United States Steel Corporation, Duquesne Plant (Commission decision, April 30, 1980)

Plain-English summary

One citation item was left in this case. It alleged that U.S. Steel's Duquesne plant failed to comply with 29 C.F.R. § 1910.179(g)(2)(i), part of the overhead and gantry crane standard.

The item never went to a hearing. In November 1975 the Secretary and U.S. Steel filed a joint stipulation and motion to stay the proceedings, agreeing that the facts here were identical to those in another U.S. Steel case then pending before the Commission. The Commission granted the stay. After it decided that other case in 1977, it lifted the stay and sent this one back to the judge.

Administrative Law Judge Joseph Chodes then granted U.S. Steel summary judgment. Following the Commission's decision in the companion case, he held that because the cited cranes were built before August 31, 1971, they fall outside § 1910.179(g)(2)(i), and he vacated the item.

The Commission affirmed. Its line of cases starting with that U.S. Steel decision and running through Pittsburgh-Des Moines Steel, Wheeling-Pittsburgh Steel, and General Dynamics holds that the provisions of § 1910.179 drawn from the construction and installation requirements in chapter 2-1 of the 1967 ANSI crane standard are advisory, not mandatory, for overhead and gantry cranes purchased and installed before August 31, 1971. The provision the judge ruled on comes from those requirements. Nobody disputed that these cranes were already in operation before that date, so summary judgment was correct and the item is vacated.

Commissioner Cottine had directed review on the Secretary's petition. The direction also asked whether the parties' stipulation barred the Commission from deciding the petition's issues, but both sides agreed the case turns on the grandfather clause, so the Commission did not reach the question of what legal effect the stipulation had. A footnote records that U.S. Steel's general superintendent submitted an affidavit stating the cranes predated August 31, 1971, and the Secretary never challenged it.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.179(g)(2)(i)
• Outcome: Vacated. The judge's summary judgment for the employer is affirmed in full and the citation item is vacated.
• Key point: The cited crane construction requirement was advisory for cranes purchased and installed before August 31, 1971; the cranes in this case were already in operation by that date.

Full text (OSHRC public release)

Docket No. 14948

1 of 202 DOCUMENTS

TURNER COMPANY

A. SCHONBEK & CO., INC.

NORANDA ALUMINUM, INC.

GENERAL MOTORS CORP., GM ASSEMBLY DIV.

ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.

CLEMENT FOOD COMPANY

MILLCON CORPORATION

FWA DRILLING COMPANY, INC.

CCI, INC.

GENERAL ELECTRIC COMPANY

CONSOLIDATED ALUMINUM CORPORATION

THE BRONZE CRAFT CORPORATION

CARGILL, INC.

CHAPMAN CONSTRUCTION CO., INC.

GALLO MECHANICAL CONTRACTORS, INC.

SPECIAL METALS CORPORATION

WILLAMETTE IRON AND STEEL COMPANY

NASHUA CORPORATION

WESTINGHOUSE ELECTRIC CORPORATION

RESEARCH-COTTRELL, INC.

ROCKWELL INTERNATIONAL CORPORATION

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.

BUNKOFF CONSTRUCTION CO., INC.

GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION

HARRIS BROTHERS ROOFING CO.

GENERAL DIVERS COMPANY

ORMET CORPORATION

R. ZOPPO CO., INC.

COEUR D'ALENE TRIBAL FARM

L. A. DREYFUS COMPANY

CMH COMPANY, INC.

BENTON FOUNDRY, INC.

MICHAEL CONSTRUCTION CO., INC.

WHIRLPOOL CORPORATION

BROWN & ROOT, POWER PLANT DIVISION

MARION POWER SHOVEL CO., INC.

ERSKINE-FRASER CO.

MORRISON-KNUDSEN AND ASSOCIATES

THE BOAM COMPANY

DIC-UNDERHILL, a Joint Venture

C. R. BURNETT AND SONS, INC.; HARLLEE FARMS

STRIPE-A-ZONE, INC.

FORTE BROTHERS, INC.

RAYBESTOS FRICTION MATERIALS COMPANY

TEXLAND DRILLING CORPORATION

THE ANACONDA COMPANY, WIRE AND CABLE DIVISION

SAM HALL & SONS, INC.

VAMPCO METAL PRODUCTS, INC.

LEONE INDUSTRIES, INC.

ASARCO, INC.

DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY

PLUM CREEK LUMBER COMPANY

PLUM CREEK LUMBER COMPANY

STEARNS-ROGER, INC.

FERRO CORPORATION, (ELECTRO DIVISION)

AMERICAN PACKAGE COMPANY, INC.

BROWN & ROOT, INC., POWER PLANT DIVISION

FLEETWOOD HOMES OF TEXAS, INC.

DONALD HARRIS, INC.

A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.

ELECTRICAL CONSTRUCTORS OF AMERICA, INC.

DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)

ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY

NAVAJO FOREST PRODUCTS INDUSTRIES

METROPAK CONTAINERS CORPORATION

AUSTIN BUILDING COMPANY

BABCOCK AND WILCOX COMPANY

DARRAGH COMPANY

BABCOCK & WILCOX COMPANY

OTIS ELEVATOR COMPANY

R. ZOPPO COMPANY, INC.

LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS

PENNSYLVANIA POWER & LIGHT CO.

HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY

NORTHWEST AIRLINES, INC.

INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.

GENERAL MOTORS CORPORATION, INLAND DIVISION

WELDSHIP CORPORATION

S & S DIVING COMPANY

SNIDER INDUSTRIES, INC.

NATIONAL STEEL AND SHIPBUILDING COMPANY

MAXWELL WIREBOUND BOX CO., INC.

CONTINENTAL GRAIN COMPANY

MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY

CAPITAL CITY EXCAVATING CO., INC.

GAF CORPORATION

PPG INDUSTRIES (CARIBE) a Corporation

DRUTH PACKAGING CORPORATION

SOUTHWESTERN ELECTRIC POWER COMPANY

TUNNEL ELECTRIC CONSTRUCTION CO.

WEATHERBY ENGINEERING COMPANY

JOHNSON STEEL & WIRE CO., INC.

AUSTIN ROAD CO.

MAYHEW STEEL PRODUCTS, INC.

LADISH CO., TRI-CLOVER DIVISION, a Corporation

PULLMAN POWER PRODUCTS, INC.

NATIONAL ROOFING CORPORATION

OSCO INDUSTRIES, INC.

HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY

S.J. GROVES AND SONS COMPANY

CAR AND TRUCK DOCTOR, INC.

PRESTRESSED SYSTEMS, INC.

TEXACO, INC.

GEORGIA HIGHWAY EXPRESS, INC.

RED LOBSTER INNS OF AMERICA, INC.

SUNRISE PLASTERING CORP.

STONE & WEBSTER ENGINEERING CORPORATION

H.B. ZACHRY COMPANY (INTERNATIONAL)

NATIONAL INDUSTRIAL CONSTRUCTORS, INC.

BUSHWICK COMMISSION COMPANY, INC.

CIRCLE T DRILLING CO., INC.

J.L. FOTI CONSTRUCTION COMPANY, INC.

TEXACO, INC.

KENNETH P. THOMPSON CO., INC.

HENRY C. BECK COMPANY

HEATH & STICH, INC.

FARMERS EXPORT COMPANY

FOSTER AND KLEISER

TURNER WELDING & ERECTION CO., INC.

TRI-CITY CONSTRUCTION CO.

THE DURIRON COMPANY, INC.

SAMSON PAPER BAG CO., INC.

MEL JARVIS CONSTRUCTION COMPANY, Inc.

MIDWEST STEEL ERECTION, INC.

GEISLER GANZ CORPORATION

NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY

NATIONAL MANUFACTURING COMPANY

WALLACE ROOFING COMPANY

REYNOLDS METALS COMPANY, INC.

UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.

SUFFOLK COUNTY CONTRACTORS, INC.

NORANDA ALUMINUM, INC.

ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC.

GENERAL ELECTRIC COMPANY

SERVICE SPECIALTY, INC.

ECCO HIGH FREQUENCY ELECTRIC CORP.

HENRY C. BECK COMPANY

REPUBLIC ROOFING CORPORATION

EASLEY ROOFING & SHEET METAL CO., INC.

MIDDLETOWN VOLKSWAGEN, INC.

RICHARD ROTHBARD, INC.

AUTOMATIC SPRINKLER CORPORATION OF AMERICA

PENNSUCO CEMENT AND AGGREGATES, INC.

