A. Prokosch & Sons Sheet Metal, Inc.; Mid-Hudson Automatic Sprinkler Company, Inc. (Commission decision, September 30, 1980)

Read the official release (oshrc.gov)

Plain-English summary

Decided by the Commission, Chairman Cleary with Commissioners Barnako and Cottine. Commissioner Cottine dissented in part. Counsel were Baruch A. Fellner of the Office of the Solicitor and Francis V. LaRuffa, Regional Solicitor, for the Secretary, with Dennis Paese and Paul A. Moore for the employers.

Two cases, one decision. This release covers two dockets. No. 76-406 is A. Prokosch & Sons Sheet Metal, Inc., decided below by Judge Edward V. Alfieri. No. 76-576 is Mid-Hudson Automatic Sprinkler Company, Inc., decided below by Judge Seymour Fier. Both judges found a violation of section 5(a)(1), and both decisions were directed for review under section 12(j). The cases were tried and argued separately, but footnote 2 records that the Commission consolidated them for decisional purposes under 29 C.F.R. § 2200.9 because they involve common issues of fact and law. There is a single caption and a single date, September 30, 1980, so both dockets carry that date. Note that the released filename truncates the second docket to 76-5, while the caption and the body both give 76-576.

How the cases arose. Prokosch was the sheet metal subcontractor and Mid-Hudson the fire protection subcontractor on a ten-story residential building under construction in Middletown, New York. The building was precast concrete, 58 feet wide by 147 feet long. OSHA compliance officer John Tomich inspected on December 5, 8, 9 and 11, 1975. Prokosch employees were installing ductwork on the seventh, eighth and ninth floors. Mid-Hudson employees were installing stand pipe, hose cabinets and sprinkler protection in various areas.

Work was in progress on the roof, and access to the building had been reduced to two openings on the south side. A three-foot wide entrance at the extreme west end was used mainly for personnel. A six-foot wide opening at the extreme east end, 140 feet away, was used for both material and personnel. Employees of both subcontractors used them throughout the workday. Across all four inspection days Tomich saw a crawler crane roaming back and forth on the face of the building on, as he put it, maybe a 75 foot travel. The crane stood about 30 to 40 feet from the edge of the south face and lifted precast concrete parapet sections weighing several tons, along with brick, block, concrete, scaffolding material, hand tools and buckets, carrying them back and forth across the two entrances and up to the roof.

Tomich believed canopies should have been erected over the entrances. He agreed they would not stop a parapet section, but thought they would protect against smaller dropped objects. He testified that the hazard of being struck by falling objects at high-rise entrances is recognized in the construction industry and that erecting canopies is the practice. In the Mid-Hudson case he also pointed to section 23-1.7(a)(1) of the New York State Industrial Code, 12 NYCRR 23-1.7, which requires suitable overhead protection at every place where persons are required to work or pass that is normally exposed to falling material or objects. Mid-Hudson argued the provision was no longer in effect; footnote 5 records that it offered no evidence the statute was defunct and that the Commission's own research indicated it had not been repealed. The same provision was in evidence in Prokosch, but there Tomich gave no testimony about its relevance to industry recognition.

Both employers put on evidence that canopies were not commonly erected at entrances to buildings under construction. Mid-Hudson's witnesses also questioned their value, since a canopy could not stop the heaviest objects, and suggested that employees naturally watch the crane and avoid working under its load. Both argued that erecting canopies was the general contractor's job, not a subcontractor's. Judge Fier found the hazard recognized, relying partly on Mid-Hudson's own witnesses and partly on the New York code. Judge Alfieri was persuaded by Tomich's testimony on industry recognition. Both judges found that an employee struck by a falling object at an entrance would likely suffer death or serious harm.

The new argument, and why the Commission heard it. On review Prokosch relied mainly on a point it had never made to Judge Alfieri. Two other subcontractors on the same site had won before Judge Abraham Gold, who vacated similar section 5(a)(1) citations because a specific standard covered the condition. Those decisions were J & G Drywall, Inc. (No. 76-578, 1977) and A. C. Smith & Co., 5 BNA OSHC 1748 (No. 76-471, 1977). Footnote 6 records what became of them: the Secretary petitioned for review in J & G Drywall and Chairman Cleary granted the petition, but the Commission granted the Secretary's motion to withdraw it on July 1, 1977, and in A. C. Smith a general direction for review by former Commissioner Moran drew no interest from either party, so the decision was affirmed without review. The provision Judge Gold applied was section 5-3.2.3(f) of ANSI B30.5-1968, the Safety Code for Crawler, Locomotive, and Truck Cranes, made applicable to construction work by 29 C.F.R. § 1926.550(b)(2). It reads: "The operator should avoid carrying loads over people."

Commission Rule of Procedure 92(d) limits review to issues raised below except in extraordinary circumstances. The Commission found such a circumstance here. Two other subcontractors on the same site had obtained favorable decisions on this very issue, and the goal of uniform application of the Act required addressing it for Prokosch. Mid-Hudson had never raised the issue at all, but its case was indistinguishable and was decided the same way.

