Con Agra, Inc. v. Occupational Safety and Health Review Com'n

• Decision Date: 18 March 1982
• Docket Number: No. 81-1864,81-1864
• Citation: 672 F.2d 699
• Parties: 10 O.S.H. Cas.(BNA) 1415, 1982 O.S.H.D. (CCH) P 25,961 CON AGRA, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Raymond J. Donovan, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 699

672 F.2d 699

10 O.S.H. Cas.(BNA) 1415, 1982 O.S.H.D. (CCH)

P 25,961

CON AGRA, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Raymond

J. Donovan, Secretary of Labor, Respondents.

No. 81-1864.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 10, 1982.

Decided March 18, 1982.

Dean G. Kratz, McGrath, North, O'Malley & Kratz, P. C., Omaha, Neb., for Con Agra, Inc.

T. Timothy Ryan, Jr., Sol. of Labor, Frank A. White, Associate Sol. for Occupational Safety and Health, Dennis K. Kade, Associate Counsel for Appellate Litigation, Robert W. Swain, Atty., U. S. Dept. of Labor, Bobbye D. Spears, Regional Sol., Washington, D. C., for the Secretary of Labor.

Before HEANEY and ARNOLD, Circuit Judges, and OVERTON, ^* District Judge.

OVERTON, District Judge.

This is an appeal from a final order of the Occupational Safety and Health Review Commission (OSHRC). The Commission denied review of an administrative law judge's citation of the petitioner, Con Agra, Inc., for one violation of the Occupational Safety and Health Administration's housekeeping standards and several violations of the National Electrical Code, which has been incorporated in the agency's standards. The only issue on appeal is whether the decision below is supported by substantial evidence.

The underlying facts may be briefly summarized. Con Agra, Inc. operates a facility in Jacksonville, Florida, where it produces various animal feed mixes from grains and other commodities. ¹ From June 26, through June 30, 1980, the Secretary of Labor conducted an investigation of Con Agra's worksite and subsequently issued one serious citation and one other citation charging the company with violations of the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.

Operations at the Jacksonville facility include crushing, grinding, mixing and transferring several grains, primarily corn. The plant's products generally consisted of 50% to 60% grain. Included in the facility are three rooms or areas designated as houses three, four and five. The administrative law judge's decision and order reveals that house three contains offices and an area used for bagging feed. House four is a storage area for grains and other ingredients and contains certain operating equipment used in the production of feed. House five is a storage area containing storage bins for grains and a pile of cottonseed hulls. Attached to this house is a railroad dock used for shipping and receiving feed and grains.

The violations which are here at issue may be conveniently grouped into three categories, all of which are challenged by Con Agra on substantial evidence grounds. First, Con Agra is charged with a violation of the OSHA housekeeping standard contained in 29 C.F.R. § 1910.22(a)(1) for failure to keep its place of employment "clean and orderly and in sanitary condition." Second is the question whether the indoor locations in question constituted Class II, Division 2 locations within the meaning of the NEC so as to support a violation by the existence of a number of non-approved electrical switches and receptacles. Third is the question whether the loading dock constituted a Class III, Division 2 location so as to support a violation by the use of non-conforming electrical equipment, specifically an electrically powered Bobcat front-end loader.

The administrative law judge's prefatory observations about the Con Agra facility are helpful to an understanding of the case:

The operations conducted ... in connection with the receiving and storing of grain (primarily corn), the crushing and grinding of grain and the moving of grain and feed within the facility create a significant amount of grain dust which collects on the floors and walls of the facility, on equipment, and on any objects within the facility having surfaces to which dust can cling. (Con Agra) does not contest this fact ... and the accumulation of dust within the facility is clearly revealed by many of the photographs contained in complainant's exhibit one.

The Occupational Safety and Health Review Act provides that the Commission's findings of fact shall be conclusive "if supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 660(a). "Substantial evidence has a long-standing interpretation by the Supreme Court. It 'is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' (citation omitted) Accordingly, it 'must do more than create a suspicion of the existence of the fact to be established.... it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.' " Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951), quoting Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 368. In reviewing the Commission's factual findings, § 660(a) requires this Court to consider not only the evidence supporting the administrative law judge's findings, but also the evidence offered by Con Agra in opposition.

In the case at bar, the administrative law judge's factual findings essentially rest on his determination as to the credibility of two expert witnesses. The Secretary's investigator, Mr. Hight, had conducted over 1000 inspections under the Act, including...