H.B. Zachry Co. v. Occupational Safety and Health Review Com'n, No. 80-1357

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, POLITZ and TATE; JOHN R. BROWN
Citation638 F.2d 812
Docket NumberNo. 80-1357
Decision Date02 March 1981
Parties, 9 O.S.H. Cas.(BNA) 1417, 1981 O.S.H.D. (CCH) P 25,223 H. B. ZACHRY COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, et al, Respondents. Summary Calendar. . Unit A

Page 812

638 F.2d 812
59 A.L.R.Fed. 377, 9 O.S.H. Cas.(BNA) 1417,
1981 O.S.H.D. (CCH) P 25,223
H. B. ZACHRY COMPANY, Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, et al, Respondents.
No. 80-1357
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Unit A
March 2, 1981.

Page 813

Johnston, Bowlin, Krog & Vives, Robert W. Wachsmuth, Richard L. Reed, San Antonio, Tex., for petitioner.

Carin A. Clauss, Sol. of Labor, John R. Bradley, Ben. W. Mintz, Assoc. Sol., Dennis K. Kade, Assoc. Counsel, Washington, D. C., James E. White, Reg. Sol., U. S. Dept. of Labor, Dallas, Tex., for respondents.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before BROWN, POLITZ and TATE, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This appeal is brought by H. B. Zachry Company pursuant to a petition for review of a decision of the Occupational Safety and Health Review Commission (OSHRC) in favor of the Secretary of Labor (Secretary). The Occupational Safety and Health citation alleged that Zachry had committed a serious violation of the Act by allowing its mobil crane to come within 10 feet of energized electrical transmission lines thus creating a hazard of electrical shock. An order of abatement and a $700 penalty was assessed against Zachry. Finding substantial evidence in the record to support the decision and order of the Administrative Law Judge and Commission, we affirm.

The Facts

The facts which gave rise to the penalty imposed by the Secretary and affirmed by the Commission are uncontroverted. Zachry is a general contractor engaged in world-wide construction with its principal place of business at San Antonio, Texas. Early in 1976, Zachry was engaged in construction at the Sooner Dam and Power Plant project near Pawnee, Oklahoma. 1 At approximately eight o'clock on the morning of February 11, 1976, one of Zachry's crane operators, Raymond Kitchens, was ordered by his immediate supervisors to transport a load of pipe from a storage area to an excavation site a distance of several hundred feet. Located approximately 28 feet above this pathway were uninsulated energized electrical transmission lines carrying 7,000 to 7,200 watts of electricity.

The load was secured by steel cables attached to the end of the pipe, wrapped around, and then fastened to a hook on the boom of the crane. With this load attached, the boom rested at an angle of about 30o to 35o with a length including the jib of approximately 48 to 50 feet. Two employees, Tobias and Fragu were assigned

Page 814

to assist Kitchens in this moving operation by holding the ends of the pipe to stabilize it. As the load was being transported across the work site, the jib of the mobil crane 2 came into contact with one of the transmission lines fatally electrocuting Tobias and seriously injuring Fragu.

The following morning, Roger Jackson, an OSHA compliance officer commenced an on-site investigation pursuant to 29 U.S.C.A. § 657(a). 3 Based on this investigation, the Secretary of Labor issued a citation 4 on February 27, 1976, which alleged that Zachry had committed a serious violation 5 of 29 C.F.R. 1926.550(a)(15)(i) 6 by failing to maintain a minimum clearance of ten feet between energized electrical transmission lines and the crane or its load, thus creating the hazard of electrical shock. The citation was accompanied by the Secretary's recommendation of a $700 penalty and an order of immediate abatement of the hazard.

Page 815

Zachry timely contested the citation and proposed penalty pursuant to 29 U.S.C.A. § 659(c). 7 Both at the administrative hearing on July 20, 1976, and now before this Court, Zachry challenges the citation and penalty on three grounds. First, since the citation and complaint 8 allege an "inspection" rather than "investigation" of the work site, the Secretary should not have been allowed to amend the complaint and present evidence relating to the crane accident. Second, the cited standard (see note 6, supra ) is not applicable to the operation which was being performed at the time of the accident. And, more importantly, the company should not be held liable for an employee's unforeseeable negligence when it has adequately trained and supervised its employees in this particular area of safety.

The Administrative Law Judge (ALJ) by decision and order of October 26, 1976, affirmed the Secretary's citation and $700 penalty. The same results were reached by the Review Commission on January 31, 1980.

