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Underhill Construction Corp. v. Secretary of Labor and Occupational Safety and Health Review Commission

decided: November 24, 1975.

UNDERHILL CONSTRUCTION CORPORATION, PETITIONER,
v.
SECRETARY OF LABOR AND OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, RESPONDENTS



Petition by Underhill Construction Corporation to review a final order of the respondent Occupational Safety and Health Review Commission which order affirmed the Secretary of Labor's citation of the petitioner for a violation of occupational safety and health standards under the Occupational Safety and Health Act of 1970. Petition for review denied.

Waterman, Oakes and Meskill, Circuit Judges.

Author: Meskill

MESKILL, Circuit Judge:

Underhill Construction Corporation ("Underhill") petitions this Court for review, pursuant to 29 U.S.C. § 660(a), of a final order, dated January 31, 1975, of the Occupational Safety and Health Review Commission ("Commission"). That order sustained the respondent Secretary of Labor's ("Secretary") citation of the petitioner for a "serious" violation of Section 5 (a)(2) of the Occupational Safety and Health Act of 1970 ("OSHA"), 29 U.S.C. § 654 (a)(2). An administrative law judge had initially held that the citation was invalid because the occupational safety and health standards, which were initially promulgated by the Secretary under the Construction Safety Act of 1969 ("CSA"), 40 U.S.C. § 327 et seq.,*fn1 and which were alleged to have been violated here, were not applicable to construction projects negotiated prior to April 27, 1971. The Commission reversed the administrative law judge and held that when the Secretary adopted the CSA standards as occupational safety and health standards under OSHA, he discarded the exemption of construction projects negotiated prior to April 27, 1971. We agree with the Commission's conclusion and deny the petition for review.

Because this petition involves solely an interpretation of the applicable statutes and regulations, only a brief recitation of the underlying facts and procedural background of the matter is necessary in order to grasp the problem.*fn2

Underhill was a concrete subcontractor engaged in the construction of a major, federally assisted apartment complex in New York City. Underhill's subcontract had been entered into on October 1, 1970. The prime contractor, HRH Construction Corp., had entered into its contract with the owner of the proposed complex, Waterside Redevelopment Co., Inc., on December 30, 1970.

On June 14, 1972, an OSHA Compliance Officer, during a routine inspection of the construction site, discovered numerous Underhill employees engaged in the process of stripping concrete forms at the edges of floors eighteen through twenty of a building under construction there. There were no guard rails around the perimeters of the floors, nor were any other means used to protect Underhill's employees against falls.

As a result of the June inspection, the Secretary, on July 18, 1972, issued a citation to Underhill for a "serious" violation of OSHA § 5(a)(2), 29 U.S.C. § 654(a)(2), for permitting its employees to work on open-sided floors of the construction site more than six feet above the ground without the appropriate protection against falling from those floors. The particular safety standard violated is codified in 29 C.F.R. § 1926.500(d)(1). Underhill agrees that if 29 C.F.R. § 1926.500(d)(1) applied to its construction site on June 14, 1972, its failure to provide satisfactory guard rails or other appropriate protection against falls was a violation of OSHA Section 5(a)(2).*fn3

Underhill's contention now is that when the Secretary of Labor adopted as part of OSHA the safety and health standards which he had previously promulgated for CSA, he also adopted the effective dates of the CSA standards. Our analysis of that contention begins with the enactment of CSA and the Secretary's promulgation of safety and health standards thereunder.

Section 107(a) of CSA, 40 U.S.C. § 333(a), directs that "it shall be a condition of each contract which is entered into [with the federal government or which is federally assisted] . . . for construction . . ., that no contractor or subcontractor contracting for any part of the contract work shall require any laborer or mechanic employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards promulgated by the Secretary by regulation . . . ."

The regulations which that section of CSA contemplated were promulgated on April 17, 1971. 36 Fed. Reg. 7340, 29 C.F.R. Part 1518 (now 29 C.F.R. Part 1926).*fn4 Part 1926 of Title 29 of the Code of Federal Regulations, the part now containing the CSA safety and health regulations, is divided into subparts designated "A" through "X".*fn5 The original section 1518.1050 of Part 1518 (now 29 C.F.R. § 1926.1050) provided that the standards would apply only to contracts "for which negotiations are commenced on or after 10 days following [the standards'] publication. . . ." 36 Fed. Reg. 7410.*fn6

Eleven days after the publication of the CSA regulations, OSHA became effective, Pub. L. No. 91-596, § 34. Section 3(5) of OSHA, 29 U.S.C. § 652(5), defines the scope of that Act by defining an "employer" as a "person [including corporations, see OSHA § 3(4), 29 U.S.C. § 652(4)] engaged in a business affecting commerce who has employees . . . ." It further requires, in § 5(a)(2), 29 U.S.C. § 654(a)(2), that each employer "shall comply with occupational safety and health standards promulgated under this Act." OSHA also directed the Secretary, as soon as practicable after the effective date of the Act, to "promulgate as an occupational safety or health standard . . . any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health." OSHA § 6(a), 29 U.S.C. § 655(a). That section of the Act further authorized the Secretary to adopt such "established Federal standards" without compliance with the rulemaking provisions of the Administrative Procedure Act. An "established Federal standard" was defined in OSHA § 3(10), 29 U.S.C. § 652(10) as "any operative occupational safety and health standard established by any agency of the United States and presently in effect," while an "occupational safety and health standard" was further defined in OSHA § 3(8), 29 U.S.C. § 652(8), as "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."

Consequently, on May 29, 1971, the Secretary declared the standards previously promulgated under CSA to be "established Federal standards" and promulgated them under OSHA, with a general effective date of August 27, 1971. 36 Fed. Reg. 10466-69.*fn7 Subsequently, on February 17, 1972, in an attempt to clarify which of the CSA regulations had been adopted under OSHA by the May 29, 1971 promulgation, the Secretary added a new paragraph to the OSHA regulations entitled "Construction Safety Act distinguished." 37 Fed. Reg. 3513.*fn8 The new regulation noted specifically that Subparts A and B of the CSA regulations were not adopted under OSHA, but that the "standards," also referred to as "substantive rules," contained in "Subpart C and the following subparts [subparts D through X]" of the CSA regulations were adopted. The Secretary's publication of that new regulation indicated his intent to adopt only the CSA substantive rules and to discard under OSHA the CSA provisions which were important only to CSA because of the contractual basis of that earlier act.

Finally, on December 7, 1972, after Underhill's citation had been issued in the instant case, the Secretary published a further clarifying regulation with respect to the incorporation by reference of the CSA standards under OSHA. 37 Fed. Reg. 26008.*fn9 In that publication, the Secretary re-emphasized that he had not adopted under OSHA any of ...


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