Brooks v. Rebarco, Inc., 8810SC197

Citation91 N.C.App. 459,372 S.E.2d 342
Decision Date04 October 1988
Docket NumberNo. 8810SC197,8810SC197
CourtCourt of Appeal of North Carolina (US)
Parties, 1988 O.S.H.D. (CCH) P 28,368 John C. BROOKS, Commissioner of Labor of North Carolina, Complainant, v. REBARCO, INC., Respondent.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Melissa L. Trippe, Raleigh, for complainant.

Johnson, Gamble, Hearn & Vinegar by Richard J. Vinegar and Kathleen M. Waylett, Raleigh, for respondent.

SMITH, Judge.

Briefly, we outline the construction practices which constitute the basis of the formwork and shoring violation involved in this case. At the time of the incident, respondent was in the process of constructing concrete columns. This process involves erecting a hollow steel-framed form into which concrete is poured. The form, in this case a 14-foot-high, one-foot-wide, 400-pound form, was set in place by a crane. It was placed over steel rebar (cylindrical steel rods) which protruded from the floor and over wire mesh both of which extended the length of the form. After the form was set in place by a crane, a worker would scale the side of the form, attach his safety belt, and nail into the form one of several four-inch by four-inch (4"' X 4"') braces. The worker would then unhook the crane and nail into the form the remainder of the braces. The process of securing these braces took only a few minutes to complete. The braces were attached to provide stability and assure that the form was perfectly perpendicular to the floor. Additional workers were stationed at the base of the form to stabilize the column and provide assistance to the worker on the form. The Review Board found that respondent's practice of having an employee climb the form and unhook the crane before all the braces were in place rendered the form temporarily unstable and exposed employees to a hazard of the form tipping.

Respondent brings forth as its sole assignment of error the trial court's affirmance of the Review Board's decision upholding the safety violations. It raises the following four issues in its brief:

1. Whether the Board properly interpreted the phrase "recognized hazard" as that phrase is used in G.S. 95-129(1) ...;

2. Whether there is substantial evidence in view of the entire record ... to affirm the alleged ... violation under G.S. 95-129(1);

3. Whether there is substantial evidence in view of the entire record ... to support the Board's affirmance of a ... violation of 29 CFR 1926.402(a)(4); and

4. Whether the decision of the Board is arbitrary and capricious.

Unless provided for by specific statute, judicial review of administrative decisions is governed by Chap. 150B, Art. 4, G.S. 150B-43 et seq. The standard for review is set forth in G.S. 150B-51(b) and states in pertinent part:

[T]he court reviewing a final decision may affirm ... or remand.... It may also reverse or modify the agency's decision if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are ...

(4) Affected by other error of law;

(5) Unsupported by substantial evidence ... in view of the entire record as submitted; or

(6) Arbitrary or capricious.

The proper standard to be applied depends on the issues presented on appeal. Our courts have held that if it is alleged that an agency's decision was based on an error of law then a de novo review is required. Brooks, Comr. of Labor v. Grading Co., 303 N.C. 573, 281 S.E.2d 24 (1981). " 'When the issue on appeal is whether a state agency erred in interpreting a statutory term, an appellate court may freely substitute its judgment for that of the agency and employ de novo review.' " Id. at 580-81, 281 S.E.2d at 29, quoting Savings and Loan League v. Credit Union Comm., 302 N.C. 458, 465, 276 S.E.2d 404, 410 (1981). A review of whether an agency decision is supported by sufficient evidence requires the court to apply the "whole record" test. Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977). The "whole record" test is also applied when the court considers whether an agency decision is arbitrary and capricious. High Rock Lake Assoc. v. Environmental Management Comm., 51 N.C.App. 275, 276 S.E.2d 472 (1981).

[T]he 'whole record' rule requires the court, in determining the substantiality of evidence supporting the Board's decision, to take into account whatever in the record fairly detracts from the weight of the Board's evidence. Under the whole evidence rule, the court may not consider the evidence which in and of itself justifies the Board's result without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn.

Thompson, 292 N.C. at 410, 233 S.E.2d at 541.