The standard covers the same hazard. The Secretary argued the citation was aimed at the absence of overhead protection at access areas, which would guard against falling objects from any source, while the ANSI provision addresses only crane hazards. The Commission rejected the distinction on this record. The only evidence of possible falling objects in either case was Tomich's testimony that the crane operating over the building entrances endangered employees there, which is precisely the hazard the provision addresses.

"Should" means advisory, and the Commission would not revisit that. The Secretary asked the Commission to amend the Prokosch citation under Rule 15(b) of the Federal Rules of Civil Procedure to allege a violation of the ANSI provision, acknowledging that under existing precedent the provision would be advisory and asking that the precedent be overruled. Section V of the introduction to ANSI B30.5-1968 states that mandatory rules are characterized by "shall" and that a rule of an advisory nature is indicated by "should" or stated as a recommendation. In McHugh & McHugh, 5 BNA OSHC 1165 (No. 13010, 1977), the Commission relied on that same introduction to hold advisory another provision of the same ANSI code, published at 29 C.F.R. § 1910.180(h)(4)(ii), reading "No person should be permitted to stand or pass under a load on the hook." The Secretary conceded that case was indistinguishable and the Commission agreed.

The Commission then traced the wider line of authority. United States Steel Corp., 5 BNA OSHC 1289 (Nos. 10825 & 10849, 1977), held that the word "should" in 29 C.F.R. § 1910.179(b)(2) made the design specifications advisory as to cranes built before August 31, 1971, again by reference to the underlying ANSI source standard. Two courts of appeals agreed: Marshall v. Anaconda Co., Montana Mining Division, 596 F.2d 370 (9th Cir. 1979), and Marshall v. Pittsburgh-Des Moines Steel Co., 584 F.2d 638 (3d Cir. 1978). The Commission had recently followed United States Steel in General Dynamics Corp., Electric Boat Division, 8 BNA OSHC 1360 (No. 78-3290, April 30, 1980). In Kennecott Copper Corp., 4 BNA OSHC 1400 (No. 5958, 1976), aff'd, 577 F.2d 1113 (10th Cir. 1977), the Secretary had changed "should" to "shall" when adopting section 3.3 of ANSI A10.8-1969 as 29 C.F.R. § 1910.28(a)(3); because the source defined "should" as advisory, that was a substantive amendment and invalid without section 6(b) rulemaking. Marshall v. Union Oil Co. of California, 616 F.2d 1113 (9th Cir. 1980), reached the same conclusion.

Against the Secretary's argument that these holdings conflict with the remedial purpose of the Act, the Commission invoked its responsibility to maintain a uniform and orderly framework of national law, citing S & H Riggers and Erectors, Inc., 7 BNA OSHC 1260, 1264 (No. 15855, 1979). Long-established precedent that every reviewing court has endorsed should not be overturned, and if the remedial purpose is hampered the Secretary can act through rulemaking under section 6(b). Section 5-3.2.3(f) is therefore advisory. Because an advisory standard cannot be the basis for finding a violation, the Commission did not reach the motion to amend. Footnote 11 records Chairman Cleary's position: he has dissented from some of these holdings in the past but now follows them in the interest of reasonable expectancy in the application of the standards, citing General Dynamics and Westinghouse Electric Corp. v. OSHRC, 617 F.2d 497, 501 (7th Cir. 1980).

The step that decides the case. The Secretary's last argument was that an advisory standard, precisely because it cannot be enforced, should not displace section 5(a)(1). He pointed to former Commissioner Van Namee's concurrence in Kingery Construction Co., 3 BNA OSHC 1070 (No. 2565, 1975). The Commission disagreed. The rule that a specific standard makes a section 5(a)(1) citation inappropriate reflects the Congressional judgment that safe workplaces are best achieved through promulgating and enforcing specific standards. Mississippi Power & Light Co., 7 BNA OSHC 2036, 2041 (No. 76-2044, 1979). Such standards embody the Secretary's considered judgment after input from safety experts and affected persons, and they put employers on notice of what they must do. Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976). Advisory standards, though unenforceable, still instruct employers in the appropriate means of alleviating a hazard, and an employer who complies with one should be able to rely on having discharged its duty as to that hazard. So a hazard addressed by an advisory standard cannot be the subject of a section 5(a)(1) citation. Van Namee's contrary opinion offered no supporting rationale, and the Secretary's brief offered no persuasive reasoning.

Disposition. The citations under section 5(a)(1) were inappropriately issued, the Secretary's motion to amend in No. 76-406 is denied, the judges' decisions are set aside, and the citations are vacated. Footnote 4 preserves the parts nobody appealed: Judge Alfieri affirmed a citation against Prokosch under 29 C.F.R. § 1926.150(e)(1) and vacated one under § 1926.150(e)(2), and Judge Fier affirmed citations against Mid-Hudson under both provisions. No party excepted and no compelling public interest warranted review, so those portions carry the precedential value of unreviewed judges' decisions. Cargill, Inc., 7 BNA OSHC 2045 (Nos. 78-2862 & 78-2864, 1979).