Our Review Standard

In considering Zachry's request to set aside the Commission's decision, we are mindful of the broad scope and remedial purpose of OSHA. Atlas Roofing Co. v. OSHA, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977), aff'g 518 F.2d 990 (5th Cir. 1975). We are also bound by that body's findings on questions of fact and reasonable inferences drawn therefrom if they are supported by substantial evidence on the record considered as a whole even if this Court could justifiably reach a different result de novo. See 29 U.S.C.A. § 660(a); 9 e. g., American Petroleum Institute

Page 816

v. OSHA, 581 F.2d 493 (5th Cir. 1978); Horce Plumbing and Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976); Brennan v. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975); Accu-Namics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir. 1975), cert. denied 425 U.S. 903, 96 S.Ct. 1492, 47 L.Ed.2d 752 (1976); Brennan v. OSHRC, 419 F.2d 1340 (2d Cir. 1974).

There is substantial evidence in the record indeed, it is uncontradicted supporting the Commission's finding that the crane boom came within ten feet of electrical lines in violation of 29 C.F.R. 1926.550(a)(15)(i) and that the violation was a serious one insofar as it could have and did, result in the serious injury of one Zachry employee and the death of another. We now proceed with a careful analysis of the record in order to evaluate Zachry's three challenges in this appeal.

Was Amendment To Complaint Proper?

The ALJ and Commission rejected Zachry's claim of prejudice due to the allowance of an amendment to OSHA's complaint at the time of the hearing. With this amendment which added the word "investigation" to "inspection" (see notes 4 and 8, supra ) the ALJ admitted evidence at the hearing concerning the fatal accident. Zachry urges a violation of constitutional due process by allowing the Secretary to proceed under a citation which originally alleged an "inspection" and then introduce evidence obtained on an "investigation" Kitchens' testimony. Zachry's position is that the Secretary should have been limited to producing evidence concerning only the actual observations of the compliance officer and, furthermore, that OSHA investigative procedures do not provide for the issuance of civil citations as a result of an "inspection". Consequently, Zachry should not have received the citation issued and the one which it did receive did not permit it to adequately prepare its defense.

We adopt the observations made by the ALJ and Commission that Zachry was not unduly prejudiced. It is obvious from the OSHA investigative report that Zachry was fully aware that the purpose of the complaint officer's visit was to investigate the accident. 10 Furthermore, this Court has previously held that after-the-fact observations and investigations made by OSHA officials have evidentiary weight. Texports Stevedore Co. v. Secretary of Labor, 484 F.2d 465 (5th Cir. 1973). Obviously, since this subsequent amendment would neither have surprised nor hindered Zachry in the preparation of its defense, we think that it was within the discretion of the ALJ to allow the amendment in this case.

We dispose of Zachry's second point quickly by referring to § 9(a) of 29 U.S.C.A. § 658(a) 11 which provides that "upon inspection

Page 817

or investigation the Secretary shall issue a citation to the employer when the Secretary believes the Act has been violated." (Emphasis supplied). The express language of the Act unquestionably controls over other sections of the Secretary's Field Operations Manual which Zachry cites as support for its proposition that OSHA investigation procedures do not provide for issuance of citations as a result of an investigation. In addition, the ALJ and Commission concluded that the adoption of Zachry's reasoning that an "investigation" could not lead to the issuance of citations would "seriously undercut" the enforcement scheme of § 9(a).

Did Cited Regulation Apply?

Zachry next challenges the cited regulation, 29 C.F.R. § 1926.550(a)(15)(i) (see Appendix I) as inapplicable to "mobil cranes". Zachry attacks the provision on three grounds. First, subsection (a) (entitled General Requirement), of § 550 (entitled Crane and Derrick) applies to all cranes, but requires only that they be operated in accordance with the manufacturer's specifications. A careful look at the statute reveals that subsection (a) heads the list of 18 general crane safety provisions which include paragraphs (1) through (15), under which Zachry was cited. It makes no sense to conclude that only general requirements of .550(a) applicable to all cranes, applies only to paragraph (1).

Secondly, according to Zachry, mobil cranes are specifically mentioned in another regulatory section 26 C.F.R. § 1926.550(b)(2) which was not cited by the Secretary. Based upon Diamond Roofing v. OSHA, 528 F.2d 645 (5th Cir. 1976), Zachry adopts the reasoning that where a term is carefully employed in one section and excluded in another it should not be implied where excluded. Diamond, 528 F.2d at 648. Therefore, the Secretary failed to allege or prove any violation of the specific standard applicable to mobil cranes.

