528 F.2d 564 (5th Cir. 1976), 74--3897, Horne Plumbing & Heating Co. v. Occupational Safety and Health Review Com'n

Docket Nº:74--3897.
Citation:528 F.2d 564
Case Date:February 26, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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528 F.2d 564 (5th Cir. 1976)




Dunlop, Secretary of Labor, Respondents.

No. 74--3897.

United States Court of Appeals, Fifth Circuit

February 26, 1976

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Ira J. Smotherman, Jr., McNeill Stokes, Atlanta, Ga., for petitioner.

William S. McLaughlin, Executive Secretary, OSHRC, Peter J. Brennan, Secretary of Labor, U.S. Dept. of Labor, Washington, D.C., Beverley R. Worrel, Regional Sol., Dept. of Labor, Atlanta, Ga., T. A. Housh, Jr., Counsel for Regional Litigation, U.S. Dept. of Labor, Michael H. Levin, Counsel for Appellate Litigation, U.S. Dept. of Labor, Stephen F. Eilperin, Larry R. O'Neal, Allen H. Sachsel, Dept. of Justice, Appellate Section, Civ. Div., Washington, D.C., for respondents.

Petition for Review of an Order of the Occupational Safety and Health Review Commission (Georgia Case).

Before GEWIN, BELL [*] and SIMPSON, Circuit Judges.

GEWIN, Circuit Judge:

Petitioner Horne Plumbing & Heating Company seeks review under 29 U.S.C. § 660(a) of an order of the Occupational Safety and Health Review Commission (the Commission) upholding the administrative law judge's decision that the company violated § 5(a)(2) of the Occupational Safety and Health Act, 29 U.S.C. § 654(a)(2), by (1) failing properly to shore the sides of a trench, 29 C.F.R. 1926.652(b), and (2) storing dirt within two feet of the edge of a trench, 29 C.F.R. 1926.651(i)(1). A penalty of $1000 was assessed. Finding that the decision rests on an incorrect theory of law, we vacate.

Petitioner Horne is a sole proprietorship with approximately eleven employees. In May and June of 1972, Horne was engaged in excavating a trench and laying sewer pipe in Chamblee, Georgia. Prior to the commencement of the excavation, the company provided supplies

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for shoring the sides of the trench, and Fred Horne, the company's owner, instructed and cautioned his men to shore the trench. On May 18, Mr. Horne visited the job site and observed Sam Cox and another employee making up the shoring to be used in the ditch; he then left in order to attend a safety seminar out of town.

On May 19, as the trench was being dug by a backhoe, employees put the shoring in place and laid the pipes. Contrary to instructions, solid plywood sheeting, which had been provided by Horne, was not used in the shoring. Also contrary to specific instructions and despite continued warnings from fellow employees and the operating engineer who was excavating the ditch, two Horne employees--J. W. Chupp, the job foreman, and Sam Cox, also an experienced foreman--worked in unshored portions of the ditch. 1 When the backhoe was about fifty feet ahead of the shored section of the ditch, a cave-in began at the backhoe and continued along the ditch to the point of the first bracing; none of the shored portion collapsed. Chupp and Cox were working ten to fifteen feet beyond the shored area when the cave-in occurred, and both were killed.

Shortly after the accident, a compliance officer of the Occupational Safety and Health Administration (OSHA) inspected the worksite, finishing the inspection the following Monday, May 22. This resulted in a June 8, 1972 citation alleging serious violations of the Act in failing properly to shore the sides of a trench and storing excavated material within two feet of the edge of a trench. 2

Prior to re-excavation of the ditch, which began on June 12, 1972, Mr. Horne made a written summary of pertinent OSHA and county regulations, and informed the Administration and the county inspector of the re-excavation plans. He instructed his subcontractor, T & K Pipeline Company, to remove all excavated dirt to at least three feet from the edge of the ditch, and he contracted with T & K for an extra bulldozer, whose sole function was to remove and deposit dirt in two piles seventy and forty feet away. Mr. Horne was personally present all of the first day of re-excavation. On the second day he left for a few hours to prepare his payroll. During his absence, the site was inspected again, and another citation for a serious violation--storing dirt within two feet of the excavation--was issued.

It is undisputed that Horne had an outstanding safety program for a small employer. Prior to the May 19 accident, the company had a record of almost twenty years without a lost-time accident. Mr. Horne held group safety meetings with his employees, and also conducted on-the-job meetings with individuals; he issued written handouts concerning safety instructions and the requirements of the Act. A safety expert testified that Horne's safety program 'in many cases far exceeds that of other contractor management of similar size.'

Both men killed in the accident were experienced foremen and journeymen plumbers; each had been licensed for more than twenty years. They understood Mr. Horne's safety instructions; they were trained and highly experienced in the use of shoring; and they had always used shoring properly in previous

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jobs, including one immediately preceding the Chamblee excavation.

The administrative law judge held that Horne was in serious violation of the Act and assessed a penalty of $500 for each citation. OSHRC Docket Nos. 1096 and 1261, February 9, 1973. The judge stated: 'The evidence is clear that Mr. Horne was diligent in providing for the safety of his employees, and there was no dispute that his foreman understood his policy and instructions. It also appears that he had no reason to believe his policy and instructions would be disregarded by his foreman.' Id. at 11. Nevertheless, he rejected Horne's defense 'that he should not be liable for violations which occurred as the result of his employee's misconduct'; and that 'he did not and could not with the exercise of reasonable diligence, know of the presence of the violations within the purview of section 17(k) of the Act.' 3 Id. at 10. Basing his decision on an agency theory, the judge held that 'on the basis of the facts presented here, the foreman is deemed to be part of management. . . . Respondent cannot be heard to deny his responsibility under the Act by charging that his foreman failed to meet the standards as required by the Secretary.' Id. at 12. Regarding the second citation, the judge concluded: 'Mr. Horne himself testified that he had a foreman on the job who had the authority to correct any problems. . . . It will serve no useful purpose to repeat the...

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