Accu-Namics, Inc. v. Occupational Safety and Health Review Commission, ACCU-NAMIC

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtDYER
Citation515 F.2d 828
Parties3 O.S.H. Cas.(BNA) 1299, 1974-1975 O.S.H.D. ( 19,802 , Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Secretary of Labor, and JohnT. Dunlop, Respondent.
Decision Date11 July 1975
Docket NumberNo. 74-2979,ACCU-NAMIC,INC

Page 828

515 F.2d 828
3 O.S.H. Cas.(BNA) 1299, 1974-1975 O.S.H.D. ( 19,802
ACCU-NAMICS, INC., Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Secretary
of Labor, and JohnT. Dunlop, Respondent.
No. 74-2979.
United States Court of Appeals,
Fifth Circuit.
July 11, 1975.

Page 830

David Ford Hunt, Dallas, Tex., for petitioner.

William S. McLaughlin, Exec. Sec., OSHRC, Washington, D. C., George T. Avery, Reg. Sol., Dallas, Tex., Baruch Fellner, Coun. for Reg. Litigation, Div. of OSH, Sol., Dept. of Labor, Stephen F. Eilperin, Judith S. Feigin, Dept. of Justice, Washington, D. C., for respondent.

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

Before GEWIN, DYER and ADAMS, * Circuit Judges.

DYER, Circuit Judge:

Accu-Namics, Inc., seeks review of a final order of the Occupational Safety and Health Review Commission finding petitioner, Accu-Namics, guilty of a "serious violation" of the Occupational

Page 831

Safety and Health Act (OSHA). 29 U.S.C.A. § 651 et seq.

Accu-Namics contracted in 1971 with the city of Lubbock, Texas, to lay a sewer line, which involved digging a deep, narrow trench and laying the pipe. The men working in the trench were protected by a portable shield designed to prevent cave-ins. Nevertheless, while the work was in progress the trench did cave in, and four employees were killed.

An OSHA compliance officer was working nearby and arrived on the scene about an hour after the accident while rescue operations were still in progress. He did not identify himself immediately but testified that "it might have been an hour or so" before he informed Conklin, the superintendent, who he was. He returned with the area director to complete his investigation on the following day, but found no one on the job site.

The compliance officer, acting as the representative of the Secretary of Labor, issued a citation for a serious violation. A violation is deemded "serious" under the Act if there is a substantial probability of death or serious injury resulting from it. The employer is excused only if he did not and could not with the exercise of reasonable diligence know of the violation. 29 U.S.C.A. § 666(j).

The violation for which Accu-Namics was cited was that the workers in the trench were inadequately protected from cave-in. The bottom 21 feet of the trench wall was of soft material, and was not adequately shored or supported so as to protect employees in the trench bottom as required by 29 C.F.R. § 1926.652(b). 1 Further, the regulations provide that where slides or cave-ins might occur as a result of adjacent backfilled excavation, "additional precautions" to shore or brace must be taken. 29 C.F.R. § 1926.652(e). 2 The citation recites that no such precautions were taken, although a backfilled excavation of a 5-foot deep gas line existed 5.5 feet from the center line of the trench.

The trench at the cave-in site was 24 feet deep. The portable shield used to protect the workers extended 14.25 feet from the ground level down into the trench. The shield, according to the citation, was inadequate under 29 C.F.R. § 1926.653(p) 3 because it did not support the trench walls all the way to the bottom. Ten feet of trench wall where the men were working was not shielded, nor was it braced in any other manner. This was the substance of the violation.

Accu-Namics contested the citation and was given an adversary hearing before an administrative law judge (hearing examiner). The judge entered extensive findings of fact which included the finding that the cave-in was caused by the simultaneous occurrences of the following conditions:

1. The soil between 12 and 19 feet was a slightly reddish fine silty sand which had very little cohesion. Soil was friable even under finger tips.

2. The moisture content of the fine sand between 12 and 19 feet was particularly high and resulted in low shear strength.

3. The construction of the trench for the existing gas line at 4 feet away

Page 832

created a weak vertical plane. The bond between the filled-in soil in the trench and the original undisturbed soil was so small as to cause a top tensile zone in soil, as the sewer trench was cut.

4. The wheel carrying the weight of the shield and gravel hopper acted as a concentrated load at the above vertical plane.

The judge, however, made no finding as to the employer's culpability under the Act. He held instead that the Secretary had violated both the Act and his own regulations by failing to advise Accu-Namics of the inspection "until it was completed," 4 and by failing to accord the employer "walkaround" rights. 5 The judge further held that these omissions by the Secretary violated "basic fairness and procedural due process inherent in the Act." He concluded that this violation required that the citation and proposed penalty be vacated.

The Act provides that the hearing examiner is to make a "report" of his determinations "which constitutes his final disposition of the proceedings." This report becomes the final order of the Commission in 30 days, unless within that period any Commission member directs review by the Commission. 29 U.S.C.A. § 661(i). In this case, a Commission member did direct such a review and the parties were notified as follows:

The undersigned hereby directs review of the recommended decision and orders in the captioned case pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. § 661(i)).

Submissions are invited on the following issue:

Whether the Judge properly interpreted and applied sections 8(a) and 8(e) of the Act in this case.