AMFORGE DIVISION, ROCKWELL INTERNATIONAL

MASSMAN-JOHNSON (Luling), a joint venture; MASSMAN CONSTRUCTION CO.; AL JOHNSON CONSTRUCTION CO.

GENERAL MOTORS CORPORATION, CENTRAL FOUNDRY DIVISION

GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION

EDGEWATER STEEL CORPORATION

INTERLAKE, INC.

PRATT & WHITNEY AIRCRAFT, A DIVISION OF UNITED TECHNOLOGIES, INC.

UNITED STATES STEEL CORPORATION, DUQUESNE PLANT

OSHRC Docket No. 14948

Occupational Safety and Health Review Commission

April 30, 1980

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Lloyd H. Shenefelt, III, U.S. Steel Corporation, for the employer

John Durik, President, Local Union No. 1256, United Steelworkers of America, for employees

OPINION:

DECISION

BY THE COMMISSION:

An order of Administrative Law Judge Joseph Chodes, dated August 31, 1978, is before the Commission on review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C.

651-678 ("the Act").

Commissioner Cottine directed review of the Secretary's petition for discretionary review including the primary issue raised by the petition: n2

Whether the Judge erred in vacating the citation of an alleged violation of 29 C.F.R.

1910.179(g)(2)(i) on the ground that the cited overhead cranes were installed prior to August 31, 1971, and consequently not covered by the standard.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 29 U.S.C.

661(i).

n2 The direction for review also raised the question of "whether the 'Joint Stipulation and Motion for Stay of Proceedings' precludes the Review Commission from deciding the issues raised by the petition for discretionary review." However, both parties recognize that this case is cabpable or resolution by our interpretation of the grandfather clause contained in 29 C.F.R.

1910.179(g)(2)(i).

Accordingly, we need not consider the legal effect, if any, of the stipulation between the parties regarding 29 C.F.R.

1910.179.

[*2]

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Item 3 of Citation No. 1, the only item before us, alleged that Respondent failed to comply with 29 C.F.R.

1910.179(g)(2)(i).

This item was the subject of a Joint Stipulation and Motion for Stay of Proceedings filed on November 21, 1975, and subsequently granted by the Commission.

By the terms of the agreement the Secretary and Respondent agreed that the facts in the present case were identical to the facts in U.S. Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1977-78 CCH OSHD P21,795 (Nos. 10825 & 10849, 1977), then undecided.

Following our decision in U.S. Steel Corp., supra, we rescinded our stay of the proceedings and remanded the case to the judge.

In response to Respondent's motion for summary judgment, the judge, following our holding in U.S. Steel Corp., supra, concluded that since the cranes cited in item 3 of Citation No. 1 were constructed before August 31, 1971, they were exempt from the provisions of 29 C.F.R.

1910.179(g)(2)(i).

He franted Respondent's motion for summary judgment and vacated item 3 of Citation No. 1.

Beginning with our decision in U.S. Steel

[*3]

Corp., supra, and continuing in Pittsburgh-Des Moines Steel Co., 77 OSAHRC 75/E6, 5 BNA OSHC 1420, 1977-78 CCH OSHD P21,804 (No. 13708, 1977), aff'd, 584 F.2d 638 (3d Cir. 1978); Wheeling-Pittsburgh Steel Corp., 77 OSAHRC 81/C10, 5 BNA OSHC 1495, 1978 CCH OSHD P23,056 (Nos. 1611, 11327 & 14366, 1977), aff'd, sub nom, Marshall v. Pittsburgh-Des Moines Steel Co., 584 F.2d 638 (3d Cir. 1978); and most recently in General Dynamics Corp., No. 78-3290 (April 30, 1980), we have held that those provisions of section 1910.179 that are derived from the "construction and installation" requirements of ANSI B30.2.0.-1967 set out in chapter 2-1 of that standard are advisory with respect to overhead and gantry cranes purchased and installed before August 31, 1971.

The provisions of section 1910.179 as to which the judge granted summary judgment in this case are derived from those requirements.

Accordingly, there being no dispute that the cranes at issue were in operation before August 31, 1971, the judge's order is affirmed in full. n3 Respondent's motion for summary judgment is granted.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - -

[*4]

n3 Respondent submitted the affidavit of its general superintendent to the effect that the cranes involved in item 3 of Citation No. 1 were constructed prior to August 31, 1971.

This statement has not been challenged by the Secretary of Labor.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Item 3 of Citation No. 1 is vacated.

SO ORDERED.