Dunlop v. Rockwell Intern., 75-1672

• Decision Date: 26 August 1976
• Docket Number: No. 75-1672,75-1672
• Citation: 540 F.2d 1283
• Parties: 4 O.S.H. Cas.(BNA) 1606, 1976-1977 O.S.H.D. ( 21,025 John T. DUNLOP, Secretary of Labor, Petitioner, v. ROCKWELL INTERNATIONAL (formerly North American Rockwell Corp.) and the Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1283

540 F.2d 1283

4 O.S.H. Cas.(BNA) 1606, 1976-1977 O.S.H.D. ( 21,025

John T. DUNLOP, Secretary of Labor, Petitioner, v. ROCKWELL INTERNATIONAL (formerly North American Rockwell Corp.) and the Occupational Safety and Health Review Commission, Respondents.

No. 75-1672.

United States Court of Appeals Sixth Circuit.

Argued Feb. 12, 1976.

Decided Aug. 26, 1976.

Michael H. Levin, Counsel for Appellate Litigation, Kenneth A. Hellman, Allen H. Feldman, U. S. Dept. of Labor, Washington, D. C., for petitioner.

Harry T. Quick, Arter & Hadden, Cleveland, Ohio, William S. McLaughlin, Executive Secretary, Occupational Safety and Health Review Commission, Washington, D. C., for respondents.

Allen H. Sachsel, App. Sect., Dept. of Justice, Washington, D. C., for Occupational Safety & Health Review Commission.

Before EDWARDS and CELEBREZZE, Circuit Judges, and McALLISTER, Senior Circuit Judge.

CELEBREZZE, Circuit Judge.

This action is before the Court pursuant to 29 U.S.C. § 660(b), which authorizes the Secretary of Labor (hereinafter "Secretary") to petition for either review or enforcement of any final order of the Occupational Safety and Health Review Commission (hereinafter "Commission").

In January of 1973, Rockwell International Corp. (hereinafter "Rockwell") was operating a plant in Ashtabula, Ohio. One of the machines in the plant, grinder # 048, was utilized for removing excess amounts of lining material from brake shoes. Much of the materials and products shipped to and from the plant traveled in interstate commerce. Rockwell thus had to comply with the Occupational Health and Safety Act of 1970, 29 U.S.C. §§ 651-678 (hereinafter "the Act"), and the regulations promulgated thereunder by the Secretary. The Act's purpose is "to provide for the general welfare (and) to assure as far as possible to every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." ¹ The Act authorizes the Secretary to set health and safety standards, to conduct inspections, and to issue citations and proposed penalties. The Commission is established as an independent agency authorized to carry out the adjudicatory functions arising out of enforcement of the Act and is empowered to issue orders, based on findings of fact, "affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief. . . ." ²

One of the health and safety standards promulgated by the Secretary, 29 CFR § 1910.93a, delineates the allowable number of asbestos fibers in the breathing zone of an employee at peak periods and during an eight-hour workday. Based on the results of an inspection by the Secretary conducted on January 23, 1973, a citation charging a serious violation of the asbestos fiber standards was issued to Rockwell. Section 666(j) defines a "serious" violation:

(j) For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Section 666(b) sets forth the penalty for such a violation:

(b) Any employer who has received a citation for a serious violation of the requirements of section 654 of this title, of any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, shall be assessed a civil penalty of up to $1,000 for each such violation.

Specifically, it was charged that Rockwell violated 29 CFR §§ 1910.93a(b)(1) and (3), (c), (1), ³ and 29 CFR 1910.134(a)(2), which section requires that employers provide respirators to employees "when such equipment is necessary to protect the health of the employee."

On March 27, 1973, the Secretary, pursuant to § 659, sent Rockwell a "Notification of Proposed Penalty" in the amount of $800. Rockwell contested the citation and the proposed penalty. The Secretary advised the Commission that Rockwell was contesting the matter and the Commission assigned the case for a hearing before an administrative law judge. The judge is empowered to report recommended findings of fact and conclusions of law to the Commission. Before the judge, Rockwell noted that it had installed an extensive filtering and exhaust system on grinder # 048 and that on three occasions in the two years prior to the Secretary's tests it had retained an independent testing laboratory to check for excessive amounts of asbestos fibers in the breathing zone of employees. Each of these three prior tests indicated that the number of asbestos fibers in the vicinity of machine # 048 was within then-existing safety standards. Rockwell contends that by installing safety equipment, and by regularly maintaining and periodically checking that equipment, it exercised reasonable diligence and did not know that excessive and unhealthy amounts of asbestos fibers were in the breathing zone of the operator of machine # 048.

