                United States Court of Appeals
                    For the First Circuit
                                         

No. 92-2237

             ROBERT B. REICH, SECRETARY OF LABOR,

                         Petitioner,

                              v.

               SIMPSON, GUMPERTZ &amp; 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 &amp; Levinson,
                                                                 
were on brief for respondents.
Mark A. Casso, Arthur E. Schwartz,  Elizabeth A. Davis, Robert  C.
                                                                  
Gombar, Arthur G. Sapper, and McDermott, Will &amp; 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 &amp; Heger, Inc. ("SGH").  We affirm.

                              I.
                                

                      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 &amp;  Contracting
                                                             

Co. v. Occupational Safety &amp; 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 &amp; 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.
                                

                      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 &amp; 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

                             -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-
          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.
                                 

                          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 &amp;  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