Upon the consideration of the case, the Commission reversed the administrative law judge on the procedural questions of credentials (section 8(a)) and walkaround rights (section 8(e)). It then moved to the merits, specifically adopted the judge's findings of fact, and held that

Page 833

Accu-Namics was guilty of a serious violation, reinstating the original citation and $500 penalty. Accu-Namics appeals this final order under Section 11(a) of the Act. 29 U.S.C.A. § 660(a).

Our analysis begins with the question whether the Commission properly interpreted and applied Section 8(a) and 8(e) of the Act. If it was correct, then we must decide whether it was proper for the Commission, at least in this case, to reach the merits rather than remand. If it was proper, then the final question is the usual one for our review of the merits: whether the decision of the agency is supported by substantial evidence on the record considered as a whole. 29 U.S.C.A. § 660(a); Ryder Truck Lines, Inc. v. Brennan, 5 Cir. 1974, 497 F.2d 230, 232. We answer all these questions in the affirmative.

First, we turn to the interpretation and application of Sections 8(a) and 8(e). As to Section 8(a), credentials, the Commission held that there is no mandatory requirement for an inspector to present credentials when, as here, the work place is open to the public. Further, the Commission held that even if the requirement is mandatory, it was substantially complied with when the inspector verbally identified himself to the superintendent at the site. Finally, even if there was a technical failure to comply with the statute, it was harmless error to hear the evidence obtained by the investigation because there was preponderant evidence aliunde to support the violation.

As to Section 8(e), the Commission recited in its opinion that it has held the "walkaround" requirement to be directory rather than mandatory. 6 The...

To continue reading

Request your trial
33 practice notes
  • Woods & Rohde, Inc. v. State, Dept. of Labor, No. 2903
    • United States
    • Supreme Court of Alaska (US)
    • June 2, 1977
    ...Butler Apparel Co. v. Secretary of Labor, 519 F.2d 84 (5th Cir. 1975); Accu-Namics, Inc. v. Occupational Safety and Health Review Comm'n, 515 F.2d 828 (5th Cir. 1975); Usery v. Centrif-Air Machine Co., Inc., 424 F.Supp. 959 (N.D. Ga. 1977); Barlow's Inc. v. Usery, 424 F.Supp. 437 (D. Idaho ......
  • Marshall v. C. F. & I. Steel Corp., No. 76-1952
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 6, 1978
    ...F.2d 947, 951-52 (8th Cir. 1977). See also Hartwell Excavating Co. v. Dunlop, 537 F.2d 1071 (9th Cir. 1976); Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 833-34 (5th Cir. 1975), cert. denied,425 U.S. 903, 96 S.Ct. 1492, 47 L.Ed.2d 752 (1976). Here we have a case in which the hazards were of co......
  • Cornell & Co., Inc. v. Occupational Safety and Health Review Com'n, No. 76-2513
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 9, 1978
    ...we turn to the present case. We are reviewing the order of the Commission, not of the ALJ. 29 U.S.C. § 660(a); Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834-35 (5th Cir. 1975), cert. denied, 425 U.S. 903, 96 S.Ct. 1492, 47 L.Ed.2d 752 (1976). Since the Commission allowed the November 4 amen......
  • U.S. v. Adams, No. 77-5151
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 27, 1978
    ...the use of a written form as a "partial record surrogate for oral dialogue between the court and the defendant", Burroughs, 515 F.2d at 828, we did so on the basis of oral dialogues considerably more extensive than that involved here. In the case at bar, unlike Burroughs or Sapp, ......
  • Request a trial to view additional results
33 cases
  • Woods & Rohde, Inc. v. State, Dept. of Labor, No. 2903
    • United States
    • Supreme Court of Alaska (US)
    • June 2, 1977
    ...Butler Apparel Co. v. Secretary of Labor, 519 F.2d 84 (5th Cir. 1975); Accu-Namics, Inc. v. Occupational Safety and Health Review Comm'n, 515 F.2d 828 (5th Cir. 1975); Usery v. Centrif-Air Machine Co., Inc., 424 F.Supp. 959 (N.D. Ga. 1977); Barlow's Inc. v. Usery, 424 F.Supp. 437 (D. Idaho ......
  • Marshall v. C. F. & I. Steel Corp., No. 76-1952
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 6, 1978
    ...F.2d 947, 951-52 (8th Cir. 1977). See also Hartwell Excavating Co. v. Dunlop, 537 F.2d 1071 (9th Cir. 1976); Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 833-34 (5th Cir. 1975), cert. denied,425 U.S. 903, 96 S.Ct. 1492, 47 L.Ed.2d 752 (1976). Here we have a case in which the hazards were of co......
  • Cornell & Co., Inc. v. Occupational Safety and Health Review Com'n, No. 76-2513
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 9, 1978
    ...we turn to the present case. We are reviewing the order of the Commission, not of the ALJ. 29 U.S.C. § 660(a); Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834-35 (5th Cir. 1975), cert. denied, 425 U.S. 903, 96 S.Ct. 1492, 47 L.Ed.2d 752 (1976). Since the Commission allowed the November 4 amen......
  • U.S. v. Adams, No. 77-5151
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 27, 1978
    ...the use of a written form as a "partial record surrogate for oral dialogue between the court and the defendant", Burroughs, 515 F.2d at 828, we did so on the basis of oral dialogues considerably more extensive than that involved here. In the case at bar, unlike Burroughs or Sapp, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT