Dunlop v. Ashworth, 75-1311
| Citation | 538 F.2d 562 |
| Decision Date | 03 March 1976 |
| Docket Number | No. 75-1311,75-1311 |
| Parties | 3 O.S.H. Cas.(BNA) 2065, 1975-1976 O.S.H.D. ( 20,473 John T. DUNLOP, Secretary of Labor, Petitioner, v. Uriel G. ASHWORTH et al., Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Judith Burghardt, Atty., U. S. Dept. of Labor, Washington, D.C. (William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for App. Litigation, and Allen H. Feldman, Asst. Counsel for App. Litigation, U. S. Dept. of Labor, Washington, D.C., on brief), for petitioner.
Allen H. Sachsel, Atty., App. Section, Civ. Div., U. S. Dept. of Justice, Washington, D.C. (Rex E. Lee, Asst. Atty. Gen., U. S. Dept. of Justice, Washington, D.C. on brief) for The Occupational Safety and Health Review Commission.
Frank M. Slayton, Vaughan, Slayton & Bennett, South Boston, Va., on brief, for Uriel G. Ashworth.
Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and RUSSELL, Circuit Judge.
Uriel Ashworth was cited by the Secretary of Labor for a serious violation of the Occupational Safety and Health Act of 1970 1 and was assessed a $600 fine. Ashworth contested this citation and succeeded in persuading the Administrative Law Judge who heard his case that the specific provision he was cited under (§ 5(a)(2) of the Act) did not proscribe the conduct attributed to him. This determination was upheld by the Occupational Safety and Health Review Commission, and the Secretary appealed to this court. We affirm the decision below insofar as it holds that Ashworth is not guilty of violating § 5(a)(2) of the Act; however, we remand the case in order to allow the Secretary to amend his pleadings to allege a violation of § 5(a)(1), the so-called General Duty Clause.
Ashworth is a masonry subcontractor who furnishes bricklayers to construct buildings, walls, and foundations for various construction projects. In 1973, he was participating in a school construction project in Dinwiddie, Virginia. On April 20, 1973, high winds blew over a substantial portion of a thirteen foot high masonry block wall that was being constructed by Ashworth, killing one worker and injuring others.
After this fatality, an OSHA compliance officer inspected Ashworth's worksite and found that certain walls under construction had not been braced or shored in any way. Accordingly, the Secretary issued a citation charging Ashworth with failing to temporarily brace or shore a masonry wall that had not reached its designed lateral strength. Ashworth's actions were alleged to be a violation of § 5(a)(2) of the Act. 2 That section simply directs that each employer affecting interstate commerce "shall comply with occupational safety and health standards under this Act." The pertinent standard relied upon by the Secretary appears at 29 C.F.R. § 1926.700(a) (1975) and provides that
All equipment and materials used in concrete construction and masonry work shall meet the applicable requirements for design, construction, inspection, testing, maintenance, and operations as prescribed in ANSI A10.9-1970, Safety Requirements for Construction and Masonry Work.
The standard thus incorporates by reference certain ANSI (American National Standards Institute) guidelines for the construction of masonry walls. ANSI Publication A10.9-1970 contains numerous provisions relating to the types of materials used for construction work and also provides, at paragraph 12.5, that
Masonry walls shall be temporarily shored and braced until the designed lateral strength is reached, to prevent collapse due to wind or other forces.
The Administrative Law Judge and the Review Commission both held that paragraph 12.5 was not incorporated by the standard (§ 1926.700(a)) because the standard is concerned only with equipment and materials used in masonry construction and paragraph 12.5 pertains to a building technique or process. That is, the standard does not actually direct that shoring be used, but rather requires that the shoring, if any, that is used meet the applicable ANSI guidelines for equipment and materials.
The Secretary argues before this court that such a narrow and literal reading of the regulation will discourage the use of safety equipment for, under the Commission's interpretation, a contractor who used no shoring at all would be protected, although one who erected at least some shoring or...
To continue reading
Request your trial
-
Diebold, Inc. v. Marshall
...not enforceably construe a § 655(a) standard to impose requirements which the standard's source did not impose. 6 See Dunlop v. Ashworth, 538 F.2d 562, 563 (4th Cir. 1976); Diamond Roofing Co., Inc. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976). Thus, we also agree that the question whether §......