Cottine, dissenting. He joins the holding that section 5-3.2.3(f) is advisory, for the reasons in the lead opinion, but not the holding that a hazard addressed by an advisory standard cannot be cited under section 5(a)(1). He writes that his colleagues have once again created a void in the protection afforded American workers, citing Pennsuco Cement & Aggregates, Inc., 8 BNA OSHC 1378 (No. 15462, 1980). His argument is definitional. An advisory provision is not an occupational safety and health standard under section 3(8) of the Act, 29 U.S.C. § 652(8), because it does not require conditions or the adoption of practices, means, methods, operations or processes. He quotes the Secretary's own statement accompanying adoption of the construction standards, 36 Fed.Reg. 10466 (1971), that national consensus standards contain only the mandatory provisions of ANSI and NFPA standards and that advisory provisions, while encouraged, are not adopted. He traces the construction standards from section 107 of the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 327, through 29 C.F.R. Part 1518 and § 1910.12(a) to Part 1926, which the release cites as 36 Fed.Reg. 10466, 10469 (1971). The preemption rule as the Commission has always stated it, in Brisk Waterproofing Co., 1 BNA OSHC 1263, 1264 (No. 1046, 1973), turns on a duly promulgated standard, and an advisory ANSI provision is neither a standard nor duly promulgated. Section 5(a)(1) exists to cover situations a promulgated standard might not treat, Sun Shipbuilding & Drydock Co., 1 BNA OSHC 1381 (No. 161, 1973), which he says is exactly this situation. He would hold the citations appropriate and have the Commission decide their merits.

Upstream artifacts. The release carries typographical errors that are reproduced verbatim below: "Locomtive" in footnote 2 of the dissent, "adivsory" twice within the quoted Federal Register passage, "requiements" in the dissent's opening paragraph, "Section 5(a)(1) is ended" where the sense requires "is intended," and "36 Fed.Reg 7340" without a period. The header line of the release also truncates the companion docket to "Docket No. 76-5."

Decision snapshot

• Cited standard(s): Section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), the general duty clause. The provision held to displace it is section 5-3.2.3(f) of ANSI B30.5-1968, incorporated by 29 C.F.R. § 1926.550(b)(2). The unreviewed portions of the judges' decisions involved 29 C.F.R. § 1926.150(e)(1) and § 1926.150(e)(2).
• Outcome: Vacated. Both judges' decisions are set aside and both section 5(a)(1) citations are vacated. The Secretary's motion to amend the Prokosch citation to allege a violation of the ANSI provision is denied.
• Key point: An ANSI provision phrased with "should" is advisory and cannot support a finding of violation, but its applicability to the cited hazard still makes a general duty clause citation inappropriate. Commissioner Cottine dissents from that second half, arguing an advisory provision is not a duly promulgated standard and so cannot preempt anything.

Full text (OSHRC public release)

Docket No. 76-406; Docket No. 76-5

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.

OSHRC Docket No. 76-406; OSHRC Docket No. 76-576

Occupational Safety and Health Review Commission

September 30, 1980

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Dennis Paese, for the employer

Paul A. Moore, for the employer

OPINION:

DECISION

BY THE COMMISSION:

These cases arise under the Occupational Safety and Health Act of 1970, 29 U.S.C.

651-678 ("the Act.").

At issue are citations alleging that the Respondents violated section 5(a)(1) of the Act, n1 29 U.S.C.

654(a)(1), by failing to provide overhead protection at the entrances to a building that was under construction.

In No. 76-406, Judge Edward V. Alfieri concluded that A. Prokosch & Sons Sheet Metal, Inc. ("Prokosch") violated section 5(a)(1) as alleged.

In No. 76-576, Judge Seymour Fier reached a similar conclusion with respect to Mid-Hudson Automatic Sprinkler Company ("Mid-Hudson").

Both decisions were directed for Commission review pursuant to section 12(j) of the Act, 29 U.S.C.

661(i). n2 For the reasons stated below, we conclude that the citations alleging violations of section 5(a)(1) are inappropriate due to the applicability of a specific standard to the cited condition. n3 In Prokosch, we [*2]

further deny the Secretary's motion to amend to allege a violation of the applicable standard.

Accordingly, we reverse the judges' decisions and vacate the citations. n4

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

n1 Section 5(a)(1) provides: "Sec. 5(a) 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."

n2 The cases were tried and argued separately.

However, because they involve common issues of fact and law, we hereby consolidate them for decisional purposes.

29 C.F.R.

2200.9.

n3 It is well established that the applicability of a specific standard renders citation to

5(a)(1) inappropriate. Mississippi Power & Light Co., 79 OSAHRC, 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979).

n4 Judge Alfieri also affirmed a citation alleging that Prokosch failed to comply with 29 C.F.R.

