489 F.2d 1257 (D.C. Cir. 1973), 72-1978, National Realty & Const. Co., Inc. v. Occupational Safety and Health Review Commission

Docket Nº:72-1978.
Citation:489 F.2d 1257
Case Date:December 13, 1973
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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489 F.2d 1257 (D.C. Cir. 1973)



OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent, Secretary of Labor, Party Respondent.

No. 72-1978.

United States Court of Appeals, District of Columbia Circuit.

December 13, 1973

Argued Oct. 24, 1973.

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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.

J. SKELLY WRIGHT, Circuit Judge:

We review here an order 1 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 evidence 4 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

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is no more drastic than the problem it aims to meet.

The one-the-job health and safety crisis is the worst problem confronting American workers, because each year as a result of their jobs over 14,500 workers die. In only four years time, as many people have died because of their employment as have been killed in almost a decade of American involvement in Vietnam. Over two million workers are disabled annually through job-related accidents.

The economic impact of occupational accidents and diseases is overwhelming. Over $1.5 billion is wasted in lost wages, and the annual loss to the Gross National Product is over $8 billion. Ten times as many man-days are lost from job-related disabilities as from strikes * * *.

* * * These problems seem to be getting worse, not better. 7

An employer's duties under the Act flow from two sources. First, by 29 U.S.C. § 654(a)(2), he must conform to the detailed health and safety standards promulgated by the Secretary of Labor under 29 U.S.C. § 655. 8 Second, where no promulgated standards apply, 9 he is subject to the general duty 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). 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

On September 24, 1971 the Secretary cited national Realty for serious breach of its general duty

in that an employee was permitted to stand as a passenger on the running board of an Allis Chalmers 645 Front end loader while the loader was in motion. 11

After National Realty filed timely notice of contest, the Secretary entered a formal complaint charging that National Realty had

permitted the existence of a condition which constituted a recognized hazard that was likely to cause death or serious physical harm to its employees. Said condition, which resulted in the death of foreman O. C. Smith, arose when Smith stood as a passenger on

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the running board of a piece of construction equipment which was in motion. 12

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 stipulated 13 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

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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.' 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.

A. The Relative Unimportance of the Charge

The citation and complaint stated that National Realty breached its general duty by permitting Smith to

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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 construed 29 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...

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