Desarrollos Metropolitanos, Inc. v. Occupational Safety and Health Review Com'n
| Decision Date | 23 March 1977 |
| Docket Number | No. 76-1171,76-1171 |
| Citation | 551 F.2d 874 |
| Parties | 5 O.S.H. Cas.(BNA) 1135, 1977-1978 O.S.H.D. ( 21,665 DESARROLLOS METROPOLITANOS, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent, W. J. Usery, Jr., Secretary of Labor, Party in Interest. |
| Court | U.S. Court of Appeals — First Circuit |
Horacio R. Subira Hijo, San Juan, P. R., on brief for petitioner.
William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol., Washington, D. C., for Occupational Safety and Health, Michael H. Levin, Counsel, Appellate Litigation, Allen H. Feldman, Asst. Counsel, Appellate Litigation, and Marc R. Hillson, Atty., U. S. Dept. of Labor, Washington, D. C., were on brief for respondents.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
Petitioner Metropolitanos appeals from the Commission's affirmance of a fine of $300 imposed by the administrative law judge for a repeat violation. It argues both that the finding of a repeat violation was not supported by substantial evidence and that the regulation under which the fine was assessed violates the equal protection component of the Fifth Amendment. We disagree with both arguments and therefore deny the petition.
At the hearing, it was uncontradicted that Metropolitanos was cited for an open-side violation in August, 1973, which it did not contest, and that an inspection in November, 1974, at a construction site within 2 miles of the one cited in 1973, resulted, inter alia, in a second citation for an open-side violation. This latter citation was contested, but the OSHA inspector, two employees of petitioner and Metropolitanos' own expert all testified that the violation occurred. Several photographs were also introduced, showing unguarded or inadequately guarded open-sides on the 14th floor, with employees working within 3-6 feet of the edge. It is thus clear that the finding of multiple violations is supported by the record.
We are also urged to reverse the Commission's decision on the basis that the guidelines defining "repeat violations" violate the Constitutional guarantee of equal protection of the laws. Petitioner notes that it, as a company with no fixed establishments, may be found guilty of a repeat violation if transgressions occur at two or more of its moveable sites, whereas repeat violations cannot be predicated upon actions at separate locations for businesses with fixed establishments, such as factories. 1 Additionally, Metropolitanos urges that the standard is also arbitrary since, even for businesses with peripatetic sites, a repeat violation can be found if citations are assessed within a state, but not if violations occur at sites in more than one state.
In regard to the distinction between fixed and moveable sites, both sides agree that in the area of economic or social welfare legislation, "when the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed." 2 Morey v. Doud, 354 U.S. 457, 464, 77 S.Ct. 1344, 1349, 1 L.Ed.2d 1485 (1957); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369 (1911). See Dandrige v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). There is clearly a reasonable basis for the distinction between permanent and transient work sites. A company with floating work sites will have little incentive to ensure full compliance with safety standards at each new job site from the outset if it has one almost free bite at the apple at each such site. The Commission quite reasonably concluded that an additional incentive was not needed in the case of employers with stable work sites. Because this latter group of employers will envision continuous operations spanning a long period of time, they will have every incentive to comply fully with the standards. We recognize that the classification is not precise, but it is a rational one and that is all that is required for it to pass Constitutional muster.
As to the alleged arbitrariness in distinguishing between intra and interstate construction businesses, petitioner itself acknowledges that it can be sustained if it serves administrative convenience. In order to pass Constitutional muster, the classification must "approximate" even if it does not "precisely mirror, the results that case...
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