1926.150(e)(1) and vacated a citation alleging that Prokosch failed to comply with 29 C.F.R.

1926.150(e)(2).

Judge Fier affirmed citations alleging that Mid-Hudson failed to comply with 29 C.F.R.

1926.

150(e)(1) and 1926.150(e)(2).

No party has taken exception to those aspects of Judge Alfieri's and Judge Fier's decisions.

Moreover, there is no compelling public interest in Commission review of those aspects of the decisions.

Therefore, those portions of the decisions will not be reviewed and are accorded the precedential value of unreviewed judges' decisions.

Cargill, Inc., 79 OSAHRC, 7 BNA OSHC 2045, 1979 CCH OSHD P23,981 (Nos. 78-2862 & 78-2864, 1979), and cases cited therein.

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I

Prokosch was the sheet metal subcontractor and Mid-Hudson the fire protection system subcontractor for the construction of a ten-story residential building in Middletown, New York.

On December 5, 8, 9, and 11, 1975, compliance officer John Tomich of the Occupational Safety and Health Administration inspected the worksite.

At that time, Prokosch's employees were installing ductwork on the seventh, eighth, and ninth floors, and Mid-Hudson's employees were installing stand pipe, hose cabinets, and sprinkler protection in various areas of the building.

The partially completed building, which was constructed of precast concrete, measured 58 feet wide by 147 feet long.

At the time of the inspection, work was in progress on the roof of the building and access to the building had been limited to two openings on its south side.

On the extreme west end was a three-foot wide entrance used primarily for personnel ingress and egress.

One hundred and forty feet away on the extreme east end of the south face of the building was a larger six-foot wide opening that was used for both material and personnel.

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Employees of both Prokosch and Mid-Hudson used these entrances to enter and leave the building during the workday.

Throughout the four days of his inspection of this worksite, Tomich observed a crawler crane "roaming back and forth on the face of the building on, maybe, a 75 foot travel." Located about 30-40 feet from the edge of the south face of the building, this crane was hauling precast concrete parapet sections, which weighed several tons, as well as smaller items such as brick, block, concrete, scaffolding material, hand tools, and buckets.

It carried these items back and forth across the two entrances, lifting them from ground level to employees working on the roof.

Tomich was concerned about the possibility that objects being lifted by the crane could fall and strike employees who were using the entrances to enter or leave the building.

He therefore thought that canopies should have been erected over the entrances to protect the employees against this hazard. Although agreeing that such canopies would not provide protection against some of the material being lifted, such as the precast concrete parapet sections, Tomich thought the canopy would provide useful protection [*5]

against smaller objects that the crane might drop.

In Tomich's opinion, the hazard of employees being struck by falling objects at the entrances to high-rise construction sites was recognized in the construction industry.

He further testified that, in his experience, it was the practice to erect canopies over these entrances to protect against the hazard. Additionally, in the Mid-Hudson case, Tomich pointed to a provision of the New York State Industrial Code, which states that overhead protection shall be provided over "every place where persons are required to work or pass that is normally exposed to falling material or objects . . ." n5 as further evidence that the erection of such canopies is commonly required to protect against overhead hazards.

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

n5 The pertinent section of the Code, 12 NYCRR 23-1.7 (as amended February 1, 1975), reads in its entirety:

23-1.7 Protection from general hazards. (a) Overhead hazards.

(1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection.

Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength.

Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.

Mid-Hudson objected to Judge Fier's consideration of this section, saying among other things that it was no longer in effect.

We note, however, that Mid-Hudson has not offered any evidence that the statute is "defunct," and our research indicates it has not been repealed.

Section 23-1.7(a)(1) was also introduced into evidence in Prokosch, although in that case Tomich did not testify concerning its possible relevance to industry recognition of the hazard.

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Both Prokosch and Mid-Hudson presented evidence tending to show that canopies were not, in their experience, commonly erected at entrances to buildings under construction.

Additionally, Mid-Hudson's witnesses questioned the value of such canopies based on the inability of the canopies to protect against the heaviest objects that could fall from the crane. They suggested that adequate protection was provided by the natural tendency of construction employees to observe the operation of the crane and to avoid areas directly under the crane's load. Both employers also argued before the judges in the respective cases that if canopies should have been erected, it was the responsibility of the general contractor to do so and, as subcontractors on the site, they should not have been charged with responsibility for the absence of canopies.

Judge Fier concluded that Mid-Hudson violated section 5(a)(1) as alleged.

He noted that the testimony of Mid-Hudson's own witnesses established recognition of the hazard of falling objects, and he also relied on section 23-1.7(a)(1) of the New York Industrial Code to support [*7]

this conclusion.

In Prokosch, Judge Alfieri similarly concluded that the Secretary had sustained his burden of proving a section 5(a)(1) violation.

