Commissioner of Labor v. Weekley Homes, No. COA03-1634.

• Docket Nº: No. COA03-1634.
• Citation: 609 S.E.2d 407, 169 NC App. 17
• Case Date: March 15, 2005
• Court: Court of Appeal of North Carolina (US)

609 S.E.2d 407
169 NC App. 17

COMMISSIONER OF LABOR OF THE STATE OF NORTH CAROLINA, Respondent,
v.
WEEKLEY HOMES, L.P., d/b/a David Weekley Homes, Petitioner

No. COA03-1634.

Court of Appeals of North Carolina.

March 15, 2005.

Attorney General Roy Cooper, by Assistant Attorney General Jane Ammons Gilchrist and Assistant Attorney General Linda Kimbell, for the State.

609 S.E.2d 410

Maupin Taylor, P.A., by Michael C. Lord, and Rader & Campbell, by Robert E. Rader, Jr., Dallas, TX, for petitioner

609 S.E.2d 409

MARTIN, Chief Judge

Petitioner, Weekley Homes, L.P. (Weekley), appeals from a citation issued by the North Carolina Department of Labor on 21 May 1999 alleging a violation of the Occupational Safety and Health Standards. Weekley, a general contractor, coordinated subcontractors, materials and homeowners for thirty-eight houses under construction in a subdivision in Huntersville, North Carolina. For this project, Weekley employed two "builders" who maintained the construction schedule for six to ten houses at a time. The builders spent seventy to eighty percent of their time in the job site trailer coordinating approximately one hundred subcontractors and delivery of materials for the project.

On 17 March 1999, Lee Peacock (Peacock), a Safety Compliance Officer in the North Carolina Department of Labor, observed from a public road individuals working on a steep pitch roof over six feet from the ground without fall protection. After receiving permission from his supervisor, Peacock conducted an inspection of the job site on 18 March 1999. He observed three houses where employees of a Weekley subcontractor were working without fall protection.

The Department of Labor cited Weekley for a violation of 29 C.F.R. § 1926.20(b)(2) for failure to conduct "[f]requent or regular inspections of the jobsite . . . as part of an accident prevention program." On 5 December 2000, after hearing evidence and reviewing the parties' briefs, an Administrative Law Judge with the Safety and Health Review Board entered an order affirming the citation. After Weekley petitioned for review, the North Carolina Safety and Health Review Board affirmed the order. Weekley petitioned for judicial review and after considering the record, the briefs and the arguments of the parties the Superior Court affirmed the order of the review board. Weekley gave notice of appeal to this Court.

I.

As an initial matter we address respondent-appellee's motion to dismiss petitioner's appeal for violation of the North Carolina Rules of Appellate Procedure. Respondent points out numerous violations in petitioner's brief including, most importantly, that the questions presented for argument do not refer to the pertinent assignments of error in the record as required by N.C. R.App. P. 28(b)(6) (2004). "The Rules of Appellate Procedure are mandatory and failure to follow the rules subjects an appeal to dismissal." Wiseman v. Wiseman, 68 N.C.App. 252, 255, 314 S.E.2d 566, 567-568 (1984). Nevertheless, in our discretion, we will consider petitioner's arguments on the merits. N.C. R.App. P. 2 (2004).

Respondent-appellee also moves the Court to strike Appendixes 2, 3, 4 and 5 of petitioner's brief pursuant to N.C. R.App. P. 37(a) because the content of these appendixes was not part of the printed record on appeal nor were they offered into evidence. N.C. R.App. P. 28(d)(1)(c) allows the attachment of "relevant portions of statutes, rules, or regulations, the study of which is required to determine questions presented in the brief" as an appendix. Petitioner has attached as Appendix 2, portions of the Federal OSHA Compliance Operations Manual (1972); as Appendix 3, portions of the North Carolina Operations Manual (1973); as Appendix 4, portions of the North Carolina Operations Manual (1993); and as Appendix 5 an excerpt from S.B. 575. Since Appendixes 2, 3 and 4 fall within those items permitted by Rule 28, we deny respondent's motion to strike these Appendixes. However, we grant respondent's motion to strike Appendix 5.

II.

