Cedar Const. Co. v. Occupational Safety and Health Review Com'n, 77-1538

Decision Date20 October 1978
Docket NumberNo. 77-1538,77-1538
Parties, 6 O.S.H. Cas.(BNA) 2010, 1978 O.S.H.D. (CCH) P 23,082 CEDAR CONSTRUCTION COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Secretary of Labor, F. Ray Marshall, Respondents.
CourtU.S. Court of Appeals — District of Columbia Circuit

Thomas J. Monaghan, Omaha, Neb., for petitioner.

John A. Amodeo, Atty., Dept. of Labor, Washington, D. C., a member of the bar of the Supreme Court of New Jersey pro hoc vice by special leave of the Court with whom Allen H. Feldman, Atty., Occupational Safety and Health Review Commission, Washington, D. C., was on the brief for respondent.

Also John A. Bryson and Michael H. Levin, Attys., Dept. of Labor, Washington, D. C., entered appearances for respondent.

Before McGOWAN and ROBB, Circuit Judges, and JONES, * United States Senior District Judge for the District of Columbia.

Opinion PER CURIAM.

PER CURIAM:

Petitioner in this direct review proceeding challenges an order of the Occupational Safety and Health Review Commission (the Commission) finding that petitioner "willfully" violated two Occupational Safety and Health Administration (OSHA) trenching regulations.

Petitioner is a Nebraska corporation in the business of digging trenches and installing sewer and utility pipes. On May 17, 1974, one of its employees was killed by a cave-in of a trench it was excavating along Cornhusker Highway in Lincoln, Nebraska. Investigation revealed that groundwater had eroded the loose soil at the bottom of the 15-foot-deep trench, weakening its foundations, and that vibrations from the heavy traffic along nearby Cornhusker Highway had caused the more cohesive soil above the 13-foot depth to slab off and fall into the trench. Three days after the fatality, an OSHA compliance officer inspected the site. The Secretary of Labor subsequently cited Petitioner for two willful violations of Section 5(a) of the Occupational Health and Safety Act, 29 U.S.C. § 654(a)(2), for failure to comply with the safety standards at 29 C.F.R. §§ 1926.651(h) and 1926.652(e). 1 The Secretary also issued a Notification of Proposed Penalty in the amount of $4,750 for each violation.

Petitioner contested the citations before an Administrative Law Judge who, on August 27, 1975, found that it had willfully violated both the cited standards and assessed a penalty of $9,500. The ALJ's findings of willful violations were upheld by the full Commission, Secretary of Labor v. Cedar Construction Co., OSAHRC Doc. No. 10929 (April 22, 1977), but because the Commission believed the two charges were duplicative, it reduced the penalty to $4,750.

Both parties urge us, as an initial matter, to rule on a purported conflict among the Circuits as to the meaning of "willful" in subsection (a) of 29 U.S.C. § 666, the statute that sets out the penalty structure for violations of OSHA regulations. 2 The majority view, so it is said, is that espoused by the Secretary of Labor and the Commission: a willful violation is "an act done voluntarily with either an intentional disregard of, or plain indifference to, the Act's requirements." General Electric Co., (1977) 3 Empl. Safety & Health Guide (CCH) (1977-1978 Occup. Safety & Health Dec.) P 21,853 (May 19, 1977); Kent Nowlin Constr. Inc., (1977) 3 Empl. Safety & Health Guide (CCH) (1977-1978 Occup. Safety & Health Dec.) P 21,550 (Feb. 15, 1977). This standard has been endorsed by the Eighth Circuit, Western Waterproofing Co., Inc. v. Marshall, 576 F.2d 139, 142-43 (8th Cir. 1978), and similar approaches have been adopted by the Sixth, Fourth, Tenth, and First Circuits. Empire-Detroit Steel Division v. OSHRA, 579 F.2d 378, 385 (6th Cir. 1978), Quoting United States v. Consolidation Coal Co., 504 F.2d 1330, 1335 (6th Cir. 1974) (act is willful if "done knowingly and purposely" by someone who, "having a free will or choice, either intentionally disobeys the standard or recklessly disregards its requirements"); Intercounty Contr. Co. v. OSHRA, 522 F.2d 777, 779-80 (4th Cir. 1975), Cert. denied, 423 U.S. 1072, 96 S.Ct. 854, 47 L.Ed.2d 82 (1976) (knowing choice not to comply with OSHA regulations is willful); United States v. Dye Constr. Co., 510 F.2d 78, 81 (10th Cir. 1975) (act is willful "if done knowingly and purposely by an employer who, having a free will or choice, either intentionally disregards the standard or is plainly indifferent to its requirement"); F.X. Messina Constr. Corp. v. OSHRC, 505 F.2d 701, 702 (1st Cir. 1974) ("a conscious, intentional, deliberate, voluntary decision, . . . regardless of a venial motive, properly is described as willful").

