Kent Nowlin Const. Co., Inc. v. Occupational Safety and Health Review Com'n

• Decision Date: 11 May 1981
• Docket Number: No. 79-1112,79-1112
• Parties: 9 O.S.H. Cas.(BNA) 1709, 1981 O.S.H.D. (CCH) P 25,379 KENT NOWLIN CONSTRUCTION COMPANY, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1278

648 F.2d 1278

9 O.S.H. Cas.(BNA) 1709, 1981 O.S.H.D. (CCH) P 25,379

KENT NOWLIN CONSTRUCTION COMPANY, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Secretary of Labor, Respondents.

No. 79-1112.

United States Court of Appeals, Tenth Circuit.

May 11, 1981.

Wayne E. Bingham of Pickering & Bingham, Albuquerque, N. M., for petitioner.

Laura V. Fargas, Atty., Washington, D. C., (Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Allen H. Feldman, Acting Counsel for Appellate Litigation, U. S. Dept. of Labor, Washington, D. C., and James E. White, Regional Sol., Dallas, Tex., with her on the brief), for respondents.

Before SETH, Chief Judge, LOGAN, Circuit Judge, and TEMPLAR, District Judge. ^*

LOGAN, Circuit Judge.

Kent Nowlin Construction Co. appeals the decision and order of the Occupational Safety and Health Review Commission (Commission) finding it guilty of willful, repeated, and serious violations of safety standards promulgated under authority of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.

The issues raised on appeal are whether substantial evidence supports the Commission's findings that Kent Nowlin committed (1) a willful violation of 29 C.F.R. § 1926.550(a)(15)(i) ¹ by allowing its Bantam crane to be operated within ten feet of a power line (which caused the death of a Kent Nowlin employee), (2) a repeated violation of 29 C.F.R. § 1926.550(a)(2) ² when, after two prior citations relating to other cranes, it failed to conspicuously post a rated load capacity chart on the Bantam crane, and (3) a serious violation of 29 C.F.R. § 1926.550(a)(5) ³ by permitting continued use of its Bantam crane despite two twisted sections at the crane boom's base and makeshift repairs of the boom's cord.

Our review is limited by 29 U.S.C. § 660(a), which provides that "the findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive." Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," Consolidated Edison Co. v. NLRB., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938), "and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939). See also Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951).

Our reading of the record persuades us that there is substantial evidence, considered, as it must be, from a standpoint of the declared objects and purposes of the Act, see 29 U.S.C. § 651, to sustain the findings of the Commission. See Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309 (10th Cir. 1976).

Willful Violation

There is overwhelming evidence in the record to support the Commission's finding that Kent Nowlin's truck-mounted Bantam crane was operated within ten feet of and actually came in contact with a 7,200 volt power line, causing the death of one of Kent Nowlin's employees. The record also supports the Commission's finding that the accident was not an isolated incident resulting from an employee's non-compliance with Kent Nowlin's instructions and uniformly enforced work rules.

Kent Nowlin initially used a small Hydro crane with a retractable telescoping boom to pull sand points from the ground where a sewer line was being laid. The Hydro crane apparently was needed on another job and was replaced by the Bantam crane, which had a nonretractable 31 1/2 foot boom mounted on a platform 4 feet 8 inches above the ground. (The power line was 28 feet 3 1/2 inches above the ground at the point of apparent contact with the crane.) The record shows that three supervisory employees crew leader Romero, project superintendent Stratton, and safety director Collins as well as crane operator Beattie were aware of the problems and hazards involved in using the crane in this location. Collins had toured the project area and had discussed possible protective measures with the electrical engineering supervisor of the utility that owned the power lines. ⁴ When crew leader Romero called project superintendent Stratton's attention to the hazard of using the Bantam crane he was told "to go ahead and use it because he would only be a little while." Record, Vol. II at 37. Considering the extent of knowledge on the part of Kent Nowlin's supervisory personnel and their deliberate decisions to proceed in spite of the hazards, without taking special precautions ⁵, we must reject the isolated incident and violation of work rules defense argued by Kent Nowlin.

