Petition for Review of an Order of the Occupational Safety and Health Review Commission (OSHRC Nos. 77-705 and 77-2526)
Before Seitz, Chief Judge, Aldisert, Circuit Judge, and Huyett, District Judge.*fn*
The major questions for decision in this petition for review of a final order of the Occupational Safety and Health Review Commission under 29 U.S.C. § 660(a) require us to decide whether the commission correctly determined the applicability of maritime standards, as well as general industry standards, to the structural shop of Dravo's Engineering Works Division, Neville Island, Pittsburgh, Pennsylvania. The administrative law judge determined that maritime standards were appropriate because the majority of the work performed in the structural shop involved the forming, welding and fitting of vessel components and was therefore "related" to "shipbuilding" as those terms are defined in Safety and Health Regulations for Shipbuilding, 29 C.F.R. § 1916.2 (1978). He issued a decision and order which also affirmed in relevant part citations issued by OSHA compliance officers, seven items of which form a separate basis of this petition for review. Dravo petitioned the commission for discretionary review of the report of the ALJ, but when no commissioner directed review, the ALJ's order became the final order of the commission by operation of law. 29 U.S.C. § 661(i). Dravo's petition to this court followed. We hold that the OSHA shipbuilding regulations do not, by their express terms, apply to a structural shop such as Dravo's. Because we are not inclined to expand the scope of the regulations beyond that expressed by the Secretary, we will grant the petition for review and set aside that part of the commission's order holding Dravo's structural shop to be subject to shipbuilding standards.
The Engineering Works Division of Dravo Corporation is engaged in the year-round manufacture of heavy equipment including barges and towboats, raw material processing machinery, material handling equipment and major components for dams, locks and power plants. The division is on a sixty-eight acre worksite on Neville Island in the Ohio River, about six miles from Pittsburgh. Plant facilities include a 1,800 foot-long waterfront on the Ohio River, a barge shop where vessels are assembled at a rate of over three per week, trade shops where vessels are outfitted, and the structural shop.
Dravo's structural shop is a general fabrication shop in which metal plates are formed, sized, and welded. The operations of the structural shop, as in any general industry fabrication shop, include processes by which metal is formed with the use of press brakes, shears, angle rolls, punch and coping machines, burning machines and welders. These plates are used in the assembly of all of Dravo's major products. Those that are to become parts of vessels are carried by railroad car from the shop on the southern side of the island across the public road that bisects the island and the plant to the boat yard area on the northern side of the island where the vessels are assembled and eventually launched. At least one barge has been assembled in the structural shop. App. at 224a-26a. Faced with this evidence, including testimony that in 1977, "51 percent of the work in the Structural Shop was marine related, that is, the product went into a boat or a barge," while "(t)he balance of the work involved material handling machinery (27%), pelletizing machines, gait hoists (20%) and spare parts (remaining per cent)," App. at 225a, 1034a-35a, the ALJ determined that maritime standards applied to activities in that shop.
The test adopted by the ALJ appears to be that if the major part of the work in a shop at a given time is "shipbuilding" by definition of OSHA regulation 29 C.F.R. § 1916.2(i), that is, "the construction of a vessel, including the installation of machinery and equipment," then the shipbuilding safety standards will apply. In announcing this formula he rejected the approach taken in another proceeding involving Dravo Corporation at OSHRC Docket No. 14818. Dravo Corp., (1976-77) OSH Dec. (CCH) P 20,787 (1976). There, in determining the appropriate standards for Dravo's pipe shop, the ALJ concluded that even though ninety per cent of the pipe shop's production was incorporated into vessels, shipbuilding standards should not apply. Relying on a Fourth Circuit decision subsequently overturned by the Supreme Court, he determined that the applicability of those standards should be limited to shipbuilding and related activities between the ship and the last "point of rest" of equipment. Dravo has thus been confronted in separate OSHRC proceedings with divergent formulations for determining what areas are to be held to shipbuilding safety standards under OSHA.
The central purpose of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 Et seq., is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . ." 29 U.S.C. § 651(b). The Act authorizes the Secretary of Labor "to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce," and created the Occupational Safety and Health Review Commission "for carrying out adjudicatory functions (of the Act)." 29 U.S.C. § 651(b)(3). Each statutory employer is placed under a duty to comply with the promulgated standards. 29 U.S.C. § 654(a)(2). Normally, the Secretary's standard-setting authority is to be exercised as the product of notice and comment rule-making. 29 U.S.C. § 655(b). Within the first two years after the effective date of the Act, however, because of concern that the Act be implemented as soon as possible, Congress authorized the Secretary to "promulgate as an occupational safety or health standard . . . any established Federal standard," without regard to the rule-making provisions. 29 U.S.C. § 655(a).
The term "established Federal standard" is defined as "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 December 29, 1970." 29 U.S.C. § 652(10). The Secretary had promulgated safety standards for shipbuilding prior to 1970 under the mandate of § 41 of the Longshoremen and Harbor Workers Compensation Act.*fn1 These regulations were formerly to be found at 29 C.F.R. § 1502 (1971). Pursuant to his authority under 29 U.S.C. § 655(a), the Secretary promulgated regulation 29 C.F.R. § 1910.14, entitled "Shipbuilding," which provides in relevant part:
(a) Adoption and extension of established safety and health standards for shipbuilding. The standards prescribed by Part 1502 of this title and in effect on April 28, 1971, are adopted as occupational safety or health standards under section 6(a) of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in shipbuilding or a related employment. Each employer shall protect the employment and places of employment of each of his employees engaged in shipbuilding or a related employment, by complying with the appropriate standards prescribed by this paragraph.
Thus, the OSHA shipbuilding regulations had their genesis in the LHWCA. The courts have recognized these safety regulations as part of the federal schema both to provide compensation under LHWCA to injured harbor workers in the event of an industrial accident and to prevent accidents involving harbor workers in the course of their maritime activities. Arthur v. Flota Mercante Gran Centro Americana S. A., 487 F.2d 561, 564 (5th Cir. 1973); Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011, 1036 (5th Cir. 1969), Cert. dismissed, 396 U.S. 1033, 90 S. Ct. 612, 24 L. Ed. 2d 531 (1970). Indeed, before the maritime standards were adopted by OSHA, a violation of the safety regulations constituted negligence per se in actions by injured longshoremen against shipowners. Arthur v. Flota Mercante Gran Centro Americana S. A., 487 F.2d at 564; Marshall v. Isthmian Lines, Inc., 334 F.2d 131, 134 (5th Cir. 1964).*fn2
The Secretary has also recognized the relationship between the two statutes. Shipbuilding regulation § 1916.1 provides in part that each employer involved in shipbuilding activity shall subscribe to the requirements of § 41 of LHWCA, 33 U.S.C. § 941(a), by furnishing and maintaining employment and places of employment which are reasonably safe for his employees in all employments covered by the statute. The disposition of this ...