Complainant cites G.S. 95-129(1) as the basis for its citation against respondent for a serious violation. This statute, often referred to as "the general duty clause," states that "[e]ach employer shall furnish to each of his employees conditions of employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or serious physical harm." This statute closely parallels the federal general duty clause found at 29 U.S.C.A. Section 654(a)(1). Respondent correctly points out in its brief that North Carolina courts have yet to specifically address the interpretation of this clause; therefore, because of the similarity between the state and federal provisions, we turn to federal decisions for guidance. See Johnson v. Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980) (Court held that similarity between federal and state FTC statutory provisions allowed state court to seek guidance from federal decisions). Federal courts have held that to successfully prosecute a violation under the "general duty clause" a complainant must show that an employer failed to render its workplace free of a hazard which was "recognized" and causing or likely to cause death or serious physical harm. National Rlty. & C. Co., Inc. v. Occupational S. & H.R. Com'r., 489 F.2d 1257 (D.C.Cir.1973).

Respondent first argues that the Review Board's erroneous interpretation of a "recognized hazard" resulted in the application of an inappropriate standard. Incorrect statutory interpretation by an agency constitutes an error of law under G.S. 150B-51(b) and allows this court to apply a de novo review. Brooks supra. A "recognized hazard" has been defined as one about which the employer knew or one known about within the industry. Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2nd Cir.1977). This definition has been conditioned upon a recognition that not all hazardous conditions can be prevented and that Congress, by the absolute terms of the "general duty clause," did not intend to impose strict liability upon employers. Only preventable hazards must be eliminated. National Rlty. & C. Co., Inc., supra. Thus, "a hazard is 'recognized' only when the [Commissioner] demonstrates that feasible measures can be taken to reduce materially the likelihood of death or serious physical harm resulting to employees." Babcock & Wilcox Co. v. Occupational Safety, Etc., 622 F.2d 1160, 1164 (3rd Cir.1980).

In its decision, the Review Board in this case concluded: "[w]hether or not a hazard exists is to be determined by the standard of a reasonable prudent person. Industry custom and practice are relevant and helpful but are not dispositive. If a reasonable and prudent person would recognize a hazard, the industry cannot eliminate it by closing its eyes." It is respondent's contention that the standard adopted by the Review Board is not the proper standard to apply when considering whether a "recognized hazard" exists under G.S. 95-129(1). Respondent argues that a "recognized hazard" is present when the industry as a whole deems it so.

We conclude that the Review Board applied the correct standard to determine whether respondent failed to render its workplace free of a "recognized hazard." In Daniel Construction Co. v. Brooks, 73 N.C.App. 426, 326 S.E.2d 339 (1985), a case involving the violation of a specific federal safety standard, our court, after reviewing relevant federal decisions, applied a "reasonable man" standard in considering the safety violation and declared:

In order to establish that Daniel violated 29 CFR 1926.28(a) as charged in the citation, OSH had to prove that under the circumstances which existed a reasonably prudent employer would have recognized that carrying heavy objects above their unprotected feet was hazardous to the employees doing the carrying and would require them to wear safety toe shoes. Though this is but an adaptation of the "reasonable man" standard of the common law, neither this Court nor our Supreme Court, according to our research, has yet stated the factors that may be considered in applying the standard in cases like this. For example, the Fifth Circuit has apparently interpreted 29 CFR 1926.28(a) 'to require only those protective measures which the knowledge and experience of the employer's industry, which the employer is presumed to share, would clearly deem appropriate under the circumstances.' Under this interpretation, as we read it, each industry is permitted to evaluate the hazards associated with its own operations and determine what, if anything, to do about them. But as applied by the First and Third Circuits, the practice in the industry is but one circumstance to consider, along with the other circumstances, in determining whether a practice meets the reasonable man standard. These courts have noted, quite properly we think, that equating the practice of an industry with what is reasonably safe and proper can result in outmoded, unsafe standards being followed to the detriment of workers in that industry. This latter application is much the sounder, we think, and we adopt and employ it in this case.

Id. at 430-31, 326 S.E.2d at 342. (citations omitted) (emphasis in original). We are...

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