He was persuaded by Tomich's testimony that the hazard of falling objects was recognized in the construction industry.

In both cases, the judges found that an accident resulting from an employee being struck by a falling object at an entrance to the building would likely be death or serious harm.

II

Both employers petitioned the Commission to review the judges' decisions.

Mid-Hudson makes substantially the same arguments before us that it made to Judge Fier.

Prokosch, however, in its petition for review, relies primarily on an argument it had not raised before Judge Alfieri.

Prokosch points out that, in two other cases arising out of the same inspection, Administrative Law Judge Abraham Gold had vacated similar section 5(a)(1) citations on the ground that a specific standard was applicable to the cited condition. n6 The standard on which Judge Gold had relied was section 5-3.2.3(f) of ANSI B30.5 - 1968, Safety Code for Crawler, Locomotive, and Truck Cranes, a standard published by the American National Standards Institute and made [*8]

applicable under the Act to construction work by 29 C.F.R.

1926.550(b)(2). n7 The standard in question applies to crawler, locomotive, and truck cranes, and provides: "The operator should avoid carrying loads over people." Prokosch also reiterates the arguments it made before the judge concerning the merits of the section 5(a)(1) citation.

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

n6 The judge's decisions Prokosch cites are J & G Drywall, Inc., 1977-78 CCH OSHD P21,576 (No. 76-578, 1977), and A. C. Smith & Co., 77 OSAHRC 111/D13, 5 BNA OSHC 1748, 1977-78 CCH OSHD P21,570 (No. 76-471, 1977).

The Secretary petitioned for review of Judge Gold's decision in J & G Drywall, and Chairman Cleary granted the petition.

Subsequently, however, on July 1, 1977, the Commission granted the Secretary's motion to withdraw his petition.

In A. C. Smith, former Commissioner Moran entered a general direction for review.

However, neither party expressed interest in having the Commission review the judge's decision, so the Commission affirmed that decision without review.

77 OSAHRC 111/D11, 5 BNA OSHC 1748 (No. 76-471, 1977).

n7 This section provides, in pertinent part: "All crawler . . . cranes in use shall meet the applicable requirements for . . . operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes.

[*9]

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

In the absence of "extraordinary circumstances," the Commission will not decide issues that were not raised before an administrative law judge. n8 We conclude, however, that these cases present an extraordinary circumstance compelling us to decide the issue raised by Prokosch's petition even though Prokosch did not raise that issue before the judge.

As Prokosch has pointed out, two other subcontractors on the same site received favorable decisions from the Commission on the issue Prokosch now raises.

The goal of uniform application of the Act therefore requires that we consider that issue as it relates to Prokosch. n9 Similarly, although Mid-Hudson has not raised the issue at any time during these proceedings, that case is indistinguishable from Prokosch and should be decided in the same manner.

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

n8 Commission Rule of Procedure 92(d) provides, in pertinent part: "Except in extraordinary circumstances, the Commission's power to review is limited to issues of law or fact raised by the parties in the proceedings below." 44 Fed. Reg. 70,106, 70,111 (1979) (to be codified in 29 C.F.R.

2200.92(d)), formerly designated Rule 91a(d) and codified in 29 C.F.R.

2200.91a(d).

n9 We also note that the Secretary does not contend that Prokosch has raised the issue in an untimely manner.

[*10]

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

III

The Secretary first contends that section 5-3.2.3(f) of ANSI B30.5-1968 ("the standard") cannot render the section 5(a)(1) citation inappropriate because it applies to a different hazard than that for which Prokosch was cited.

The Secretary contends that the citation was directed at the lack of overhead protection for access areas to the building, and that such protection will protect employees from overhead hazards from all sources, including cranes. According to the Secretary, the standard is directed at only the more limited hazard attendant upon overhead hazards caused by crane operations.

We reject the Secretary's argument and conclude that the standard applies to the hazard for which the Respondents were cited.

While it may generally be true that such overhead hazards can arise from a variety of sources on a construction site, the only evidence of possible falling objects demonstrated by the records in these cases is Tomich's testimony that the operation of the crane over the building entrances presented the danger of falling objects at those entrances. This is precisely the hazard at [*11]

which the standard is directed.

Accordingly, we conclude that the standard applies to the facts of these cases.

IV

The Secretary next argues that, if the standard applies so as to render the citation to section 5(a)(1) inappropriate, the citation should be amended to allege that Prokosch violated the standard and should be affirmed as so amended.

The Secretary asserts that amendment is appropriate pursuant to Rule 15(b) of the Federal Rules of Civil Procedure n10 because a violation of the standard was tried by the consent of the parties.

The Secretary also, however, addresses an issue that is implicit in his amendment argument: whether the standard is advisory or mandatory. The Secretary recognizes that, under prior Commission precedent, the standard would be deemed advisory, and therefore could not serve as the basis for finding a violation of the Act.

The Secretary urges, however, that we overrule those precedents and hold that the standard is mandatory.

