Brooks v. McWhirter Grading Co., Inc., 119

Decision Date17 August 1981
Docket NumberNo. 119,119
Citation281 S.E.2d 24,303 N.C. 573
CourtNorth Carolina Supreme Court
Parties, 1981 O.S.H.D. (CCH) P 25,776 John C. BROOKS, Commissioner of Labor of North Carolina v. McWHIRTER GRADING COMPANY, INC.

Ervin, Kornfield & MacNeill by John C. MacNeill, Jr. and Winfred R. Ervin, Jr., Charlotte, for appellant-respondent.

CARLTON, Justice.

I.

The facts leading to this controversy are as follows: On 21 April 1977 James W. Stephens, a safety officer with the Occupational Safety and Health Division of the North Carolina Department of Labor (hereinafter "OSHANC"), made an inspection visit to respondent's work site at a shopping center on Tyvola Road in Charlotte. At the time of Mr. Stephens' visit respondent's foreman, Mr. Leatherman, and two other Respondent's employees had dug about 1,000 feet of storm sewer trenching at the Tyvola Road jobsite and all trenches except the forty-five-foot section had been properly sloped. The engineering survey for the project stated that the soil at the jobsite was red clay earth at ninety-five to ninety-seven percent compaction. Mr. Leatherman, the foreman, himself decided not to slope the forty-five-foot trench because the ground was so hard. At the time of Mr. Stephens' visit respondent's employees had been working on the trench for about two hours, and no supervisory personnel had visited the site that day. The storm sewer pipe was thirty inches in diameter and was laid in the trench by a machine. Mr. Leatherman testified that only five or six feet of the trench was as much as eight feet deep and that a four-foot length of the trench was used for steps. Even though Mr. Stephens thought the violation was serious, he asked one of respondent's employees to get down into the trench to help him measure it.

employees were working on a storm sewer trench. The entire trench was about forty-five feet long, but only ten to twelve feet of the trench remained open. The trench had been dug in ten- to twelve-foot segments. After a segment was dug with a backhoe, steps which took up about four feet were placed in the trench and an employee entered the trench to grade it. The eight-foot sections of pipe were laid by a machine and were then covered. The trench was about eight feet deep, and the sides had neither been shored nor sloped, a violation of 29 CFR § 1926.652(c), 1 which provides that trenches dug in hard or compact soil more than eight feet long and five feet deep must be adequately shored or sloped.

Respondent's vice president, Michael Warr, is its chief estimator. As such, he goes over each site before work starts and advises the foremen or supervisors of the safety regulations that must be followed. With regard to the Tyvola Road site, he told Mr. Leatherman to slope or brace each trench over five feet deep. Neither he nor other management personnel had visited the jobsite on 21 April 1977 and none was aware of Mr. Leatherman's decision not to slope the sides of the forty-five-foot trench.

On 18 November 1974 one of respondent's employees was killed when the trench in which he was working caved in. The accident occurred at a jobsite different from the one where the 1977 violation occurred. At the time of the 1974 violation respondent was constructing a sewer line about 29,000 feet long and 141/2 feet deep. The trench was being dug in unstable soil and was adjacent to a highway. To support the sides of the trench respondent used speed-shoring, aluminum panels seven feet long held in place by hydraulic jacks placed one and one-half feet from the top and bottom of the trench. The cave-in occurred while respondent's employees were installing the next piece of speed shoring about four feet from the last piece. As a result of the accident respondent was cited for a "serious" violation of 29 CFR § 1926.652(b) for failure to shore, slope, sheet and brace properly the sides of a trench in unstable soil and for a violation of 29 CFR § 1926.652(e) for failure to use additional shoring when the trench is dug adjacent to a highway. Respondent did not contest the citation and paid the $500 fine.

Respondent has received no citations except for the 1977 and 1974 violations. After the 1974 fatality an OSHA inspector reviewed the trenching safety requirements with respondent's management personnel. Both the management personnel and the job foreman of the Tyvola Road site at which the 1977 violation occurred were aware of the OSHA requirements governing trenching at the time of Mr. Stephens' 1977 inspection visit.

