National Rlty. & C. Co., Inc. v. OCCUPATIONAL S. & HR COM'N
Decision Date | 13 December 1973 |
Docket Number | No. 72-1978.,72-1978. |
Citation | 489 F.2d 1257 |
Parties | NATIONAL REALTY AND CONSTRUCTION COMPANY, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent, Secretary of Labor, Party Respondent. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
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Peter S. Latham, Washington, D. C., with whom I. H. Wachtel, Washington, D. C., was on the brief, for petitioner.
Jean A. Staudt, Atty., Dept. of Justice, with whom Walter H. Fleischer, Atty., Dept. of Justice, and Baruch A. Fellner and Al. J. Daniel, Jr., Attys., Dept. of Labor, were on the brief, for respondent.
Before WRIGHT and ROBB, Circuit Judges, and MATTHEWS,* Senior District Judge.
We review here an order1 of the Occupational Safety and Health Review Commission which found National Realty and Construction Company, Inc. to have committed a "serious violation" of the "general duty clause" of the Occupational Safety and Health Act of 1970,2 for which a civil fine of $300 was imposed.3 Unable to locate substantial evidence4 in the record to support the Commission's finding of a violation, we reverse.
The 1970 Act provides for the fining and, in aggravated cases, the imprisonment,5 of any employer in interstate commerce who fails to eliminate avoidable hazards to the life, limb or health of his workers. Though novel in approach and sweeping in coverage,6 the legislation is no more drastic than the problem it aims to meet.
29 U.S.C. § 654(a)(1). Breach of the general duty opens an employer to fines of up to $1,000 per violation, some fine in this range being mandatory if the violation is "serious," 29 U.S.C. § 666(b) and (c). Employer duties are enforced through citations and proposed penalties issued by the Secretary of Labor, contested matters being adjudicated by the Commission, an independent body of safety experts.10
At an administrative hearing, held before an examiner appointed by the Commission, William Simms, the Labor Department inspector who cited National Realty, testified in person, and counsel read into the record a summary of stipulated13 testimony by several employees of National Realty. The evidence is quickly restated.14
On September 16, 1971, at a motel construction site operated by National Realty in Arlington, Virginia, O. C. Smith, a foreman with the company, rode the running board of a front-end loader driven by one of his subordinates, Clyde Williams. The loader suffered a stalled engine while going down an earthen ramp into an excavation and began to swerve off the ramp. Smith jumped from the loader, but was killed when it toppled off the ramp and fell on him. John Irwin, Smith's supervisor, testified that he had not seen the accident, that Smith's safety record had been very good, that the company had a "policy" against equipment riding, and that he—Irwin—had stopped the "4 or 5" employees he had seen taking rides in the past two years. The loader's driver testified that he did not order Smith off the vehicle because Smith was his foreman; he further testified that loader riding was extremely rare at National Realty. Another company employee testified that it was contrary to company policy to ride on heavy equipment. A company supervisor said he had reprimanded violators of this policy and would fire second offenders should the occasion arise. Simms, the inspector, testifed from personal experience that the Army Corps of Engineers has a policy against equipment riding. He stated he was unaware of other instances of equipment riding at National Realty and that the company had "abated" its violation.15 Asked to define abatement, Simms said it would consist of orally instructing equipment drivers not to allow riding.
The hearing examiner dismissed the citation, finding that National Realty had not "permitted" O. C. Smith to ride the loader, as charged in the citation and complaint. The examiner reasoned that a company did not "permit" an activity which its safety policies prohibited unless the policies were "not enforced or effective." Such constructive permission could be found only if the hazardous activity were a "practice" among employees, rather than—as here—a rare occurrence.16 Upon reviewing the hearing record, the Commission reversed its examiner by a 2-1 vote, each commissioner writing separately.17 Ruling for the Secretary, Commissioners Burch and Van Namee found inadequate implementation of National Realty's safety "policy." Rejecting the hearing examiner's factual findings in part,18 Commissioner Burch stated that it was "incredible" that an oral safety policy could have reduced equipment riding to a rare occurrence.19 Commissioner Van Namee reasoned that the Smith incident and the "4 or 5" occurrences shown on the record "put respondent on notice that more was required of it to obtain effective implementation of its safety policy."20 The majority commissioners briefly suggested several improvements which National Realty might have effected in its safety policy: placing the policy in writing, posting no-riding signs, threatening riders with automatic discharge, and providing alternative means of transport at the construction site.21 In dissent, Commissioner Moran concluded that the Secretary had not proved his charge that National Realty had "permitted" either equipment riding in general or the particular incident which caused Smith's death.22
Published regulations of the Commission impose on the Secretary the burden of proving a violation of the general duty clause.23 When the Secretary fails to produce evidence on all necessary elements of a violation, the record will—as a practical consequence—lack substantial evidence to support a Commission finding in the Secretary's favor.24 That is the story of this case. It may well be that National Realty failed to meet its general duty under the Act, but the Secretary neglected to present evidence demonstrating in what manner the company's conduct fell short of the statutory standard. Thus the burden of proof was not carried, and substantial evidence of a violation is absent.
The citation and complaint stated that National Realty breached its general duty by permitting Smith to ride the loader.25 This charge was doubly unfortunate. Permission usually connotes knowing consent,26 which is not a necessary element of a general duty violation. Second, the charge overemphasized a single incident rather than directly indicting the adequacy of National Realty's safety precautions regarding equipment riding. Nevertheless, the pleadings were not so misleading as to foreclose the Secretary from litigating the statutory sufficiency of National Realty's safety program. In the circumstances, the word "permitted" could fairly have been read to suggest merely a wrongful failure to prevent the Smith incident, rather than a knowing authorization of his conduct.27 Moreover, any ambiguities surrounding the Secretary's allegations could have been cured at the hearing itself. So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue.28 This follows from the familiar rule that administrative pleadings are very liberally construed29 and very easily amended.30 The rule has particular pertinence here, for citations under the 1970 Act are drafted by non-legal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his inspectors.31
Thus, despite the awkwardness of his charges and pleadings, the Secretary could properly have produced evidence at the hearing on the question whether National Realty's safety policy failed, in design or...
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