Clarkson Const. Co. v. Occupational Safety and Health Review Com'n

• Decision Date: 18 February 1976
• Docket Number: No. 75--1070,75--1070
• Citation: 531 F.2d 451
• Parties: 3 O.S.H. Cas.(BNA) 1880, 1975-1976 O.S.H.D. ( 20,317 CLARKSON CONSTRUCTION COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 451

531 F.2d 451

3 O.S.H. Cas.(BNA) 1880, 1975-1976 O.S.H.D. ( 20,317

CLARKSON CONSTRUCTION COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Secretary of Labor, Respondents.

No. 75--1070.

United States Court of Appeals, Tenth Circuit.

Argued Sept. 17, 1975.

Decided Jan. 21, 1976.

Rehearing Denied Feb. 18, 1976.

Robert A. Babcock, Margolin & Kirwan, Kansas City, Mo. (G. Steven Ruprecht, Margolin & Kirwan, Kansas City, Mo., on the brief), for petitioner.

Dennis K. Kade, Atty., U.S. Dept. of Labor (William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Asst. Counsel for App. Litigation, and Allen H. Feldman, Asst. Counsel for App. Litigation, on the brief), for Secretary of Labor.

Before HILL, SETH and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

Clarkson Construction Company has petitioned for review of an order of the Occupational Safety and Health Review Commission issued against it November 29, 1974. Section 11(a) of the Occupational Safety The order for which review is sought is one which the Administrative Law Judge held to be supported by the weight of the evidence and to establish that the applicable regulation, 29 C.F.R. § 1926.601(b)(4), had been violated. A dump truck had backed up along and shoulder of a highway and had struck and killed a workman. A divided Commission upheld the judge's ruling. The disputed issues which the Commission resolved adversely to Clarkson included:

and Health Act of 1970 (OSHA) is the applicable procedural and jurisdictional provision (29 U.S.C. Sec. 660(a)).

1. The ruling that Clarkson was responsible for the acts of the truck driver.

2. The holding that the area where the employee was struck constituted a work place.

3. The ruling that ownership and sovereignty at the place of injury were not required.

4. That which held that the death of the employee resulted from failure to furnish a safe work place and failure to warn the employee of the dangers to his life or to prevent foreseeable injuries.

SANCTIONS AUTHORIZED

Various sanctions are provided by the Act. Thus for a slight violation a notice can be issued. For so-called nonserious violations, the Secretary issues a citation and may propose a penalty of up to $1,000. This is pursuant to 29 U.S.C. Sec. 659(a) and Sec. 666(b). For so-called serious violations, those which create a substantial probability that death or serious physical harm could result, the Secretary must issue a citation and must propose a civil penalty of up to $1,000. This is pursuant to 29 U.S.C. Sec. 666(b), (j). For willful or repeated violations the Secretary may assess a civil penalty of up to $10,000, 29 U.S.C. Sec. 666(a). For willful violations which cause death to an employee, the proceeding is a criminal one and a fine of not more than $10,000 or imprisonment for not more than six months is provided in 29 U.S.C. Sec. 666(e).

PROCEEDINGS AT BAR

The case at bar is brought pursuant to the serious violation category, 29 U.S.C. Sec. 666(b), (j), whereby the Secretary issues a citation and must propose a civil penalty of up to $1,000. The employer, of course, has the right to challenge the citation or the sanction imposed, and in this instance Clarkson did so.

The hearing is before one of the Administrative Law Judges, who is empowered to affirm, modify or vacate the Secretary's citation or proposed penalty. The administrative review procedures then follow and the matter is finally reviewable by the court of appeals. As we have already noted, the judge and the Commission affirmed the citation of the Secretary, although the chairman of the Commission dissented.

The evidence relied on to support the citation was that Knight's dump truck had an obstructed view of the rear and was not equipped with a reverse signal alarm. It also showed that prior to the accident Knight backed his vehicle over 150 feet on the highway's south shoulder and he did so without an observer at the rear. Knight admitted that he and other drivers had repeatedly backed up without having observers and had done so in the presence of Clarkson's job superintendents. There is evidence from Clarkson's superintendent that drivers had been warned not to back up without observers. He also said that they had not seen anyone do so. Seemingly, however, the Administrative Law Judge accepted Knight's testimony as true. After the incident, Clarkson ordered all trucks to be equipped with reverse signal alarms.

