Reich, SOL v. Simpson, Gumpertz

• Court: Court of Appeals for the First Circuit
• Decided: August 20, 1993
• Docket: 92-2237
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 92-2237

                         ROBERT B. REICH, SECRETARY OF LABOR,

                                     Petitioner,

                                          v.

                           SIMPSON, GUMPERTZ & HEGER, INC.,
                AND OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

                                     Respondents.

                                 ____________________

ON PETITION FOR REVIEW OF A DECISION OF THE
                   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Selya and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            Bruce Justh,  with whom Marshall  J. Breger,  Solicitor of  Labor,
            ___________             ___________________
        Judith E. Kramer, Deputy  Solicitor of Labor, and Joseph  M. Woodward,
        ________________                                  ___________________
        Associate Solicitor for Occupational Safety and Health,  were on brief
        for petitioner.
            David J.  Hatem, with whom  Maura A. Greene and  Burns & Levinson,
            _______________             _______________      ________________
        were on brief for respondents.
            Mark A. Casso, Arthur E. Schwartz,  Elizabeth A. Davis, Robert  C.
            _____________  __________________   __________________  __________
        Gombar, Arthur G. Sapper, and McDermott, Will & Emery on brief for The
        ______  ________________      _______________________
        American  Consulting  Engineers  Council,  The  National   Society  of
        Professional  Engineers, and  The  American  Institute of  Architects,
        amici curiae.

                                 ____________________
                                   August 20, 1993
                                 ____________________

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 judgment1 in favor of appellee

            Simpson, Gumpertz & Heger, Inc. ("SGH").  We affirm.

                                          I.
                                          I.
                                          __

                                  Standard of Review
                                  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.   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.   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, 
               __________________________________________

             ,  111 S. Ct. 1171, 1175 (1991)  (quoting Lyng v. Payne, 476
            _                                          ____    _____

            U.S. 926, 939 (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

____________________

            1.  The  Commission's  Rules   of  Procedure  incorporate  by
            reference  Fed. R.  Civ.  P. 56.    See 29  C.F.R.    2200.61
                                                ___
            (1992).

                                         -2-
                                          2

regulation[]  . . . .  '"  Id. at       , 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 (1975)).  In contrast, no  deference is
            ____

            warranted  where the agency's  interpretation is inconsistent

            with the wording  of the regulation.  Id. at     , 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.
                                         II.
                                         ___

                                  Factual Background
                                  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").

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                                          3

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

____________________

            2.  With  the exception  of  a few  provisions  added by  the
            parties, SGH's contract  with Payette  consisted entirely  of
            the standard form language  contained in a document published
            by  the American  Institute  of Architects.   SGH's  contract
            specified, inter alia,  that SGH would not be responsible for
                       _____ ____
            the  "construction means,  methods, techniques,  sequences or
            procedures, for safety precautions and programs in connection
            with the [w]ork . . . ."  Rather, the  contract assigns those
            duties to  the general  contractor:  "The  [c]ontractor shall
            supervise and  direct the  [w]ork, using  his best  skill and
            attention.     He  shall   be  solely  responsible   for  all
            construction  means,  methods,   techniques,  sequences   and
            procedures and  for coordinating  all portions of  the [w]ork
            under the [c]ontract."

                                         -4-
                                          4

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

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                                          5

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.     1926.703(a)(1),4  for failure  to

____________________

            3.  The   record  reveals  that  SGH  employees  visited  the
            construction site on a  periodic basis to conduct inspections
            and attend meetings.

            4.  29 C.F.R.   1926.703(a)(1) provides:

1926.703    Requirements for  cast-in-
                         1926.703    Requirements for  cast-in-
                      place concrete.
                      place concrete.

                      (a) General requirements for formwork.

                      (1)    Formwork   shall    be   designed,
                      fabricated,  erected,  supported,  braced
                      and maintained so that it will be capable
                      of   supporting   without   failure   all
                      vertical  and lateral  loads that  may be
                      reasonably anticipated to  be applied  to
                      the   formwork.      Formwork  which   is
                      designed, fabricated, erected, supported,
                      braced and maintained in conformance with

                                         -6-
                                          6

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.
                                         III.
                                         ____

                                      Discussion
                                      Discussion
                                      __________

                       Congress  enacted  the  Occupational   Safety  and

            Health Act of 1970, 29 U.S.C.    651-678 ("OSHA"), to "assure

            so far as possible every working man and  woman in the Nation

____________________

                      the  Appendix  to  this  section  will be
                      deemed to meet  the requirements of  this
                      paragraph.

                 The Secretary also issued a citation  to SGH pursuant to
            29  C.F.R.   1926.703(a)(2) for failure to have the plans for
            formwork, including all revisions, available at the  jobsite.
            The Secretary has, however, withdrawn this citation. 

                                         -7-
                                          7

safe  and healthful  working conditions  and to  preserve our

            human resources[.]"  29 U.S.C.    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.   

            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.   
                                                        ___

            654(a)(2).6  

                      The Secretary has  promulgated occupational  safety

            and health  standards, otherwise  known as  "general industry

____________________

            5.  As defined in  29 U.S.C.    652(5), an  "employer" is  "a
            person  engaged  in a  business  affecting  commerce who  has
            employees . . . ."

            6.  29 U.S.C.   654(a)(2) provides that "[e]ach employer  . .
            . shall comply with  occupational safety and health standards
            promulgated under this chapter."  

