Hartwell Excavating Co. v. Dunlop
| Decision Date | 18 June 1976 |
| Docket Number | No. 74--3275,74--3275 |
| Parties | 4 O.S.H. Cas.(BNA) 1331, 1976-1977 O.S.H.D. ( 20,823 HARTWELL EXCAVATING CO., Petitioner, v. John T. DUNLOP, Secretary of Labor, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Franklin Smith (argued), Sharp, Anderson & Bush, Idaho Falls, Idaho, for petitioner.
Allen H. Feldman (argued), U.S. Dept. of Labor, Washington, D.C., for respondent.
Before CHOY and KENNEDY, Circuit Judges, and NIELSEN, * District Judge.
Hartwell Excavating Co. ('Hartwell') asks review and reversal of a final order of the Occupational Safety and Health Review Commission ('Commission') finding it guilty of violations of Safety standards promulgated under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (OSHA) allegedly occurring on March 29, 1972 at a sewer construction site near Moore, Idaho.
The facts, as found at the hearing before the administrative law judge, were:
After working hours on March 28, 1972, Compliance Officer Jackson and Idaho Safety Inspector Ryals happened on the construction site, basically consisting of a trench which ran under Highway 93--A and extended on both sides of the road.
The inspectors examined this site briefly and left, deciding to return the next day.
About 8:30 the next morning, the inspectors returned to the site and Jackson presented his credentials to the nearest workman, asking for the foreman in charge. In following the workman's directions, the inspectors necessarily passed along a portion of the 750 foot long trench. During that time, Jackson noted several possible violations of OSHA rules; e.g., lack of proper shoring in the trench and insufficient distance of excavated material from the trench lip. He also took at least one photograph.
At this point Superintendent Louk came up to the inspectors, Jackson presented his credentials and he asked Louk to remove his men from the trench, stating that the trench situation was serious. After the workmen came out of the trench, the inspection continued for about an hour, with Louk accompanying the inspectors.
As a result of the inspection, Hartwell was cited for violations of OSHA safety regulations, which were contested before an administrative law judge, and after review by the Commission appealed to this Court.
Petitioner makes two basic claims: (1) that the inspection was unlawful under Sections 8(a) and (e) of the Act, and (2) that there is not substantial evidence to support the Commission's findings.
Section 8(a) of the Act provides that the compliance officer may enter a worksite upon presentation of appropriate credentials to the owner, operator or agent in charge. It is petitioner's contention that because Jackson conducted a portion of his inspection before presenting his credentials to Louk, the entire inspection is tainted and the evidence gained from it cannot be used.
Petitioner also claims a violation of the so-called 'walk-around' provision of the Act contained in § 8(e), providing that a representative of the employer 'shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace . . . for the purpose of aiding such inspection.' This claimed violation is also based upon the lapse of time between the initiation of the inspection and the presentation of credentials to Louk.
Petitioner also asserts that § 8(e) was violated by Jackson because of the presence of and aid given by Ryals, the state inspector, claiming that this violates the statutory requirement that the inspection be conducted by an 'authorized representative' of the Secretary.
All of these issues were explored at length at the administrative level. The administrative law judge found, in light of the facts adduced at the hearing concerning Jackson's...
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