We reject Zachry's reasoning and misplaced reliance on Diamond 's rationale which is not controlling in the instant case. The ALJ and the Commission, as we do, read Diamond to stand for the proposition that when terms with "distinct meanings" are employed together...

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21 practice notes
  • New York State Elec. & Gas Corp. v. Secretary of Labor, No. 604
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 3, 1996
    ...599 F.2d 453, 459 (1st Cir.1979), as have the Fifth, Sixth, Eighth, and Eleventh Circuits in special duty cases, H.B. Zachry Co. v. OSHRC, 638 F.2d 812, 818 (5th Cir. Unit A Mar.1981); L.E. Myers, 818 F.2d at 1277; Danco Constr. Co. v. OSHRC, 586 F.2d 1243, 1246-47 (8th Cir.1978); Daniel In......
  • Modern Drop Forge Co. v. Secretary of Labor, No. 81-1579
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 26, 1982
    ...result de novo. NLRB v. United Ins. Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); H. B. Zachry Co. v. OSHRC, 638 F.2d 812, 815 (5th Cir. 1981); A. Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir. In general, the Secretary's standard-setting authority is exercised a......
  • LABOR COMMISSIONER v. Cole Roofing Co., No. 70
    • United States
    • Court of Appeals of Maryland
    • April 9, 2002
    ...Cir.1997); New York State Elec. & Gas v. Secretary of Labor, 88 F.3d 98 (2d Cir.1996); H.B. Zachry Co. v. Occupational Safety & Health, 638 F.2d 812 (5th Cir.1981); CMC Elec. v. Occupational Safety and Health Admin., 221 F.3d 861 (6th Cir.2000); Brock v. L.E. Myers Co., High Voltage Div., 8......
  • P. Gioioso & Sons, Inc. v. Occupational Safety and Health Review Com'n, No. 96-1807
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 13, 1997
    ...foreseeable hazards, including dangerous conduct by its employees." General Dynamics, 599 F.2d at 458; accord H.B. Zachry Co. v. OSHRC, 638 F.2d 812, 818 (5th The mainstay of Gioioso's argument is that the ALJ unnecessarily required repetitive documentary proof referable to the UEM defense.......
  • Request a trial to view additional results
21 cases
  • New York State Elec. & Gas Corp. v. Secretary of Labor, No. 604
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 3, 1996
    ...599 F.2d 453, 459 (1st Cir.1979), as have the Fifth, Sixth, Eighth, and Eleventh Circuits in special duty cases, H.B. Zachry Co. v. OSHRC, 638 F.2d 812, 818 (5th Cir. Unit A Mar.1981); L.E. Myers, 818 F.2d at 1277; Danco Constr. Co. v. OSHRC, 586 F.2d 1243, 1246-47 (8th Cir.1978); Daniel In......
  • Modern Drop Forge Co. v. Secretary of Labor, No. 81-1579
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 26, 1982
    ...result de novo. NLRB v. United Ins. Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); H. B. Zachry Co. v. OSHRC, 638 F.2d 812, 815 (5th Cir. 1981); A. Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir. In general, the Secretary's standard-setting authority is exercised a......
  • LABOR COMMISSIONER v. Cole Roofing Co., No. 70
    • United States
    • Court of Appeals of Maryland
    • April 9, 2002
    ...Cir.1997); New York State Elec. & Gas v. Secretary of Labor, 88 F.3d 98 (2d Cir.1996); H.B. Zachry Co. v. Occupational Safety & Health, 638 F.2d 812 (5th Cir.1981); CMC Elec. v. Occupational Safety and Health Admin., 221 F.3d 861 (6th Cir.2000); Brock v. L.E. Myers Co., High Voltage Div., 8......
  • P. Gioioso & Sons, Inc. v. Occupational Safety and Health Review Com'n, No. 96-1807
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 13, 1997
    ...foreseeable hazards, including dangerous conduct by its employees." General Dynamics, 599 F.2d at 458; accord H.B. Zachry Co. v. OSHRC, 638 F.2d 812, 818 (5th The mainstay of Gioioso's argument is that the ALJ unnecessarily required repetitive documentary proof referable to the UEM defense.......
  • Request a trial to view additional results

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