519 F.2d 1200 (3rd Cir. 1974), 73-1765, Frank Irey, Jr., Inc. v. Occupational Safety and Health Review Com'n

Docket Nº:73-1765
Citation:519 F.2d 1200
Party Name:1974-1975 O.S.H.D. ( 18,927, 1975-1976 O.S.H.D. ( 19,878 FRANK IREY, JR., INC., a corporation, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION et al., Respondents
Case Date:November 04, 1974
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 1200

519 F.2d 1200 (3rd Cir. 1974)

1974-1975 O.S.H.D. ( 18,927,

1975-1976 O.S.H.D. ( 19,878

FRANK IREY, JR., INC., a corporation, Petitioner,



No. 73-1765

United States Court of Appeals, Third Circuit

November 4, 1974

Argued June 13, 1974

Reargued May 8, 1975

On Hearing En Banc July 24, 1975

Page 1201

Oliver N. Hormell, California, Pa., McNeill Stokes, Stokes, Boyd & Shapiro, Atlanta, Ga., for petitioner.

Irving Jaffe, Acting Asst. Atty. Gen., Stephen F. Eilperin, Michael H. Stein, Neil H. Koslowe, Dept. of Justice, Washington, D.C., for respondents; William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, Ann Mason Noble, Washington, D.C., of counsel.

Before STALEY, GIBBONS and WEIS, Circuit Judges.


WEIS, Circuit Judge.

The petitioner employer launched a broad based attack on the Occupational Safety and Health Act in this appeal. After a careful review of the record, we find that most of the assault stops short and that the constitutional challenges to the statute must fail. However, on one point there was error, and we conclude that the Occupational Safety and Health Review Commission applied an improper definition of the word "willful" in assessing one of the penalties against the petitioner. We remand for further consideration of that violation.

An employee of petitioner, Frank Irey, Jr., Inc., was killed on January 11, 1972, when a side of the trench in which he was working collapsed onto him. As a result of this tragedy, a Compliance Officer of the Occupational Safety and Health Administration performed an inspection of the work site and determined that the Irey Company had violated a number of OSHA's standards. A citation was issued charging that the employer failed to properly shore the trench and that other violations had occurred as well.

Irey was a contractor which was performing a construction subcontract in

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Morgantown, West Virginia awarded by the Boeing Company. That organization had caused certain test borings to be made in order to determine soil conditions, and the resulting information was made available to the petitioner. Irey was aware of the safety requirements for trenching work since its contract proposal to Boeing reiterated the OSHA standards in substance.

In November of 1971, West Virginia state safety inspectors cited Irey for permitting workers to be in a trench fifteen feet deep, the bottom portion of which appeared to be rock but the upper sides of which were composed of soft earth with substantial water content. Harley Six, the petitioner's construction superintendent, ordered a backhoe operator to slope the sides of the trench, and the inspectors then permitted work to continue. The company was cautioned orally and in writing of the necessity for shoring or sloping the sides of trenches composed of unstable or soft material and of the added dangers posed by water accumulation in the soil.

On the day before the fatal accident, a trench was dug about 75 feet to 100 feet from the one which had come to the attention of the West Virginia inspectors some six weeks earlier. This new trench was started by blasting through solid rock. On the following day, softer material was reached, and a backhoe was used for the digging. The trench was about 33 inches wide and was taken down to a depth of about 7 1/2 feet. The sides of the trench were vertical and had not been shored. Some rain had fallen during the previous night, and water was pumped out from the 6 to 10 feet area of the trench which had been left open. The decedent then began to lay pipe on the bottom, and thereafter backfill consisting of limestone chips was put into the excavation. It was about noon when the accident occurred.

At the hearing before the OSHA examiner, superintendent Six testified that he thought he was digging in shale and that consequently the trench did not have to be shored according to OSHA regulations. 1 He referred to test boring reports which he said described the soil in the area as brown to dark brown weathered shale with silty clay seams.

The employer also called a soils expert who performed some test borings in the vicinity of the accident some months afterward. This witness described the area as being of weathered limestone which, although similar to weathered shale in appearance, has more of a tendency to slide, particularly when wet.

