
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").                                         -3-                                          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                                         -5-                                          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                                         ______ __  __________ __ ____ __                                            ____________________                                                     -10-                                          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.                                         -12-                                          12