The Commission in affirming the decision of the Administrative Judge ruled that its disposition was controlled by its prior decision in Secretary of Labor v. Southeast Contractors, Inc., OSHRC Docket No. 1445, 1973--74 OSHD P17,787 (1974).

Chairman Moran, who had dissented in Southeast Contractors, dissented here on similar grounds: Knight, the offending truck driver, was not an employee of Clarkson and that an employer relationship was Subsequently, the decision (of the majority) in Southeast was versed in a very brief per curiam opinion by the Court of Appeals for the Fifth Circuit. Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir. 1975). The Fifth Circuit rejected the majority reasoning and adopted the conclusion and reasoning of Chairman Moran. The court's opinion said that since Southeast was not the employer, it was not 'using' the vehicle within the meaning of the word in 29 C.F.R. Sec. 1926.601(b)(4). ¹

necessary; that Advance ^* had the power to control Knight; and that Clarkson did not.

On this appeal Clarkson contends that the enforcement procedures are unconstitutional in that:

1. The civil penalty imposed is penal in nature and not remedial or regulatory in effect;

2. The procedures are contrary to due processes of the Fifth Amendment;

3. There is a violation of the Sixth Amendment by denying Clarkson the speedy and public trial and the right to an impartial jury and the right to confront and cross-examine witnesses; or

4. In the alternative, it is urged that the procedure, if civil, is a violation of the Seventh Amendment.

Clarkson's non-constitutional law contentions are:

5. That it was not an employer 'using' motor vehicle equipment within the terms of intent of 29 C.F.R. Sec. 1926.601(b)(4);

6. That the violation did not occur on a work site of Clarkson; that it took place instead on a public road outside the limits of the work site;

7. That the penalty was arbitrary and capricious.

I. THE CONSTITUTIONAL ISSUES

A. We disagree with the contention of Clarkson that the civil penalty assessed against it under 29 U.S.C. Sec. 666(b) is a penal sanction imposed without those procedures demanded in the Sixth Amendment. The Fifth Circuit in the case referred to in Southeast Contractors, supra, namely Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 1000--11 (5th Cir. 1975), in an opinion by Chief Judge Brown, thoroughly considered all of these arguments and issues and reached the conclusion that the penalty in question was civil and valid. Accord: Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3rd Cir. 1974), aff'd en banc, 519 F.2d 1215 (1975).

B. Nor do we consider the sanction considered as a civil one to have been in violation of the Seventh Amendment right to a jury trial. This is not an action at common law within the meaning of the Seventh Amendment and hence no jury trial right arises. See the Supreme Court's decision in Curtis v. Loether, 415 U.S. 189, 194, 94 S.Ct. 1005, 1008, 39 L.Ed.2d 260 (1974), wherein the Court said:

The Seventh Amendment is generally inapplicable in administrative proceedings, where jury trials would be incompatible with the whole concept of administrative adjudication and would substantially interfere with the (Agency's) role in the statutory scheme.

It was within the power of Congress to choose an administrative process for the enforcement of the safe and healthful working conditions objective of the Act and it is not for us to say that Congress exercised its judgment improperly. See Atlas Roofing Co., supra; Frank Irey, Jr., supra, and Beall Construction Co. v. OSHRC and Brennan, 507 F.2d 1041 (8th Cir. 1974).

C. Nor do we agree with Clarkson's contention that the statutory program chills its due process right to judicial review of the citation which the Secretary enters, whereby the Secretary proposes abatement requirements and proposes monetary penalties and does so ex parte. Clarkson also complained that the Secretary assesses per-day non-abatement penalties if in his view the employer was not contesting the citation in good faith and further in authorizing the Commission to increase proposed penalties upon review if an employer contests. The answer to the first contention is that the employer does have the opportunity to contest the Secretary's action before the same becomes final. As we view it, this satisfies due process. See, e.g., Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). The other side of the argument is that swift and effective enforcement is essential to efficient enforcement. Due process does not require that there be a right to interminably litigate the issue (before, during and after). Rather, Congress may provide for a judicial review which demands quick appeal. See Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948); Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944).

D. The answer to the contention that the provision for assessment of per-day non-abatement penalties where the employer is not contesting in good faith is that this again is an effort to eliminate meritless review. The action taken is always subject to review, reversal and a stay where the same is justified. So, on its face, it is not invalid. As applied, it could be.

F. We also disagree with the argument that it is unconstitutional for the Commission to increase the penalties. Here again there remains a right to review. The imposition of...