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

n10 Rule 15(b) provides, in pertinent part:

Rule 15.

Amended and Supplemental Pleadings.

---

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.

Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues . . . .

[*12]

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The question of the mandatory versus advisory nature of various standards has been addressed by the Commission and by reviewing courts on a number of occasions.

While the question has never arisen with respect to the precise standard at issue in these cases, a very similar question arose in McHugh & McHugh, 77 OSAHRC 35/A2, 5 BNA OSHC 1165, 1977-78 CCH OSHD P21,629 (No. 13010, 1977).

That case involved another provision of ANSI B30.5-1968 that the Secretary had adopted pursuant to section 6(a) of the Act, 29 U.S.C.

655(a), and which was published at 29 C.F.R.

1910.180(h)(4)(ii).

That standard provided: "No person should be permitted to stand or pass under a load on the hook." In concluding that section 1910.180(h)(4)(ii) was advisory, the Commission relied on section V of the introduction to ANSI B30.5-1968, which states: "Mandatory rules of this Code are characterized by the use of the word 'shall.' If a rule is of an advisory nature it is indicated by the use of the word 'should' or is stated as a recommendation." The Secretary asserts that the issue in McHugh & McHugh is indistinguishable [*13]

from that in these cases, and we agree.

The standard at issue here also uses the word "should," and therefore, based on section V of the introduction to ANSI B30.5-1968, it would be deemed advisory under the reasoning of McHugh & McHugh.

Another series of cases in which a similar question was presented is exemplified by United States Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1977-78 CCH OSHD P21,795 (Nos. 10825 & 10849, 1977).

That case concerned the standards applicable to overhead and gantry cranes published in 29 C.F.R.

1910.179.

In particular, the effect of the following provision at section 1910.179(b)(2) was at issue:

1910.179 Overhead and gantry cranes.

---

(b) General requirements --

---

(2) New and existing equipment. All new overhead and gantry cranes constructed and installed on or after August 31, 1971, shall meet the design specifications of the American National Standard Safety Code for Overhead and Gantry Cranes, ANSI B30.2.0-1967.

Overhead and gantry cranes constructed before August 31, 1971, should be modified to conform to those design specifications by February 15, 1972, unless it can be shown that the crane cannot

[*14]

feasibly or economically be altered and that the crane substantially complies with the requirements of this section.

(Emphasis added)

The Commission concluded that the use of the word "should" in referring to cranes constructed before August 31, 1971, rendered advisory to such cranes those provisions in section 1910.179 that are design specifications. Again, the Commission looked to the intent of an underlying ANSI standard, ANSI B30.2.0-1967, from which section 1910.179 was derived and which defined "shall" as mandatory and "should" as advisory. Two courts of appeals have agreed with the Commission's interpretation of section 1910.179(b)(2).

Marshall v. Anaconda Co., Montana Mining Division, 596 F.2d 370 (9th Cir. 1979); Marshall v. Pittsburgh-Des Moines Steel Co., 584 F.2d 638 (3d Cir. 1978). Moreover, the Commission has recently followed its holding in United States Steel Corp., supra. General Dynamics Corp., Electric Boat Division, 80 OSAHRC, 8 BNA OSHC 1360, 1980 CCH OSHD P24,416 (No. 78-3290, April 30, 1980).

Another case in which the word "should" as used in an ANSI standard was held to be advisory is Kennecott Copper Corp, 76 OSAHRC 81/A2, 4 BNA [*15]

OSHC 1400, 1976-77 CCH OSHD P20,860 (No. 5958, 1976), aff'd, 577 F.2d 1113 (10th Cir. 1977). Section 3.3 of ANSI A10.8-1969, Safety Requirements for Scaffolding, provides: "Guardrails and toeboards should be installed on all open sides and ends of platforms more than ten feet above the ground or floor . . . ." In adopting this as an occupational safety and health standard under section 6(a) of the Act, 29 U.S.C.

655(a), the Secretary changed the word "should" to "shall." 29 C.F.R.

1910.28(a)(3).

The Commission concluded that, because ANSI A10.8-1969 had defined "should" as advisory, the Secretary had substantively amended the standard and that such an amendment was invalid because the Secretary had not followed the rulemaking proceedings specified in section 6(b) of the Act, 29 U.S.C.

655(b).

On appeal in Kennecott, the Tenth Circuit agreed with the Commission's holding.

Another court recently reached the same conclusion.

Marshall v. Union Oil Co. of California, 616 F.2d 1113 (9th Cir. 1980).

The Secretary argues that these precedents conflict with the remedial purpose of the Act.

He therefore urges that we reject the holdings of these cases, look beyond the [*16]

plain meaning of the word "should" and the definition of that word contained in ANSI B30.5-1968, and conclude that the standard to which he seeks to amend in this case is mandatory.

Among the Commission's responsibilities is the establishment of a uniform and orderly framework of national law in adjudications involving occupational safety and health.

