Austin Road Co. v. Occupational Safety and Health Review Com'n, Nos. 78-2986

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before BROWN, GOLDBERG and POLITZ; POLITZ; JOHN R. BROWN
• Citation: 683 F.2d 905
• Parties: 10 O.S.H. Cas.(BNA) 1943, 1982 O.S.H.D. (CCH) P 26,193 AUSTIN ROAD COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Raymond J. Donovan, Secretary of Labor, Respondents.
• Decision Date: 25 August 1982
• Docket Number: 81-4050,Nos. 78-2986

Page 905

683 F.2d 905 10 O.S.H. Cas.(BNA) 1943, 1982 O.S.H.D. (CCH)
P 26,193 AUSTIN ROAD COMPANY, Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Raymond
J. Donovan, Secretary of Labor, Respondents. Nos. 78-2986, 81-4050. United States Court of Appeals,
Fifth Circuit. Aug. 25, 1982.

Page 906

Jenkens & Gilchrist, Steven R. McCown, Dallas, Tex., for petitioner.

Ann D. Nachbar, Dennis K. Kade, U. S. Dept. of Labor, Washington, D. C., Allen H. Sachsel, Atty., Dept. of Justice, Washington, D. C., for respondents.

Petitions for Review of an Order of the Occupational Safety and Health Review Commission.

Before BROWN, GOLDBERG and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

These petitions for review of an order of the Occupational Safety and Health Review Commission (commission) pose the threshold issue whether the record establishes that Austin Road Company is an employer within the meaning of 29 U.S.C. § 652(5), ¹ a requisite for the commission's exercise of jurisdiction. Concluding that the Secretary of Labor failed to demonstrate the applicability of the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678, and that the commission's ruling does not comport with the procedural requirements of 5 U.S.C. § 557(c), ² we grant review and deny enforcement.

Page 907

Facts

Austin Road Company is a Texas contractor engaged in building residential streets, storm drains, sanitary sewers, and water transmission lines. In 1974, the company received and did not contest a non-serious citation, issued under 29 C.F.R. § 1926.652(c), for its failure to slope the sides of a trench at a job site. In 1977, it was cited for a serious, repeated violation of 29 C.F.R. § 1926.652(c) for failing to slope a trench. Austin Road challenged jurisdiction and, on the merits, denied the offense. After a hearing, an Administrative Law Judge upheld the citation but reduced the monetary penalty from $1,620 to $950. On review, the commission remanded for reconsideration whether the violation was properly characterized as "repeated" in light of its intervening decision in Potlatch Corporation, 1979 CCH OSHD P 23,294. On remand, the ALJ found that the violation constituted a repeat violation, a finding affirmed by the commission. Appeals from the initial order of the commission (our docket number 78-2986) and the order after remand (our docket number 81-4050) were consolidated.

We agree with our colleagues who have previously considered the question that, in enacting the Occupational Safety and Health Act, Congress intended to exercise the full extent of the authority granted by the commerce clause of the Constitution. See, e.g., Godwin v. Occupational Safety & Health Review Comm'n, 540 F.2d 1013 (9th Cir. 1976); United States v. Dye Construction Co., 510 F.2d 78 (10th Cir. 1975); Brennan v. Occupational Safety & Health Review Comm'n, 492 F.2d 1027 (2d Cir. 1974). Accordingly, an employer comes under the aegis of the Act by merely affecting commerce; it is not necessary that the employer be engaged directly in interstate commerce. See, e.g., Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942); United States v. Wrightwood Dairy, 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942); United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941). See also J. Nowak, R. Rotunda, & J. Young, Handbook on Constitutional Law 151-56 (1978).

When the issue is contested, the burden of showing that the employer's activities affect interstate commerce rests upon the administrative representative involved-in the case at bar, the Secretary of Labor. The burden is, in the usual case, modest, if indeed not light. However, in the instant case, the Secretary experienced considerable difficulty with this essential element. As the ALJ noted:

Compliance Officer Gerald K. Forrester testified, inconclusively, that Austin was using a Bucyrus Erie hydraulic boom crane which he believed was made in Bucyrus, Michigan. (Tr. 28). He also testified that the sewer line was to serve a new industrial complex.

(Emphasis in original.) As recognized by the ALJ, this evidence "would hardly be sufficient to carry the Secretary's burden of proof that Austin's business affected commerce." We agree. The ALJ looked to other evidence "to satisfy the jurisdictional requirements." Specifically, the ALJ referred to the testimony of Henry M. Cornelius, manager of loss control for Austin Road, and made these observations:

Mr. Cornelius gave this picture of the corporate structure: Respondent is one of several corporations, including Austin Bridge Co., Austin Paving Co., Austin Commercial and Austin Power, which have...