645 F.2d 822 (9th Cir. 1981), 79-7622, Donovan v. Royal Logging Co.

Docket Nº:79-7622, 79-7628.
Citation:645 F.2d 822
Party Name:Raymond J. DONOVAN, Secretary of Labor, Petitioner/Cross-Respondent, v. ROYAL LOGGING COMPANY, Respondent/Cross-Petitioner, and Occupational Safety and Health Review Commission, Respondent.
Case Date:May 18, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 822

645 F.2d 822 (9th Cir. 1981)

Raymond J. DONOVAN, Secretary of Labor, Petitioner/Cross-Respondent,

v.

ROYAL LOGGING COMPANY, Respondent/Cross-Petitioner,

and

Occupational Safety and Health Review Commission, Respondent.

Nos. 79-7622, 79-7628.

United States Court of Appeals, Ninth Circuit

May 18, 1981

Argued and Submitted April 6, 1981.

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[Copyrighted Material Omitted]

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John R. Bradley, Washington, D.C., for OSHRC.

George J. Tichy, Spokane, Wash., for Royal Logging Co. and Donovan.

On Petition to Review an Order of the Occupational Safety and Health Review Commission.

Before WRIGHT and HUG, Circuit Judges, and EAST, Senior District Judge. [*]

EUGENE A. WRIGHT, Circuit Judge:

This case reaches us because of an accident in Montana in which a logger was crushed to death when the tractor he was operating rolled over on him. The Occupational Health and Safety Administration (OSHA) cited the employer for failing to provide protective equipment.

On appeal from the administrative law judge's (ALJ) decision, the Occupational Health and Safety Review Commission (Commission) held that Royal Logging Co. (Royal) violated the general duty clause, § 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), by not requiring operators of earthmoving machinery, equipped with Rollover Protective Structures (ROPS), not exposed to the debris hazard, to wear seat belts. We affirm.

I. FACTS

Royal conducts logging operations in Montana. Its heavy equipment includes caterpillar tractors or cats. "Swamp" or "pioneer" cats cut initial trails in the areas to be logged and, after logs have been cut, clear debris, small trees, and felled limbs to form an open trail. "Skid" cats drag the cut logs to the loading areas. "Brush" cats sweep the logged areas and pile debris for burning.

All cats are equipped with ROPS and most have seat belts. The ROPS prevent fatalities and serious injuries from rollovers if the operator is not thrown from the cab. Seat belts keep the operator in the cab.

Royal encourages the use of seat belts, but leaves their actual use to the operators' discretion. Operators are unwilling to wear belts because they believe the belts would restrain them from avoiding debris hurled into the cab and from jumping from the cab if the cat rolled over.

The debris includes jillpokes, sweepers, rocks, and chunks of wood. A jillpoke is a long narrow branch or tree that is broken by a moving cat and propelled spearlike toward the cab. A sweeper is a tree or branch that is caught by the cat and sweeps into the cab when released. About 12 objects enter each cab daily.

On August 25, 1975, an employee, cutting initial trails in a sloped, forested area, was found crushed under his cat. No one witnessed the accident. His machine had a seat belt, but there was no evidence to indicate whether the decedent used it.

Royal discovered the accident on August 26th and notified OSHA of it on August 27th. An OSHA compliance officer visited Royal's offices on September 5th. He discussed the accident and the use of seat belts with Royal's safety director and attorney and questioned employees and examined the cat. He did not visit the accident site.

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On September 10th, the Secretary issued a citation to Royal, alleging a serious violation of 29 C.F.R. § 1926.28(a). 1

On or about noon, August 25, 1975, the employer failed to require the wearing of appropriate personal protective equipment in an operation where there was exposure to hazardous conditions and where the use of such equipment is required by 29 C.F.R. 1926.602(a)(2)(i) to reduce the hazard to employees. (1) 2

Part 1926 sets the safety standards for the construction industry.

Royal contested the citation and the Secretary filed a formal complaint on October 8th. It repeated the allegation in the citation with the modification that the alleged violation took place on September 5, 1975 and times prior thereto.

Five months after the inspection and four months before the hearing, the ALJ granted the Secretary's motion to amend the complaint to allege a violation of the general duty clause, § 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1) 3, or alternatively, 29 C.F.R. § 1926.28(a).

At the hearing, the ALJ concluded that the standards in Part 1926 do not apply because the logging industry is not engaged in construction. He held that swamp, skid, and pioneer cat operators are not required to wear seat belts when exposed to jillpokes and sweepers, but found that Royal violated the general duty clause by not requiring operators of all other ROPS equipped machinery to wear them. He reduced the suggested fine from $500 to $200.

On review, the Commission affirmed, broadening the exemption to include all cat operators on ROPS equipped machinery exposed to the debris hazard.

The Secretary appeals the exemption of cat operators exposed to debris. Royal wishes to have the citation invalidated.

II. DISCUSSION

A. Standard of Review

Our review is limited to the record before the administrative judge. 29 U.S.C. § 660(a); Titanium Metals Corp. of America v. Usery, 579 F.2d 536, 540 (9th Cir. 1978). Findings of fact are conclusive if supported by substantial evidence on the record considered as a whole. Id. We may review freely questions of law.

B. Complaint, Answer, Citation, and Amended Complaint

Royal raises a number of procedural challenges. It charges that the complaint, answer, and amended complaint are unnecessary, ultra vires creatures of the Commission and that the Commission proceedings should be limited to the issues raised in the citation and notice of contest.

It also charges that the citation fails to comply with 29 U.S.C. §§ 657 and 658.

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1. Complaint, Answer, and Amended Complaint

The statute provides that the Secretary or his authorized representative shall issue a citation when they believe the employer has violated a requirement of the Act. 29 U.S.C. § 658(a). If the employer timely contests the citation, the Commission must hold a hearing and issue an order affirming, modifying, or vacating the citation. 29 U.S.C. § 659(c).

The statute does not mention a complaint, amendments to the complaint or citation, or an answer. However, 29 U.S.C. § 661(f) authorizes the Commission "to make such rules as are necessary for the orderly transaction of its proceedings." Unless it adopts different rules, "its proceedings shall be in accordance with the Federal Rules of Civil Procedure." Id.

In accordance with that mandate, the Commission promulgated Rule 33, found at 29 C.F.R. 2200.33. 4 It requires the Secretary to file a complaint with the Commission within 30 days of receipt of notice of contest. The complaint must include all alleged violations and penalties which are contested. If the Secretary seeks to amend the citation in the complaint, he must set forth reasons and state the change with particularity. The party against whom the complaint issues has 15 days to file an answer.

A regulation promulgated by OSHA "is entitled to deference unless it cannot be said to be a reasoned and supportable interpretation of the Act." Whirlpool Corp. v. Marshall 445 U.S. 1, 11, 100 S.Ct. 883, 890, 63 L.Ed.2d 154 (1980). Because the Act expressly authorizes the Commission to promulgate its own procedural rules or proceed under the Federal Rules of Civil Procedure, requiring a complaint and answer is a reasoned and supportable interpretation of that mandate.

To accept Royal's argument that these pleadings are purposeless and outside the Commission's authority is to read sections 658 and 659 in isolation. See Southern Colorado Prestress v. OSHRC, 586 F.2d 1342, 1347 (10th Cir. 1978) (the court rejected the argument that the Federal Rules are inapplicable to the citation procedure).

Allowing amendments to the complaint and citation in accordance with F.R.Civ.P. 15 and Commission Rule 33 also comports with the intent of the Act as expressed in section 661(f). Indeed, we recently recognized that an employer

"does not have any vested right to go to trial on the specific charge mentioned in the citation or to be free from exposure to a penalty in excess of that originally proposed."

Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d 199, 206 (9th Cir. 1980) (citation omitted).

It is settled that administrative pleadings are liberally construed and easily amended. Mineral...

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