See S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1264, 1979 CCH OSHD P23,480 at 28,437 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979).

This responsibility militates against the Commission overturning long-established and consistently applied precedent, particularly when those courts of appeals that have considered the question have unanimously agreed with those precedents.

These cases do not present a compelling reason to depart from this general policy.

If, as the Secretary contends, the remedial purpose of the Act is seriously hampered by our decisions holding that certain standards are advisory, the Secretary has the authority to correct the situation through the rulemaking authority given him in section 6(b) of the Act, 29 U.S.C.

655(b).

Accordingly, we adhere to [*17]

our precedents and conclude that section 5-3.2.3(f) of ANSI B30.5-1968 is advisory. Since an advisory standard cannot be the basis for finding a violation of the Act, we need not further consider the Secretary's argument that the pleadings should be amended to charge a violation of the standard. n11

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n11 Chairman Cleary notes that, in the past, he has dissented from certain Commission decisions holding that the word "should," as used in various standards, is advisory. More recently, however, he has followed the precedents that the Commission and the courts have established on the subject in the interest of reasonable expectancy of the application of the standards.

See General Dynamics Corp., Electric Boat Div., 8 BNA OSHC at 1362 n. 7, 1980 CCH OSHD at p. 29,772 n. 7. See generally Westinghouse Electric Corp. v. OSHRC, 617 F.2d 497, 501 (7th Cir. 1980). Accordingly, to the extent applicable precedents hold that standards adopted under

6(a) of the Act, 29 U.S.C.

655(a), that are derived from advisory source standards are advisory under the Act, Chairman Cleary agrees to follow those precedents.

[*18]

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V

The Secretary's final argument is that, if the standard is deemed to be advisory, its existence cannot render the citations to section 5(a)(1) inappropriate. The Secretary refers to a concurring opinion in Kingery Construction Co., 75 OSAHRC 47/E11, 3 BNA OSHC 1070, 1974-75 CCH OSHD P19,537 (No. 2565, 1975), in which former Commissioner Van Namee indicated that a citation to section 5(a)(1) was appropriate despite the existence of an advisory standard directed to the cited condition.

The rule that the applicability of a specific standard renders citation to section 5(a)(1) inappropriate effectuates the Congressional intent that the Act's objective of achieving safe and healthful workplaces is best achieved through the promulgation and enforcement of specific standards.

Mississippi Power & Light Co., 79 OSAHRC, 7 BNA OSHC 2036, 2041, 1980 CCH OSHD P24,146 at 29,342 (No. 76-2044, 1979).

Such standards represent the considered judgment of the Secretary, after receiving input from safety experts and persons who will be affected by the standards, of the proper means to guard against particular [*19]

hazards. They promote the Act's objective by placing employers on notice of the steps they must take to provide safe and healthful workplaces to their employees.

Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976).

Although advisory standards cannot serve as the basis for an enforcement proceeding under the Act, they do instruct employers in the appropriate means of alleviating workplace hazards. An employer who complies with such a standard should be able to rely on its having fulfilled its duty toward that particular hazard placed on it by the Act.

We therefore conclude that a hazard addressed by an advisory standard cannot be the subject of a citation under section 5(a)(1).

We are not persuaded otherwise by Commissioner Van Namee's opinion in Kingery Construction Co., supra. That opinion offers no supporting rationale for its conclusion.

Moreover, the Secretary, in his brief in this case, offers no persuasive reasoning in support of his argument that an advisory standard does not render citation to section 5(a)(1) inappropriate.

We therefore conclude that the citations to section 5(a)(1) in these cases were inappropriately issued.

We further conclude [*20]

that the Secretary's motion to amend in No. 76-406 should be denied.

Accordingly, the judges' decisions are set aside and the citations are vacated. SO ORDERED.

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

In concluding that section 5(a)(1) of the Act, 29 U.S.C.

654(a)(1), is pre-empted by an advisory ANSI standard, my colleagues have once again created a void in the protection afforded American workers.

See, e.g., Pennsuco Cement & Aggregates, Inc., 80 OSAHRC, 8 BNA OSHC 1378, 1980 CCH OSHD P24,478 (No. 15462, 1980).

It is contrary to the purposes and provisions of the Occupational Safety and Health Act, 29 U.S.C.

651-678, to permit a recognized hazard to continue unabated at a worksite on the basis of the asserted applicability of an incorporated ANSI standard when that consensus standard carries with it no mandatory compliance requiements, and therefore is not an occupational safety and health standard within the meaning of section 3(8) of the Act, 29 U.S.C.

652(8). n1

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

n1 Section 3(8) of the Act states:

(8) The term "occupational safety and health standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

[Emphasis added.]