The hearing officer found that the petitioner was guilty of a willful violation of Sec. 5 of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 654 (1970), (the general duty section of the Act) and of the standards relating to support of trenches published at 29 C.F.R. Sec. 1926.652(b). 2 The Secretary of Labor's proposed sanction of $7,500.00 for this violation was reduced to $5,000.00, and penalties were assessed for other violations of standards which are not of particular relevance at this juncture.

The Occupational Safety and Health Review Commission 3 exercised its discretion

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to review the case, and the findings were affirmed. One of the three members dissented on the ground that the hearing officer had misinterpreted and misapplied the term "willful."

The petitioner has chosen to attack the constitutionality of the Act on a variety of bases, asserting that the enforcement procedures involve an unlawful delegation of power to the executive branch and that the penalties, though denominated civil, are in fact criminal in nature. Some of the procedures to which the petitioner objects, that is, the power of the Commission to increase a proposed penalty, the vagueness of the general duty section, an employer's Sixth Amendment right to be confronted with his accusers, and the imposition of penalties pending determination of an appeal, are not involved in this case, and consequently, we will not decide them.

As provided by the Act, the OSHA inspector who visited the scene of the fatality issued citations against the Irey Company for a number of violations which he found. Included with each was a suggested penalty which would have been binding on the company had it not advised OSHA of its intent to contest the citations. 4 After Irey filed its notice of contest, the case was assigned to a hearing officer of the Review Commission who conducted the hearing at which both the Secretary and the employer presented evidence.

We need not recapitulate the Act in detail here. 5 Basically, it authorizes the Secretary of Labor to establish standards for safe working conditions at places of employment throughout the United States. OSHA inspectors are authorized to visit job sites and issue citations for violations of specific standards or the broad "general duty" clause. 6

Violations fall into four categories:

  1. De minimis, where no monetary penalty is invoked;

  2. Non-serious, where penalties of up to $1,000.00 may be assessed;

  3. Serious violations, defined as those which create a substantial probability of death or serious physical harm, where a mandatory penalty of up to $1,000.00 is provided; and

  4. Willful or repeated violations, where a civil penalty of up to $10,000.00 may be assessed. The term "willful" is not defined by the statute.

    Suits for recovery of the penalties may be brought in the district court, but there is no provision for review of the fact of violation or amount of penalty in that forum. 7 Criminal liability can be

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    invoked in a situation where there is a willful violation which causes death to an employee. Imprisonment for six months and/or a fine of $10,000.00 may be imposed in such an event. Since no mention is made of the forum in which such a proceeding is to be conducted, it may be assumed that it is in the district court.

    Petitioner emphasizes that as to a corporation, the criminal punishment of a fine of $10,000.00 is precisely the same as the civil penalty for a "willful" violation without the constitutional protections afforded a criminal defendant. Thus, the argument goes that the employer is deprived of rights guaranteed by the Fourth, Fifth, Sixth and Seventh Amendments and is not allowed an appeal to the courts on factual issues.

    There is force and logic to these arguments, and we do not dismiss them lightly. Fatal to the petitioner's view, however, is a series of Supreme Court decisions which have validated the position that Congress has a wide range of alternatives available to it for enforcing its legislative policy through administrative agencies. Thus, in Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 947 (1938), it was held that monetary sanctions may be imposed administratively without invoking the judicial power, despite the contention that such penalties are essentially criminal in nature. The Court there also held that the same conduct may subject a person to both civil and criminal sanctions, if the civil aspects are considered remedial. 8

    In the case sub judice, candor compels us to concede that the punitive aspects of the OSHA penalties, particularly for a "willful" violation, are far more apparent than any "remedial" features. However, a deliberate and conscious refusal to abate a hazardous condition may bring about a situation where a heavy civil penalty might be needed to effect compliance with safety standards. In any event, we have not come too far down the road to hold that a civil penalty may not be assessed to enforce observance of legislative policy. See, for example, Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 29 S.Ct. 671, 53 L.Ed. 1013 (1909), and Hepner v. United States, 213 U.S. 103, 29 S.Ct. 474, 53 L.Ed. 720 (1909). Although the label attached by Congress does not preclude judicial review of a statute which transgresses a constitutional right, no such infraction has occurred here. 9...

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