Mr. Stephens determined that respondent had violated 29 CFR § 1926.652(c) (1980) which requires shoring or sloping the sides of a trench dug in compact soil and which is more than five feet deep and eight feet long. Mr. Stephens recommended that respondent On 18 May 1977 respondent filed its notice of contest with the North Carolina Department of Labor and on 20 May 1977 the Department of Labor filed the notice of contest with the North Carolina Safety and Health Review Board (hereinafter "Board"). Pleadings were filed and the matter came on for hearing before Fred S. Hutchins, Jr., Hearing Examiner, on 18 August 1977. The hearing examiner agreed with the Commissioner that respondent had violated 29 CFR § 1926.652(c) but concluded that the violation was neither "serious" nor "repeated" and, accordingly, struck the proposed $1,800 penalty in its entirety. Hearing Examiner Hutchins reasoned that the violation was not repeated because it was not of the same substandard of the OSHA regulations as the earlier violations and that it was not serious because respondent's foreman made the decision not to slope the sides of the trench on his own and without the knowledge or approval of the management and because in the event a cave-in occurred there was not a substantial probability that death or serious physical harm could result "because three men and a backhoe should be able to uncover a man very, very rapidly."

be cited for a serious violation of 29 CFR § 1926.652(c) and that it be fined $500. On 28 April 1977, as a result of Mr. Stephens' visit and recommendation, respondent was issued a citation for a "serious" and "repeated" violation carrying a proposed penalty of $1,800.

The Commissioner petitioned the Board on 26 September 1977 for review of the hearing examiner's decision. 2 After hearing evidence and considering the arguments of counsel the Board concluded that "the Hearing Examiner's order should be overturned, and the citation reinstated along with the penalty" for both a "serious" and a "repeated" violation and ordered that respondent be assessed a penalty of $2,500.

Pursuant to G.S. 95-141 respondent sought judicial review of the Board's decision before the Superior Court, Wake County. Arguments and briefs were considered by Judge Hobgood, who affirmed the Board's decision in its entirety on 12 October 1979. Respondent gave notice of appeal to the Court of Appeals.

The Court of Appeals, in an opinion written by Judge Wells, with Judges Arnold and Erwin concurring, held that (1) G.S. 95-135(i) does not require that the Board make new findings of fact and conclusions of law separate from those contained in the order of the hearing examiner, (2) the decision of the Board acceptably served to modify the order of the hearing examiner to conclude that the cited violation was "repeated" and "serious," justifying the additional penalty assessed, (3) there was sufficient evidence to support the Board's conclusion that the cited violation was "repeated" and "serious," (4) the acts and omissions of respondent's job superintendent were, on this occasion, imputable to it, and (5) "(c)onsidering the whole record before the Superior Court ..., the trial court was justified in affirming the decision of the Review Board ...."

After the applicable time period for petitioning this Court for discretionary review pursuant to G.S. 7A-31(a) had elapsed, respondent petitioned for a writ of certiorari. We granted the writ on 4 March 1981.

II.
A. SCOPE OF JUDICIAL REVIEW

This Court is once again confronted with an appeal from a decision of a state administrative agency in which none of the parties suggests in brief the applicable scope of judicial review, nor does the Court of Appeals' opinion identify an appropriate standard. See In re Appeal of North Carolina Savings & Loan League, 302 N.C. 458, 276 S.E.2d 404 (1981); State ex rel. Utilities Commission v. Bird Oil Company, 302 N.C. This is a serious omission. In presenting appeals to the judicial branch from state administrative agencies, it is essential that the parties present their contentions as to the applicable scope of judicial review. Likewise, the reviewing court should make clear the review standard under which it proceeds. The proliferation of appeals from state administrative agencies during recent years requires an orderly appellate process. Such order is totally lacking when one body must guess the scope of review provided by another and when the parties fail to structure their arguments on appeal according to the relevant standard.

14, 273 S.E.2d 232 (1981). This continuing deficiency in the presentation for judicial review of the parties' contentions about the decision of an administrative agency is alarming and must be abated. We remind the lower courts, state administrative agencies and the profession of our comments in Bird Oil :

302 N.C. at 19, 273 S.E.2d 232 at 235.

We therefore turn to a determination of the appropriate scope of judicial review of an order of the OSHANC Safety and Health Review Board. We discussed the guidelines for determining the appropriate scope of judicial review for appeals from state administrative agencies in Commissioner of Insurance v. Rate Bureau, 300 N.C. 381, 394, 269 S.E.2d 547, 558 (1980). There, we noted that G.S. 150A-43, a part of the North Carolina...

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