Standing in supposedly sharp contrast to these decisions is the minority approach, followed only in the Third Circuit, that "(w)illfulness connotes defiance or such reckless disregard of consequences as to be equivalent to a knowing, conscious, and deliberate flaunting of the Act. Willful means more than merely voluntary action or omission it involves an element of obstinate refusal to comply." Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3rd Cir. 1974), Aff'd en banc, 519 F.2d 1215 (3rd Cir. 1975), Aff'd on other grounds, sub nom. Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977); See also Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3rd Cir. 1975).

While there may be a difference in emphasis in the Third Circuit's approach, we do not see that it rises to the level of a "conflict" among the Circuits; indeed the two approaches are very likely to yield the same results in particular cases. Someone acts "obstinate(ly)" when he "firmly and . . . perversely adher(es) to (his) purpose, opinion, etc. (and does) not yield ( ) to argument, persuasion, or entreaty." AMERICAN COLLEGE DICTIONARY 837 (1962). Under this definition, intentional disregard of, or plain indifference to, OSHA regulations could well be considered an "obstina...

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    ...construction regulation); Kent Nowlin Constr. Co. v. OSHRC, 593 F.2d 368 (10th Cir. 1979) (trenching regulations); Cedar Constr. Co. v. OSHRC, 587 F.2d 1303 (D.C.Cir.1978) (trenching regulations); Intercounty Constr. Co. v. OSHRC, 522 F.2d 777 (4th Cir. 1975), cert. denied, 423 U.S. 1072, 9......
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    ...contend that it was entitled to rely on its lack of prior violations to undermine a finding of willfulness. See Cedar Constr. Co. v. OSHRC, 587 F.2d 1303, 1306 (D.C. Cir. 1978); cf. Herman v. Palo Group Foster Home, Inc., 183 F.3d 468, 473 (6th Cir. 1999); National Steel and Shipbldg. Co. v......
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    ...595 F.2d 309, 318 (5th Cir.1979); Kent Nowlin Constr. Co. v. OSHRC, 593 F.2d 368, 372 (10th Cir.1979); Cedar Constr. Co. v. OSHRC, 587 F.2d 1303, 1305 (D.C.Cir.1979) (per curiam); Empire-Detroit Steel Div. v. OSHRC, 579 F.2d 378, 384-85 (6th Cir.1978); Western Waterproofing Co., Inc. v. Mar......
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3 books & journal articles
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    • American Criminal Law Review No. 58-3, July 2021
    • July 1, 2021
    ...607 F.2d 311, 313–16 (9th Cir. 1979); Kent Nowlin Constr. Co. v. OSHRC, 593 F.2d 368, 372 (10th Cir. 1979); Cedar Constr. Co. v. OSHRC, 587 F.2d 1303, 1305 (D.C. Cir. 1979) (per curiam); Empire-Detroit Steel Div. v. OSHRC, 579 F.2d 378, 384–85 (6th Cir. 1978); Intercounty Constr. Co. v. OSH......
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    ...607 F.2d 311, 313–16 (9th Cir. 1979); Kent Nowlin Constr. Co. v. OSHRC, 593 F.2d 368, 372 (10th Cir. 1979); Cedar Constr. Co. v. OSHRC, 587 F.2d 1303, 1305 (D.C. Cir. 1979) (per curiam); Empire-Detroit Steel Div. v. OSHRC, 579 F.2d 378, 384–85 (6th Cir. 1978); Intercounty Constr. Co. v. OSH......
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    ...607 F.2d 311, 313–16 (9th Cir. 1979); Kent Nowlin Constr. Co. v. OSHRC, 593 F.2d 368, 372 (10th Cir. 1979); Cedar Constr. Co. v. OSHRC, 587 F.2d 1303, 1305 (D.C. Cir. 1979) (per curiam); Empire-Detroit Steel Div. v. OSHRC, 579 F.2d 378, 384–85 (6th Cir. 1978); Intercounty Constr. Co. v.......

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