Dunlop v. Ashworth, No. 75-1311

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and RUSSELL; HAYNSWORTH
Citation538 F.2d 562
Parties3 O.S.H. Cas.(BNA) 2065, 1975-1976 O.S.H.D. ( 20,473 John T. DUNLOP, Secretary of Labor, Petitioner, v. Uriel G. ASHWORTH et al., Respondents.
Docket NumberNo. 75-1311
Decision Date03 March 1976

Page 562

538 F.2d 562
3 O.S.H. Cas.(BNA) 2065, 1975-1976 O.S.H.D. ( 20,473
John T. DUNLOP, Secretary of Labor, Petitioner,
v.
Uriel G. ASHWORTH et al., Respondents.
No. 75-1311.
United States Court of Appeals,
Fourth Circuit.
Argued Nov. 12, 1975.
Decided March 3, 1976.

Judith Burghardt, Atty., U. S. Dept. of Labor, Washington, D.C. (William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for App. Litigation, and Allen H. Feldman, Asst. Counsel for App. Litigation, U. S. Dept. of Labor, Washington, D.C., on brief), for petitioner.

Allen H. Sachsel, Atty., App. Section, Civ. Div., U. S. Dept. of Justice, Washington, D.C. (Rex E. Lee, Asst. Atty. Gen., U. S. Dept. of Justice, Washington, D.C. on brief) for The Occupational Safety and Health Review Commission.

Frank M. Slayton, Vaughan, Slayton & Bennett, South Boston, Va., on brief, for Uriel G. Ashworth.

Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and RUSSELL, Circuit Judge.

Page 563

HAYNSWORTH, Chief Judge:

Uriel Ashworth was cited by the Secretary of Labor for a serious violation of the Occupational Safety and Health Act of 1970 1 and was assessed a $600 fine. Ashworth contested this citation and succeeded in persuading the Administrative Law Judge who heard his case that the specific provision he was cited under (§ 5(a)(2) of the Act) did not proscribe the conduct attributed to him. This determination was upheld by the Occupational Safety and Health Review Commission, and the Secretary appealed to this court. We affirm the decision below insofar as it holds that Ashworth is not guilty of violating § 5(a)(2) of the Act; however, we remand the case in order to allow the Secretary to amend his pleadings to allege a violation of § 5(a)(1), the so-called General Duty Clause.

Ashworth is a masonry subcontractor who furnishes bricklayers to construct buildings, walls, and foundations for various construction projects. In 1973, he was participating in a school construction project in Dinwiddie, Virginia. On April 20, 1973, high winds blew over a substantial portion of a thirteen foot high masonry block wall that was being constructed by Ashworth, killing one worker and injuring others.

After this fatality, an OSHA compliance officer inspected Ashworth's worksite and found that certain walls under construction had not been braced or shored in any way. Accordingly, the Secretary issued a citation charging Ashworth with failing to temporarily brace or shore a masonry...

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1 practice notes
  • Diebold, Inc. v. Marshall, No. 76-1278
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 3, 1978
    ...not enforceably construe a § 655(a) standard to impose requirements which the standard's source did not impose. 6 See Dunlop v. Ashworth, 538 F.2d 562, 563 (4th Cir. 1976); Diamond Roofing Co., Inc. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976). Thus, we also agree that the question whether §......
1 cases
  • Diebold, Inc. v. Marshall, No. 76-1278
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 3, 1978
    ...not enforceably construe a § 655(a) standard to impose requirements which the standard's source did not impose. 6 See Dunlop v. Ashworth, 538 F.2d 562, 563 (4th Cir. 1976); Diamond Roofing Co., Inc. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976). Thus, we also agree that the question whether §......

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