[*21]

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The relevant ANSI provision is section 5-3.2.3(f) of ANSI B30.5 1968, Safety Code for Crawler, Locomtive, and Truck Cranes. n2 It states, "The operator should avoid carrying loads over people." The Introduction to ANSI B30.5-1968 indicates at Section V, Mandatory and Advisory Rules, that "[i]f a rule is of an advisory nature it is indicated by the use of the word 'should' or is stated as a recommendation." See also 29 C.F.R.

1926.32(p) and (q).

In this respect the ANSI provision is indistinguishable from others previously considered by the Commission and the courts of appeals.

Accordingly, for the reasons set forth in the lead opinion, I join the majority in concluding that section 5-3.2.3(f) of ANSI B30.5-1968 is advisory. However, I do not join the majority in concluding "that a hazard addressed by an advisory standard cannot be the subject of a citation under section 5(a)(1)."

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

n2 ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes is incorporated by reference in 29 C.F.R.

1926.550(b)(2).

[*22]

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Provisions that are advisory in nature are not occupational safety and health standards within the meaning of the Act because they do not require "conditions, or the adoption or use of one or more practices, means, methods, operations, or processes" necessary for the maintenance of a safe workplace. 29 U.S.C.

652(8).

National consensus standards n3 and established Federal standards n4 are types of occupational safety and health standards that the Secretary of Labor was authorized to adopt under section 6(a) of the Act, 29 U.S.C.

655(a), without following the rulemaking procedures set forth in section 6(b) of the Act, 29 U.S.C.

655(b), and section 4 of the Administrative Procedure Act, 5 U.S.C.

553. The OSHA construction standards were established Federal standards originally promulgated by the Secretary to implement section 107 of the Contract Work Hours and Safety Standards Act, 40 U.S.C.

327, and codified in 29 C.F.R. Part 1518.

36 Fed.Reg 7340 (1971). The construction standards were adopted by the Secretary as occupational safety and health standards in 29 C.F.R.

1910.12(a) and [*23]

were later recodified as 29 C.F.R. Part 1926.

36 Fed.Reg. 10466, 10469 (1971). The following statement of the Secretary of Labor accompanied the adoption of the construction standards under the Act:

The new Part 1910 contains occupational safety and health standards which are either national consensus standards or established Federal standards.

---

. . . I do hereby designate as national consensus standards those standards in Part 1910 which are standards adopted and promulgated by either the American National Standards Institute or the National Fire Protection Association.

The national consensus standards contain only mandatory provisions of the standards promulgated by those two organizations.

The standards of ANSI and NFPA may also contain adivsory provisions and recommendations the adoption of which by employers is encouraged, but they are not adopted in Part 1910.

The established Federal standards are operative occupational safety and health standards in effect on April 28, 1971, and established by the Department of Labor pursuant to section 107 of the Contract Work Hours and Safety Standards Act as amended (40 U.S.C. 333). . .

36 Fed.Reg. 10466 (1971). The Secretary [*24]

clearly stated that adivsory ANSI provisions were not adopted as OSHA standards. n5 It is unreasonable to suggest that these same provisions can serve to excuse an employer's failure to comply with section 5(a)(1), the Act's general duty clause.

Commission precedent clearly establishes that,

a citation for a violation of section 5(a)(1) is invalid and will not lie, where a duly promulgated occupational safety and health standard is applicable to the condition or practice that is alleged to constitute a violation of the Act.

[Emphasis added.]

Brisk Waterproofing Co., Inc., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1264, 1973-74 CCH OSHD P16,345 at p. 21,261 (No. 1046, 1973), cited in Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979); Godwin Bevers Co., Inc., 75 OSAHRC 29/A2, 2 BNA OSHC 1470, 1974-75 CCH OSHD P19,206 (Nos. 1362 & 1373, 1975); Advance Air Conditioning, Inc., 74 OSAHRC 18/C3, 1 BNA OSHC 1626, 1973-74 CCH OSHD P17,585 (No. 1036, 1974); Sun Shipbuilding & Drydock Co., 73 OSAHRC 44/A9, 1 BNA OSHC 1381, 1973-74 CCH OSHD P16,725 (No. 161, 1973).

The advisory ANSI provision before us is

[*25]

not a standard, nor is it duly promulgated as an occupational safety and health standard. Section 5(a)(1) is ended "to cover those situations which might not be treated by a standard promulgated by the . . . [Secretary]." Sun Shipbuilding and Drydock Co., supra, 1 BNA OSHC at 1382, 1973-74 CCH OSHD P16,725 at p. 21,475. That is exactly the situation presented by these cases.

The citations to section 5(a)(1) of the Act are appropriate and the merits of these allegations should be determined by the Commission.

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

n3 Section 3(9) of the Act states:

(9) The term "national consensus standard" means any occupational safety and health standard or modification thereof which (1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies.

n4 Section 3(10) of the Act states:

(10) The term "established Federal standard" means any operative occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act.

n5 This limitation applies to advisory provisions included in a body of ANSI standards whether that body of standards is adopted directly as a national consensus standard or is adopted as a result of a prior incorporation by reference in an established Federal standard.

[*26]

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