Following a hearing, the administrative law judge, in his Decision and Order, made a factual finding that

"Respondent's initiative in providing for atmospheric testing prior to January 24, 1973, was an exercise of reasonable diligence intended to determine the existence or non-existence of a violation of the atmospheric health and safety standards established by the Secretary." ⁴

The judge concluded that Rockwell's failure to comply with the cited regulations did not rise to the level of a serious violation of the Act due to Rockwell's failure to appreciate the violative facts despite the exercise of reasonable diligence. The judge concluded that Rockwell was guilty of a non-serious violation and affirmed the citation and penalty on that basis. The Act does not state the elements of a "non-serious" violation, but the penalty imposed by the judge was within the range allowed for such a violation in § 666(c):

(c) Any employer who has received a citation for a violation of the requirements of section 654 of this title, of any standard, rule, or order promulgated pursuant to section 655 of this title, or of regulations prescribed pursuant to this chapter, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation.

The Commission, by a 2-1 vote, vacated the citation and proposed penalty. The result, enunciated by Chairman Moran in the lead opinion, was concurred in separately by Commissioner Van Namee. Commissioner Cleary filed a dissenting opinion.

Chairman Moran concluded that employer knowledge of violative facts was an element of both serious and non-serious violations. Commissioner Van Namee concluded that Rockwell had been guilty of a non-serious violation because, in his view, employer knowledge of the operative facts was not an element of a non-serious violation. He noted that the instant violation was "technical" and vacation was proper. Commissioner Cleary dissented, concluding from a review of the facts that had Rockwell exercised "reasonable diligence" it would have discovered that grinder # 048 was emitting excessive amounts of asbestos fibers under certain production conditions.

The Secretary petitioned the Court for review of the Commission's order. Rockwell and the Commission contend that the Commission's decision should be affirmed.

The Secretary raises two issues. The thrust of the Secretary's first issue is that the Commission erred in failing to uphold the citation for a serious violation. Should the Court not be persuaded by his first argument, the Secretary then contends that the Commission should have affirmed the citation and proposed penalty on the basis of a non-serious violation.

In contending that the Commission should have found Rockwell in serious violation of the Act, the Secretary first attempts to reargue the facts upon which the Commission found that Rockwell had been reasonable and diligent in its attempts to furnish its employees a safe working environment. The Secretary next argues that the Commission's interpretation of the term "reasonable diligence" as used in § 666(j), defining a serious violation of the Act, is inconsistent with prior Commission interpretations of the phrase. The Secretary also contends that the Commission's interpretation does not comport with the preventative purposes of the Act.

We will first consider the Secretary's argument that the facts support a finding that, at the time of the Secretary's test, Rockwell knew or should have known that excessive amounts of asbestos fibers were in the breathing zone of workers near grinder # 048. We begin by noting that the Commission had the benefit of a lengthy record consisting primarily of testimony given by a number of witnesses at the hearing conducted by the administrative law judge. These witnesses furnished testimony favorable to both parties to the hearing.

Section 660(a) makes the Commission's findings of fact subject to our review under the "substantial evidence" standard:

"The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, should be conclusive."

Atlas Roofing Co., Inc., v. OSHRC, 518 F.2d 990, 1013 (5th Cir. 1975); Budd Co. v. OSHRC, 513 F.2d 201, 204 (3rd Cir. 1975); Brennan v. OSHRC (Hendrix), 511 F.2d 1139, 1143-1144 (9th Cir. 1975); Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974); Brennan v. OSHRC (Republic Creosoting Co.), 501 F.2d 1196, 1198-1199 (7th Cir. 1974); Brennan v. OSHRC (Interstate Glass Co.), 487 F.2d 438, 442 (8th Cir. 1973).

We defined "substantial evidence" in the context of review of a Civil Service...