511 F.2d 1139 (9th Cir. 1975), 73--1938, Brennan v. Occupational Safety and Health Review Com'n

Docket Nº:73--1938.
Citation:511 F.2d 1139
Party Name:Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Raymond Hendrix, d/b/a Alsea Lumber Company, Respondent.
Case Date:February 24, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1139

511 F.2d 1139 (9th Cir. 1975)

Peter J. BRENNAN, Secretary of Labor, Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Raymond

Hendrix, d/b/a Alsea Lumber Company, Respondent.

No. 73--1938.

United States Court of Appeals, Ninth Circuit

February 24, 1975

Page 1140

Robert S. Greenspan, Civil Div., Appellate Section, U.S. Dept. of Justice (argued), Washington, D.C., for petitioner.

Harry S. Chandler (argued), Davies, Biggs, Strayer, Stoel & Boley, Portland, Or., for respondent.

Before KOELSCH and CHOY, Circuit Judges, and MARKEY, [*] United States Court of Customs and Patent Appeals.

OPINION

MARKEY, Chief Judge, United States Court of Customs and Patent Appeals:

The Secretary of Labor petitions for review of that portion of a final order of the Occupational Safety and Health Review Commission (Commission) which vacated certain alleged violations of the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. § 651 et seq. We find the Commission's order supported by substantial evidence on the record, considered as a whole, and affirm.

The Facts

Respondent Hendrix's Alsea Lumber Company (Alsea) maintains a small sawmill and logging yard, employing some 30 employees in the production and sale of lumber. The genesis of this action was a safety and health inspection of Alsea conducted by a compliance officer (inspector) of the U.S. Department of Labor.

The inspector, approaching the mill at approximately 35 miles per hour in his pick-up, observed Alsea's log pondman at a waterside work station about 500 feet from the roadway. The pondman did not at that time appear to the inspector to be wearing a buoyant life jacket. The inspector proceeded to the mill, presented his credentials, and conducted an inspection tour as provided for in 29 U.S.C. § 657. When the inspection tour reached the waterside station, the pondman was wearing a life jacket.

After the inspection tour, Alsea was cited for three serious and seventeen non-serious violations of the Act, of which the following are pertinent here:

(a) 'Serious Violation No. 2'--29 CFR 1910.212(a)(3)(ii)--Location of the work station of a buck saw operator exposing him to the saw while it is in operation; Penalty--$750.00

(b) 'Serious Violation No. 3'--29 CFR 1910.265(d)(2)(iii)(g)--Failure of a log pond worker to wear a buoyant life preserver while at his work station on the pond; Penalty--$750.00

(c) 'Non-Serious Violation No. 5'--29 CFR 1910.133(a)(1)--Failure of worker to wear eye goggles while subjected to flying sawdust and splinters from the saws. Penalty--$35.00

The record establishes that the appealed violations resulted from individual employee choices of conduct--equipment operation and failure to wear protective equipment--which were contrary to the employer's instructions. Serious Violation No. 2 rests on an employee's operation of the buck saw as it is raised and lowered, whereas the employer's instructions restricted saw operation to just prior to, during and just after contact with the log, at which time the work station of the operator is several feet to the rear and to the side of the saw. Serious Violation

Page 1141

No. 3 and Non-Serious Violation No. 5 rest on the election of the involved employees, respectively, not to wear a life preserver and goggles at the time of observation by the inspector. The life preserver and goggles had been provided by the employer with instructions that they be worn. They were donned by the involved employees before the inspector left the premises.

There is no evidence in the record tending to show that the employer had any knowledge respecting these instances of employee disobedience of its established instructions. No effort was made to establish that the instructions were a mere sham or that the employer had any on-going practice of permitting its instructions to be disregarded by its employees with impunity. The Secretary alleged employer knowledge and Alsea denied it. As the case reaches us, the absence of employer knowledge must be considered one of the established facts.

Commission's Order

The alleged violations were all vacated for lack of evidence that the employer knew or had reason to know of their existence. The Commission's position was that the burden of proof on all elements of a violation lay upon the Secretary and that employer knowledge is a necessary element of both serious and non-serious violations.

'Serious Violation No. 3' was vacated on the additional ground of its having been observed prior to presentation of the inspector's credentials.

Scope of Review

The Act authorizes the Secretary of Labor to set safety standards, to conduct inspections, and to issue citations and proposed penalties. It establishes the Commission as an independent agency to carry out adjudicatory functions and authorizes the Commission, interalia, to vacate citations and proposed penalties. The findings and conclusions of the Commission are subject to our review under the provisions of the Administrative Procedure Act, 5 U.S.C. § 706 and 29 U.S.C. § 660(a). Because there is no factual issue before us, the Commission's order must be affirmed if it be found to have been in accordance with law.

The Issues

The Secretary challenges the order on legal grounds, urging that the Commission erred in (1) assigning to him the burden of proof with respect to employer knowledge; (2) requiring employer knowledge as an element of the non-serious violation; and (3) vacating one of the serious violations as unauthorized because it was observed prior to presentation of the inspector's credentials.

Finding no error in the Commission's order vacating all of the violations for lack of proof by the Secretary of employer knowledge, we do not reach the issue of whether observation of a violation prior to presentation of credentials is a proper basis for a citation.

OPINION

Although the Secretary's brief quotes and is for the most part conched in language relating to the general duty clause of the statute, 29 U.S.C. § 654(a) (1), the complaint and citations themselves charge failure to comply with specific safety and health standards, i.e., violations of the special duty clause, 29 U.S.C. §...

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