 9, 1993.

Decided Aug. 20, 1993.

Bruce Justh, with whom Marshall J. Breger, Sol. of Labor, Judith E. Kramer, Deputy Sol. of Labor, and Joseph M. Woodward, Associate Sol. for Occupational Safety and Health, Washington, DC, were on brief, for petitioner.

David J. Hatem, with whom Maura A. Greene and Burns & Levinson, Boston, MA, were on brief, for respondents.

Mark A. Casso, Arthur E. Schwartz, Elizabeth A. Davis, Robert C. Gombar, Arthur G. Sapper, and McDermott, Will & Emery, Washington, DC, on brief, for amici curiae The American Consulting Engineers Council, The Nat. Soc. of Professional Engineers, and The American Institute of Architects.

Before BREYER, Chief Judge, SELYA and STAHL, Circuit Judges.

STAHL, Circuit Judge.

In this appeal, the Secretary of Labor ("the Secretary") challenges a decision of the Occupational Safety and Health Review Commission ("the Commission") granting summary judgment ¹ in favor of appellee Simpson, Gumpertz & Heger, Inc. ("SGH"). We affirm.

I. Standard of Review

We review the Commission's decision to determine whether its factual findings are supported by substantial evidence in the record, 29 U.S.C. Sec. 660(a), and whether its legal conclusions are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" 5 U.S.C. Sec. 706(2)(A). See also National Eng'g & Contracting Co. v. Occupational Safety & Health Admin., 928 F.2d 762, 767 (6th Cir.1991). In making these determinations, we must be mindful " 'that an agency's construction of its own regulations is entitled to substantial deference.' " Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 150, 111 S.Ct. 1171, 1175, 113 L.Ed.2d 117 (1991) (quoting Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 2341, 90 L.Ed.2d 921 (1986)). Where the meaning of a regulation is ambiguous, the reviewing court should give effect to the agency's reasonable interpretations, i.e., interpretations which " 'sensibly conform[ ] to the purpose and wording of the regulation[ ]....' " Id. 499 U.S. at 151, 111 S.Ct. at 1175 (citation omitted) (quoting Northern Indiana Pub. Serv. Co. v. Porter County Chapter of Izaak Walton League of America, Inc., 423 U.S. 12, 15, 96 S.Ct. 172, 174, 46 L.Ed.2d 156 (1975)). In contrast, no deference is warranted where the agency's interpretation is inconsistent with the wording of the regulation. Id. 499 U.S. at 158, 111 S.Ct. at 1180 ("[W]e emphasize that the reviewing court should defer to the Secretary only if the Secretary's interpretation is reasonable.") (emphasis in original).

II. Factual Background

Viewing the record in a light most favorable to the Secretary, we summarize the relevant facts. The events surrounding this litigation arise out of the construction of the Fuller Laboratories Building ("the project") at Worcester Polytechnic Institute ("WPI") in Worcester, Massachusetts. Sometime in 1987, WPI, the owner of the project, hired Payette Associates, Inc. ("Payette"), an architectural firm, to serve as project architect. In June 1987, SGH, an engineering firm located in Arlington, Massachusetts, contracted with Payette to perform certain structural engineering services in connection with the project. The general contractor for the project was Francis Harvey & Sons, Inc. ("Harvey").

The building structure was to consist of five floors of poured concrete placed over a base of steel and temporary metal decking. As general contractor, Harvey was responsible for generating a set of "shop drawings" for the metal decking indicating, inter alia, any shoring necessary to support the decking during the pouring of the concrete. As design engineer, SGH had a duty to review the shop drawings submitted by Harvey for conformance with the project's design concepts and contract specifications. ²

On or about July 9, 1988, Harvey submitted the shop drawings of the metal decking to SGH for review. In reviewing those shop drawings, SGH made various notations on the drawings indicating potential trouble spots. One such notation suggested that additional shoring be placed in the area adjacent to the building's elevator shaft.

According to the shop drawings, an area on floor 2 of the building was to be composed of metal decking, four and three-quarters inches of concrete, a layer of insulation, and another three inches of concrete topping ("the multi-layered area"). The drawings did not indicate, however, the amount of time that should elapse between the first and second pours of concrete in this area. SGH made no notations or revisions concerning the indicated shoring of the metal decking in the multi-layered area.

