General Electric Company petitioned for review of an order of the Occupational Safety and Health Review Commission requiring the installation of a railing around the top of an oven in its Schenectady, New York, plant. The petition was made pursuant to § 11(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(a). The Court of Appeals granted the petition, vacated the Commission's order, and set aside the citation upon which it was based.
Before Friendly, Gurfein and Meskill, Circuit Judges.
General Electric Company asks us to set aside a May 19, 1977, order of the Occupational Safety and Health Review Commission requiring the installation of a standard railing around the top of an oven in its Schenectady, New York, plant. The petition for review is made pursuant to § 11(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(a). We grant the petition, vacate the Commission's order, and set aside the citation upon which it is based.
General Electric is a New York corporation which employs more than 27,000 workers at its Schenectady plant. In October of 1974, an OSHA compliance officer inspected that portion of the Schenectady worksite known as the Small AC Motor Department. The next month, the Secretary of Labor issued eighteen citations for alleged violations of § 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(2). These citations were contested by General Electric, and the matter was heard by Administrative Law Judge James Cronin, Jr., during March and April of 1975. Eventually, all but four of the citations were settled by the parties, and ALJ Cronin approved the settlement. One of the four unsettled citations forms the basis for this appeal.
Nestled among the various machinery of Building 81, Bay C18, of the Small AC Motor Department sits a "dip and bake" oven. Its purpose is to bake insulation onto small motors at certain stages of the manufacturing process. Although the record does not include a photograph of the oven, it is described as being approximately 10'8 tall with an L-shaped top; it is 20 feet long and 12 feet wide. On top of the oven are two circulation and exhaust motors which require occasional maintenance.*fn1 In order to reach the motors to perform this maintenance, a worker climbs a ladder permanently affixed to the side of the oven by its manufacturer. Once aloft, the worker walks along a six-foot section of non-skid grating, the length of which is guarded by a railing and toeboard.*fn2 One of the motors is adjacent to this railing, and when maintenance is being performed on it the worker stands approximately one foot from the edge of the oven top. The other motor is ten to fourteen feet from the end of the railing, but when this motor is being worked on the employee is almost four feet from the edge of the oven top.
The issue on this appeal is whether the unguarded portion of the top of the oven is a "platform" within the meaning of regulations promulgated by the Secretary of Labor. The OSHA inspection officer, the Administrative Law Judge, and the Commission each believed that it was and, accordingly, determined that General Electric had violated the Act by failing to guard the perimeter of the oven top with a "standard railing." We disagree.
The purpose of the Occupational Safety and Health Act 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). Section 5(a)(2) of the Act, the so-called "specific duty" clause, requires each employer to "comply with occupational safety and health standards promulgated under this chapter." 29 U.S.C. § 654(a)(2).*fn3 The standard concerning "Protection of open-sided floors, platforms, and runways" provides as follows:
Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides,
(ii) There is moving machinery, or
(iii) There is equipment with which falling materials could create a hazard.
29 C.F.R. § 1910.23(c)(1).*fn4 "Platform" is defined as:
A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the ...