Marshall v. C. F. & I. Steel Corp., 76-1952

• Decision Date: 06 July 1978
• Docket Number: No. 76-1952,76-1952
• Citation: 576 F.2d 809
• Parties: 6 O.S.H. Cas.(BNA) 1543, 1978 O.S.H.D. (CCH) P 22,710 Ray MARSHALL, Secretary of Labor, Petitioner, v. C. F. & I. STEEL CORPORATION and Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 809

576 F.2d 809

6 O.S.H. Cas.(BNA) 1543, 1978 O.S.H.D. (CCH) P 22,710

Ray MARSHALL, Secretary of Labor, Petitioner, v. C. F. & I. STEEL CORPORATION and Occupational Safety and Health Review Commission, Respondents.

No. 76-1952.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Jan. 24, 1978.

Decided May 3, 1978.

Rehearing Denied July 6, 1978.

John A. Bryson, U. S. Dept. of Labor, Washington, D. C. (Alfred G. Albert, Acting Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, Allen H. Feldman, Asst. Counsel for Appellate Litigation and Stephen A. Bokat, Atty., U. S. Dept. of Labor, Washington, D. C., on the brief), for petitioner.

Miles C. Cortez, Jr., of Welborn, Dufford, Cook & Brown, Denver, Colo. (Richard L. Fanyo of Welborn, Dufford, Cook & Brown, Denver, Colo., on the brief), for respondent C. F. & I. Steel Corp.

Before HOLLOWAY, DOYLE and McKAY, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This case arose under the Occupational Safety and Health Act. The review proceedings in this court have been instituted by the Secretary of Labor following a decision unfavorable to the Department by the Occupational Safety and Health Review Commission (OSHRC), pursuant to 29 U.S.C. § 660(b) (1970). The Commission's decision reversed a decision of its Administrative Law Judge, which had held the respondent Colorado Fuel and Iron Corporation in serious violation of 29 U.S.C. § 654(a)(1) (1970). The Commission's ruling was that the Secretary, through his agents, had not acted in accordance with 29 U.S.C. § 657(e) (1970), commonly called § 8(e) of the Occupational Safety and Health Act, which section extends to the employer an opportunity to have his representatives accompany the Secretary or his authorized representative during the physical inspection of any workplace under § 8(a) for the purpose of aiding such inspection.

C. F. & I. Steel Corporation is a large producer of steel and steel products. It employs over 5,000 people, and at its Pueblo facility there are two oxygen steelmaking furnaces, which are known as basic oxygen furnaces. These are housed in one building. The injuries in question which led to two deaths of employees of a contractor occurred during a so-called hot metal charge, which is part of the steelmaking process. A not infrequent incident of such a charge is that explosions take place as a result of accumulations of oil or moisture in scrap metal or in the basic oxygen furnace. When the explosion occurs, there is a discharge of particles of molten metal. The evidence before the Administrative Law Judge was that employees in the building where the two basic oxygen furnaces are housed are exposed to the risk of having molten metal particles contact them. To avoid this they must run for cover when the explosion takes place. No prior warning was here given at the time of the charge so as to give the employees an opportunity to go to a safe area. A siren sounds after the charges are complete, but not before.

The deaths in question occurred on October 31, 1973 to two employees of State, Inc., an independent contractor. State, Inc. had been installing antipollution equipment in the rafters of the basic oxygen furnace building when a first explosion occurred on August 27, 1973. C. F. & I. assured the employees of State, Inc. that the cause of this explosion would be corrected. On October 31, there was another explosion. Three State, Inc. employees were working in the rafters at the time, and a C. F. & I. electrician had just entered the building. Two of the State, Inc. employees were killed in connection with that incident.

C. F. & I. promptly notified compliance officers of OSHA of the two fatalities. The next day, three officers of OSHA visited C. F. & I. safety offices and stated that they wished to conduct an opening conference with representatives of State, Inc. There is some question as to whether C. F. & I. was represented at this opening conference, but at least it is conceded by C. F. & I. that it had representation during the latter part of this conference in the person of one Nachman, an engineer. The brief of C. F. & I. concedes that there was a C. F. & I. representative present during part of the opening session, and Commissioner Cleary, in his dissent from the Commission decision, accepted this. Also, the remaining two members of the Commission did not dispute this. Following the opening conference, one Alex Guzowsky, the general supervisor for safety and security for C. F. & I., accompanied the inspector to State, Inc.'s trailers. Guzowsky also arranged for plant passes for the inspectors and arranged an interview between the inspectors and the C. F. & I. crane charging operator. Guzowsky sat in on some of this interview. On the afternoon of that day, however, Darrell Nelson, the assistant to Guzowsky, took the party into the basic oxygen furnace building for the inspection.

