Chicago Bridge & Iron Co. v. Occupational Safety and Health Review Com'n, No. 75-1163

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before HASTINGS, Senior Circuit Judge, SWYGERT, Circuit Judge, and PERRY; SWYGERT
• Citation: 535 F.2d 371
• Parties: , 4 O.S.H. Cas.(BNA) 1181 CHICAGO BRIDGE & IRON COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and John T. Dunlop, Secretary of Labor, Respondents.
• Docket Number: No. 75-1163
• Decision Date: 10 May 1976

Page 371

535 F.2d 371 35 A.L.R.Fed. 36, 4 O.S.H. Cas.(BNA) 1181 CHICAGO BRIDGE & IRON COMPANY, Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,
and
John T. Dunlop, Secretary of Labor, Respondents. No. 75-1163. United States Court of Appeals,
Seventh Circuit. Argued Sept. 18, 1975.
Decided May 10, 1976.

Page 372

William A. Cromartie, Jeremiah Marsh, Lester Asher, Jonathan T. Howe, Charles L. Michod, Chicago, Ill., D. Lynn Whitt, Oak Brook, Ill., for petitioner.

Michael H. Levin, Robert K. Salyers, U. S. Dept. of Labor, Washington, D. C., for respondent.

Ira J. Smotherman, Jr., Atlanta, Ga., for amici curiae.

Before HASTINGS, Senior Circuit Judge, SWYGERT, Circuit Judge, and PERRY, Senior District Judge. ¹

SWYGERT, Circuit Judge.

This appeal presents the question of whether the failure of a Compliance Safety and Health Officer to meet with Chicago Bridge & Iron Company supervisors or its employee representatives and afford them an opportunity to "walkaround" an inspection of the worksite at which the company was a prime contractor, as required by section 8(e) of the Occupational Safety and Health Act, ² was grounds under the statute for voiding the citations issued to the company as a result of that inspection. The Administrative Law Judge vacated the citations because the walkaround right had not been extended, but his decision was reversed in an opinion by the Occupational Safety and Health Review Commission. The case is before this court pursuant to section 11(a) of the Act on petition of Chicago

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Bridge & Iron for review of the Commission's order. ³

The worksite involved in this case was the nuclear power plant under construction by Commonwealth Edison Company at Zion, Illinois. ⁴ Chicago Bridge & Iron was a prime contractor on the project, but was not contacted by the compliance officer prior to his inspection. The compliance officer instead relied on the project manager for Commonwealth Edison to coordinate a group of employees and employers for the purpose of accompanying him on his inspection tour. The company maintains that the compliance officer during his discussion with the project manager requested that only representatives of Commonwealth Edison, Walsh Construction Company, and a mechanical contractor be present in the inspection party. The Secretary of Labor, on the other hand, states the compliance officer had specified that the selection of employer and employee representatives would be subject to his approval and had understood from his discussion with the Commonwealth Edison project manager that all the employers at the site would be informed of the selection process and the pending inspection. The inspection party finally chosen was composed of representatives of the two largest contractors on the site who had primary control over the entire project and who held themselves out as representing all the employers on the site and employees, mostly shop stewards, who had been drawn from the membership of a union safety committee which had been previously organized to handle safety problems for all on-site employees. The contingent was approved by the compliance officer and the inspection undertaken. ⁵

The inspection took more than five days to complete. Twenty-three employers received citations for violations of the Act. Chicago Bridge & Iron was cited for eight nonserious violations, but was not subjected to any penalty. The company was told to correct the violations within twenty days. When it chose instead to contest the citations, the Secretary filed a formal complaint. The company moved to dismiss on the grounds that there had been no walkaround right afforded to it or its employees as required in the Act.

Chicago Bridge & Iron has argued that the failure of the compliance officer to ensure that this right was offered to it and its employees during the inspection of the worksite rendered the citations void ab initio. In support of this argument, it notes that the terms of the statute are mandatory the representative shall be given an opportunity to accompany the Secretary; that this particular provision in the Act provoked a great deal of conflict, evidenced in the legislative history, which was resolved by adopting the absolute language; and that the Secretary's own regulations recognize the right as mandatory. ⁶

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The company also argues that there are policy reasons why a denial of the walkaround right should result in the citations being voided. It asserts that the adequacy of the inspection will be endangered if the right is not afforded to employers and their employees' representatives, and the potential for on-the-spot resolutions of actual disputes will be foreclosed. It also predicts that unnecessary conflict will arise if employers are excluded from the site during the inspection since if they do not observe the violations they will be less likely to voluntarily make the necessary corrections without inducement from a citation. The company further argues that to allow the Secretary or his agent to bypass the right will permit the inspection process to operate on employers in an inherently prejudicial manner and will allow or encourage discriminatory practices by permitting the exclusion of employer representatives although employee representatives are included in the inspection parties. ⁷

The Secretary has countered these arguments by asserting that there has been substantial compliance with the provision of the Act establishing the walkaround right. He argues that the failure to include the representatives of Chicago Bridge & Iron and its employees was irrelevant on the facts of this case in that no prejudice has been demonstrated by the company as a result of the oversight. The Secretary's argument focuses on the "preventative purposes" of the Act and concludes that strict adherence to the walkaround right in cases which involve huge construction sites with dozens of contractors and subcontractors will retard the enforcement procedures provided by the Act. ⁸ The Secretary's argument relies in large part on his assertion that the walkaround right was incorporated in the legislation in order to aid his inspections of the worksites, not to hinder them as would be the result should the compliance officer have to include representatives from all the employers involved in projects like the nuclear power plant site in the instant case.

The Secretary then urges this court to construe the "shall" in section 8(e) as conditional by looking to the legislative history. He does not suggest that the language of the statute is directory, but rather attempts to reframe the issue by arguing that there is no absolute right conferred by the provision the denial of which would deprive his

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office of jurisdiction to issue citations. ⁹ The Secretary argues that if there is substantial compliance with the walkaround provision and no prejudice has been demonstrated by the employer, the citations should stand. ¹⁰

The Secretary in his attempt to reframe the issue before this court deviates from the reasoning and conclusions reached by the Review Commission. The Commission's decision indicated that the majority believed the walkaround right to be directory. The Secretary has argued on appeal that the Commission actually rested its decision on the fact that there was no prejudice to the company in this case and that there had been substantial compliance with the terms of the statute. He supports this argument by referring to that part of the Commission's opinion which focuses on the failure of Chicago Bridge & Iron to demonstrate that any prejudice resulted because of the failure of the compliance officer to extend it the walkaround right.

In view of the clear language of the statute which is given additional force by the principle of administrative law which dictates that where an administrator must follow the rules promulgated pursuant to the authority of the statute he is charged with enforcing, Madden v. Int'l Hod Carriers, 277 F.2d 688 (7th Cir. 1960); Madden v. Int'l Organization, 259 F.2d 297 (7th Cir. 1958), we can reach no other conclusion, but that the dictates of section 8(e) of the Act are mandatory. In...