The standard of review of an administrative agency's decision on judicial review is determined by the issues presented on appeal. ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997). A reviewing court:

may affirm the decision of the agency or remand . . . for further proceedings. It

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may also reverse or modify the agency's decision, or adopt the administrative law judge's decision if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or

(6) Arbitrary, capricious, or an abuse of discretion.

N.C. Gen.Stat. § 150B-51(b) (2003).

Where the party alleges the agency violated subsections one through four of N.C. Gen.Stat. § 150B-51, the court engages in de novo review, reviewing for errors of law. Dorsey v. UNC-Wilmington, 122 N.C.App. 58, 62, 468 S.E.2d 557, 559, cert. denied, 344 N.C. 629, 477 S.E.2d 37 (1996). However, when the substance of the allegation implicates subsections five or six, the reviewing court employs the "whole record" test. Id."The `whole record' test requires the court to examine all competent evidence comprising the `whole record' in order to ascertain if substantial evidence therein supports the administrative agency decision." Id. at 62, 468 S.E.2d at 560. Substantial evidence is defined as evidence "which a reasonable mind would regard as adequately supporting a particular conclusion." Id. The appellate court examines the superior court's order for errors of law by "(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly." ACT-UP Triangle, 345 N.C. at 706, 483 S.E.2d at 392 (quoting Amanini v. N.C. Dept. of Human Resources, 114 N.C.App. 668, 675, 443 S.E.2d 114, 118-119 (1994)).

In this case, petitioner alleged the agency's decision was affected by error of law and was unsupported by substantial evidence. The superior court properly employed both standards of review and concluded the review board's findings were supported by substantial evidence and were not affected by error of law.

III.

Petitioner argues that the Occupational Safety and Health Act (OSHA) makes a general contractor responsible only for the safety of his own employees. Congress enacted OSHA in 1970 "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. § 651. North Carolina, as permitted under the federal act, 29 U.S.C. § 667, Brooks v. Butler, 70 N.C.App. 681, 684, 321 S.E.2d 440, 442 (1984), disc. review denied, 313 N.C. 327, 329 S.E.2d 385 (1985), administers and operates, under federal supervision, its own plan, known as the Occupational Safety and Health Act of North Carolina (OSHANC). N.C. Gen.Stat. § 95-126 et. seq. (2003). Pursuant to N.C. Gen.Stat. § 95-131, the federal occupational safety and health standards have been adopted by North Carolina. N.C. Gen.Stat. § 95-131 (2003). OSHANC sets forth the rights and duties of employers including but not limited to the following provisions: (1) Each 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 to his employees;

(1) Each 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 to his employees;

(2) Each employer shall comply with occupational safety and health standards or regulations promulgated pursuant to this Article.

N.C. Gen.Stat. § 95-129(1) and (2) (2003). North Carolina's Act is substantially the same as the federal Act. 29 U.S.C. § 654.

Petitioner contends that neither Congress nor the North Carolina legislature intended

609 S.E.2d 412

to impose a duty on an employer to protect the employees of its independent contractors. In support of their argument, petitioner points to definitions in the Act. An "occupational safety and health standard" is defined as a standard "reasonably necessary and appropriate to provide safe and healthful employment and places of employment," N.C. Gen.Stat. § 95-127(15) (2003); see 29 U.S.C. § 652(8) (1998), while "employer" is defined as "a person engaged in a business who has employees." N.C. Gen.Stat. § 95-127(10) (2003); see 29 U.S.C. § 652(5) (1998). Petitioner interprets these definitions in combination as prescribing the duties of an employer only in reference to his own employees, not those of another entity

In addition, petitioner argues that N.C. Gen.Stat. § 95-129 and 29 U.S.C. § 654(a) impose a duty on each employer to furnish a safe workplace and to comply with specific standards regarding only his own employees. Petitioner contends the legislature understood the difference between one who operates or controls the workplace and one who is an employer and argues that had the legislature intended the Act to apply to employees of another employer on a multi-employer worksite, it would have defined "employer" differently. We reject petitioner's interpretation of the statute.

"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." Brooks v. McWhirter Grading Co., 303 N.C. 573, 580, 281 S.E.2d 24, 29 (1981)...