Mel Jarvis Construction Company, Inc. (Commission decision, July 20, 1981)

Plain-English summary

The Secretary cited Mel Jarvis for not periodically inspecting two portable fire extinguishers, charging a failure to comply with 29 C.F.R.
§ 1926.150(c)(1)(viii). That standard requires portable extinguishers to be inspected periodically and maintained "in accordance with Maintenance and Use of Portable Fire Extinguishers, NFPA 10A-1970." Administrative Law Judge John A. Carlson vacated the citation, holding that the pertinent NFPA 10A-1970 provisions are advisory rather than mandatory.

Commissioner Cleary granted the Secretary's petition and directed review on whether the judge erred in reading the incorporated NFPA provisions as recommending rather than requiring inspection and maintenance. On review the Secretary argued that adopting § 1926.150(c)(1)(viii) made the previously advisory NFPA provisions mandatory. Neither party had raised the advisory question before the judge.

The Commission affirms the judge for the reasons he gave, citing Brown & Root, Power Plant Division and the cases collected there. It adds a pointed reservation: § 1926.150(a)(4), a general fire protection requirement, says that all firefighting equipment "shall be periodically inspected and maintained in operating condition," but because the parties did not argue it, the Commission does not decide whether that provision independently requires periodic inspection of fire extinguishers.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.150(c)(1)(viii) (periodic inspection
  and maintenance of portable fire extinguishers).
• Outcome: Judge Carlson's vacatur affirmed; the citation remains vacated.
• Key point: Advisory language inside a consensus document does not become
  mandatory merely because a standard incorporates that document by reference. The Commission expressly left open whether § 1926.150(a)(4) imposes an independent inspection duty.

Full text (OSHRC public release)

Docket No. 77-207

MEL JARVIS CONSTRUCTION COMPANY, INC.

OSHRC Docket No. 77-207

Occupational Safety and Health Review Commission

July 20, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

John W. Mize, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John A. Carlson is before the Commission pursuant to section 12(j), 29 U.S.C.

661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C.

651-678 ("the Act").

Judge Carlson vacated a citation issued by the Secretary of Labor ("the Secretary") alleging that Mel Jarvis Construction Company, Inc. ("Mel Jarvis"), did not periodically inspect two portable fire extinguishers and thereby failed to comply with the standard at 29 C.F.R.

1926.150(c)(1)(viii) n1. The judge concluded that the pertinent provisions of NFPA 10A-1970, to which section 1926.150(c)(1)(viii) refers, are advisory rather than mandatory.

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n1 29 C.F.R.

1926.150(c)(1)(viii) provides:

1926.150 Fire protection.

(c) Portable firefighting equipment -- (1) Fire extinguishers and small hose lines.

(viii) Portable fire extinguishers shall be inspected periodically and maintained in accordance with Maintenance and Use of Portable Fire Extinguishers, NFPA 10A-1970.

[*2]

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The Secretary filed a petition for discretionary review which was granted by Commissioner Cleary.

Commissioner Cleary directed review on the following question:

Whether the Administrative Law Judge erred in vacating the citation alleging a failure to comply with the standard at 29 CFR

1926.150(c)(1)(viii) for the stated reason that the NFPA standards incorporated by the cited standard merely recommend rather than require inspection and maintenance of fire extinguishers.

We have reviewed the record and have considered the parties' arguments. n2 We conclude that Judge Carlson properly decided the case for the reasons assigned in his decision and order.

See Brown & Root, Inc., Power Plant Division, 80 OSAHRC    , 9 BNA OSHC 1027, 1980 CCH OSHD P24,958 (No. 76-2938, 1980), and cases cited therein. n3 Accordingly, the judge's decision is affirmed.

SO ORDERED.

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n2 The parties did not present to the judge any arguments about the advisory nature of

1926.150(c)(1)(viii).

On review, Mel Jarvis relies on Judge Carlson's decision and the Secretary argues that his adoption of

1926.150(c)(1)(viii) rendered mandatory the previously advisory provisions of NFPA 10A-1970.

n3 We note, however, that

1926.150(a)(4), a general requirement for fire protection, provides that "[a]ll firefighting equipment shall be periodically inspected and maintained in operating condition." The parties have not argued, and we do not decide, whether this provision constitutes a mandatory requirement independent of

1926.150(c)(1)(viii) for the periodic inspection of fire extinguishers.

[*3]

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