                                         -8-
                                          8

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.   652(10), are borrowed
                                    ___

            from previously enacted federal statutes and regulations.  29

            C.F.R.   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.   333.  See 29  C.F.R. Part 1926 (1992).  29  C.F.R.  
                           ___

            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
                      complying with  the appropriate standards
                      prescribed in this paragraph.

                      In the proceedings below, the parties characterized

            the dispositive issue in the  case as whether SGH's employees

            were  engaged  in  "construction  work"  as  defined  by  the

            regulation.7   Relying  upon previous  Commission  precedent,

____________________

            7.  The phrase  "construction work"  is defined as  "work for
            construction, alteration, and/or  repair, including  painting
            and decorating."  29 C.F.R.   1910.12(b).  

                                         -9-
                                          9

see Skidmore, Owings &  Merrill, 5 BNA OSHC 1762  (1977), the
            ___ ___________________________

            Commission held that design professionals could only be found

            liable  under Part  1926  to the  extent  that they  exercise

            "substantial  supervision"  over  the "actual  construction."

            The Commission found that SGH's  actions could not, even when

            viewed in a light most favorable to the Secretary, constitute

            "substantial supervision."   It therefore affirmed  the ALJ's

            decision to grant SGH's motion for summary judgment.

                      After carefully reviewing the record, we agree that

            SGH was entitled to  summary judgment.  However, we  base our

            conclusion on grounds different than those relied upon below.

            See Resare v. Raytheon Co., 981 F.2d 32, 44-45 n.30 (1st Cir.
            ___ ______    ____________

            1992)  (noting that we are free to affirm decision below "`on

            any ground supported in the record  even if the issue was not

            pleaded, tried  or otherwise  referred to in  the proceedings

            below'") (quoting  Chamberlin v.  101 Realty, Inc.,  915 F.2d
                               __________     ________________

            777, 783 n.8 (1st Cir. 1990)).

                      The Secretary  maintains  that  SGH  can  be  found

            liable under Part 1926 even though it had no employees at the
                                                      __

            construction  site.   In  light of  the  plain meaning  of 29

            C.F.R.      1910.12(a),  we   find  such   an  interpretation

            unreasonable.  

                      Section  1910.12(a)  requires  "each  employer"  to

            "protect  the employment and places of  employment of each of
                                         ______ __  __________ __ ____ __

____________________

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                                          10

his employees  . . .  ."  (emphasis added).   The dispositive
            ___ _________

            question, in our opinion, is whether the construction site at

            WPI was a "place[] of employment"  which SGH had a duty under

            OSHA  to protect.  The record reveals that SGH employees were

            not on the jobsite on a daily or even weekly basis.   SGH did

            not have an office or a trailer at the site.  On the  date of

            the  accident, there were no  SGH employees on  the site, and

            when the conversation took  place between Kelley and Mitchell

            on  that morning,  Kelley  was at  his  office in  Arlington,

            Massachusetts.   Under these  circumstances, we do  not think

            that the WPI  construction site is a "place[]  of employment"

            which SGH had a duty under OSHA to protect.8 

                      In  our  opinion,   adoption  of  the   Secretary's

            interpretation would expand the meaning of the phrase "places

            of  employment"  beyond  any  reasonable   boundaries.    For

            example,   suppose  that  a  construction  equipment  leasing

            company sends an employee  to the site to inspect  or perform

            maintenance upon  a piece of  its leased equipment,  and that

            the  employee  gives gratuitous  advice  to the  user  of the

            equipment which allegedly causes  an on-site accident.  Under

            the Secretary's interpretation, the  leasing company could be

____________________

            8.  We should make perfectly  clear that SGH might well  have
            breached some other legal duty in assuring Harvey's crew that
            it was safe to pour the concrete.  We express no view on this
            point.   Our  holding, rather, is  a narrow  one:   that OSHA
            regulation 29  C.F.R.    1910.12(a), did not  require SGH  to
            maintain a safe construction site at WPI.

                                         -11-
                                          11

liable under an  OSHA provision directing  that it provide  a

            safe  working environment for its own employees.  Simply put,
                                          ___ ___

            we cannot, given the plain language of the regulation and the

            dictates
                   ofcommonsense,acceptsuchanexpansivenotionofliability.9

                      Finally, we  have not found, nor  has the Secretary

            cited, any cases supporting the Secretary's interpretation of

            the phrase  "places of  employment."   Indeed, in every  case

            cited  by the Secretary,  the employer  had employees  at the

            actual  construction site.   Providing  as much  deference as

            possible to  the Secretary's interpretation, we  still do not

            see how one could reasonably read the Department's regulation

            as  he has done.  If the Secretary believes broader liability

            is  appropriate,   the  solution  is  simply   to  amend  the

            regulation so  that it  includes places where  the employer's

            own employees have never  worked--assuming, of course, he has

            the authority  to do  so under  OSHA (a  matter  on which  we

            express  no  view).  It  is not  to  ignore  the regulation's

            present,  more  restrictive,   language.    The  Commission's

            decision is affirmed.
                        affirmed
                        ________

____________________

            9.  We  also note that  the Secretary's  interpretation might
            have the perverse result of causing an employer to discourage
            his/her employees from making on-site safety inspections  for
            fear of being subjected to OSHA liability.

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