On December 13, 1988, Harvey's superintendent, Mr. Dwight Mitchell, began pouring the first layer of concrete in the multi-layered area. He planned to pour the first layer of concrete, place the layer of insulation, and pour the second layer of concrete topping in one day. After the first layer of concrete was poured in the multi-layered area, Mitchell noticed that a section of the metal decking in a different area of floor 2 was beginning to sag. Concerned about the amount of deflection, Mitchell telephoned Paul Kelley, SGH's project manager, at Kelley's office in Arlington, Massachusetts. Mitchell informed Kelley of the deflection he had observed and explained his plan for completing the floor that day. When told that the amount of deflection was approximately three-eighths to one-half inch, Kelley stated that that amount of deflection was "normal."

Mitchell then mentioned the multi-layered area, and Kelley asked him how he planned to proceed. Mitchell explained that he intended to pour both layers of concrete in one day. According to Mitchell, Kelley "thought for a minute" and told him "I don't see any problem with it...." Mitchell testified that, as a result of this conversation, he "felt assured that it was all safe to just go ahead as we had planned on doing...."

At some time after this conversation, Mitchell began pouring the second layer of concrete in the multi-layered area. The metal decking in the multi-layered area, however, was not properly shored and could not support the weight of both layers of wet concrete. As a result, the metal decking in that area collapsed, injuring five workers. Importantly, SGH had no employees at the worksite. ³ On March 13, 1989, the Secretary issued a citation to SGH pursuant to 29 C.F.R. Sec. 1926.703(a)(1), ⁴ for failure to shore adequately a lateral load. The Secretary proposed a $1000 penalty for the alleged violation. SGH contested the citation in a letter to the Department of Labor dated April 12, 1989. On June 7, 1989, the Secretary then filed a complaint against SGH before the Commission, requesting that the citation and proposed penalty be affirmed.

On September 24, 1990, SGH filed a motion for summary judgment, arguing that the citation should be vacated. On November 27, 1990, the administrative law judge ("ALJ") heard oral argument, and on February 26, 1991, granted the motion and vacated the citation. Subsequently, on April 11, 1991, the Secretary filed a petition for review before the Commission. The Commission heard oral argument on May 28, 1992, and on August 28, 1992, issued a lengthy decision affirming the ALJ. This appeal followed.

III. Discussion

Congress enacted the Occupational Safety and Health Act of 1970, 29 U.S.C. Secs. 651- 678 ("OSHA"), to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources[.]" 29 U.S.C. Sec. 651(b). To that end, OSHA placed primary responsibility on employers, those individuals who oversee and control the work environment, to achieve compliance with its standards and insure a safe workplace. See S.Rep. No. 1282, 91st Cong., 2d Sess. 9 (1970), reprinted in 1970 U.S.C.C.A.N. 5177, 5186 ("Employers have primary control of the work environment and should insure that it is safe and healthful.").

Pursuant to OSHA, an employer's duties flow from two sources. First, OSHA imposes a general duty upon each "employer" ⁵ to "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[.]" 29 U.S.C. Sec. 654(a)(1). Second, OSHA imposes a specific duty upon employers to abide by the occupational safety and health standards promulgated by the Secretary. See 29 U.S.C. Sec. 654(a)(2). ⁶

The Secretary has promulgated occupational safety and health standards, otherwise known as "general industry standards." See 29 C.F.R. Part 1910 (1992). The Secretary has also enacted industry-specific standards, which, as authorized by the Act, see 29 U.S.C. Sec. 652(10), are borrowed from previously enacted federal statutes and regulations. 29 C.F.R. Sec. 1910.12-.16 (1992).

Indeed, shortly after the Act became effective, the Secretary summarily adopted a group of federal standards for the construction industry that had previously been promulgated under the Construction Safety Act of 1969, 40 U.S.C. Sec. 333. See 29 C.F.R. Part 1926 (1992). 29 C.F.R. Sec. 1910.12(a) defines the regulatory universe to which these construction standards apply:

The [Construction Safety Act] standards prescribed in part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by...