On November 2, which was the following day, the inspectors presented themselves at the safety offices of C. F. & I. and requested a meeting with the shop superintendent for the purpose of getting a technical explanation of the steelmaking process. Mr. Guzowsky arranged that meeting and attended it. Following this, the inspectors visited the basic oxygen furnaces briefly, and after that they requested a closing conference with C. F. & I. On that occasion, C. F. & I. was informed that it might be cited for a violation.

Thereafter, it was cited for a serious violation of § 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(1) (1970). This latter provision requires each employer to furnish each of his employees employment and a place of employment free from recognized hazards likely to cause death or serious physical harm.

C. F. & I. contested the citation, whereupon an Administrative Law Judge heard the case, but concluded, contrary to the contention of C. F. & I., that the inspection satisfied § 8(a) and (e) of the Act. The Administrative Law Judge rejected C. F. & I.'s contention that the inspectors failed to present their credentials to the C. F. & I.

officials and thereby denied C. F. & I. the opportunity to have a representative accompany them during the inspection. The Administrative Law Judge ruled also that there was a serious violation on its part and imposed a penalty of $300.00. The Commission reviewed this decision and reversed it, its holding being that the "walkaround" right provided by § 8(e) had been violated by the inspectors and on that account the citation should have been dismissed.

The basis for C. F. & I.'s contentions that their "walkaround" right had been violated, that is that § 8(e) of the Act had not been complied with, are, first, that there was not a substantial compliance with § 8(e) of the Act and that this was required. Second, that the sanction imposed, that is dismissal of the citation, was proper based upon the requirements of § 8(e). Third, that the violation in question by the inspectors was of a constitutional dimension.

I.

C. F. & I. vigorously argues that we are bound by the findings of fact of the Commission. This we do not deny, but there are no findings of fact contained in the majority opinion. Commissioner Moran wrote for himself and Chairman Barnako. Commissioner Cleary dissented. The Moran opinion consisted of conclusions of law rather than any findings of fact. The findings of the Administrative Law Judge were not disputed. The emphasis in the conclusions of law was that there was a failure on the part of the inspectors to notify C. F. & I. at the time of arrival that it was going to be inspected. Based on its opinion that there was no justification for this omission, the majority reached a legal conclusion that this failure to notify resulted in C. F. & I.'s being effectively foreclosed from an opportunity to have its representative accompany the compliance officer during the inspection. This is all a misapprehension. The C. F. & I. general supervisor for safety and security was present during most of the time. When he was not present his assistant was, so the conclusion that C. F. & I. was foreclosed cannot stand.

Also, the Commission speaks of this as if the failure of the inspectors to present themselves formally misled C. F. & I. Not so. C. F. & I. had notified OSHA just prior to the presence of the inspectors and so it was understood why the inspectors were there. C. F. & I. had adequate notice, whereby its people could be present. The Company availed itself of the opportunity. Before the inspection was carried out, it was not possible for the inspectors to advise C. F. & I. that they might be cited because the inspectors did not know it. We must, then, disagree with the conclusion of the majority of the Commission that the failure formally to notify C. F. & I. constituted a violation of § 8(e). In so concluding, we are not going contrary to the Commission's findings. 29 U.S.C. § 660(a) (1970). See Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 866, 869 (10th Cir. 1975). We are not, however, limited to the interpretative decision or legal conclusions of the Commission. We must examine the record as a whole, including the decision of the Administrative Law Judge. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 495-97, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

II.

The main thrust of C. F. & I.'s argument is that it was entitled to be advised at the very outset that it was being inspected and that instead the inspectors misled C. F. & I., causing it to believe that State, Inc. was the sole object. We disagree. The statutory requirement was satisfied. Unquestionably, § 8(e) is a vital safeguard of the employees' rights. Whether there is as well a right of constitutional dimension applicable under all circumstances is now presented to the Supreme Court in Marshall v. Barlow's, Inc., 430 U.S. 964, 97...