Although this is a close case, we agree with the Commission that the violation can be considered willful within the meaning of the Act and our prior rulings. This Court, in a case involving Kent Nowlin, has approved the following definition of willfulness in the context of the Act:

" 'The failure to comply with a safety standard under the Occupational Safety and Health Act is willful if done knowingly and purposely by an employer who, having a free will or choice, either intentionally disregards the standard or is plainly indifferent to its requirement. An omission or failure to act is willfully done if done voluntarily and intentionally.' "

Kent Nowlin Constr. Co. v. OSHRC, 593 F.2d 368, 372 (10th Cir. 1979), quoting United States v. Dye Constr. Co., 510 F.2d 78, 81 (10th Cir. 1975). While this employer may not have intentionally flouted the standard, its apparent willingness to subject its employees to such danger suggests it was plainly indifferent to the standard's requirement. In such a case we are reluctant to say the Commission is restricted to charging merely a "serious" offense, which carries a maximum penalty of $1,000. The fact that only $3,000 was assessed, against a possible $10,000 maximum, indicates the Commission properly considered relative degrees of dereliction within the willful violation category. We hold the Commission's finding that Kent Nowlin willfully violated 29 C.F.R. § 1926.550(a)(15)(i) is supported by the record.

Repeated Violation

The Commission's finding that Kent Nowlin failed to do all that it could reasonably be expected to do under the circumstances to make sure a rated load capacity chart was present on the Bantam crane is also supported by the record. Kent Nowlin's argument that no rated load capacity chart was needed on the particular crane involved in this case is without merit. The cited standard, 29 C.F.R. § 1926.550(a)(2), makes no exception for cranes allegedly used exclusively for light lifting.

Prior to the current citation, Kent Nowlin had been cited twice for failing to have a rated load capacity chart present on one or more of its cranes. The record shows that the chart on this particular crane had been missing frequently in the past and had been missing for two weeks prior to the accident prompting this citation. There is no evidence that the company intentionally refused to post the load capacity chart. Nevertheless, 29 U.S.C. § 666(a) provides that "(a)ny employer who willfully or repeatedly violates regulations prescribed pursuant to this (Act), may be assessed a civil penalty of not more than $10,000 for each violation." (Emphasis added).

Other circuits are split on the meaning of "repeated" violations. The Third Circuit stated in Bethlehem Steel Corp. v. OSHRC 540 F.2d 157 (3d Cir. 1976), that repeated violation citations are designed to cover only intentional "flauntings" of the Act. The Fourth Circuit rejected this view, however, declaring that "the mere fact that an enhanced penalty is provided for in § 666(a) does not suggest that Congress intended willful and repeated violation citations to be appropriate only when an intentional flouting of the Act occurred." George Hyman Construction Corp. v. OSHRC, 582 F.2d 834, 840 (4th Cir. 1978). The Ninth Circuit has also declined to adopt the Third Circuit position because it "essentially equates 'willful' with 'repeated' while failing to give appropriate weight to the disjunctive 'or.' " Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327, 1331 (9th Cir. 1977). We agree with this reasoning and adopt the position of the Fourth and Ninth Circuits.

The legislative history of the Act supports our position. The section of the committee report that analyzed the penalty provisions stated that for "(o)ther than willful violations, the violator's intent should not be a pertinent factor in the original assessment of penalties." H.R.Rep.No.91-1291, 91st Cong. 2d Sess. 26 (1970). The obvious purpose of § 666(a) is to encourage employers who have previously violated a standard to take the necessary precautions to prevent the recurrence of similar violations. Thus, we think Congress intended to permit enhanced penalties when employers permit violations of the same standard to occur several times, even though the employer's intent or negligence falls short of the "willful" level. See Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683 (9th Cir. 1978). See also Desarrollos Metropolitanos, Inc. v. OSHRC, 551 F.2d 874 (1st Cir. 1977). Accordingly, we uphold the Commission's imposition of an enhanced penalty for Kent Nowlin's repeated failure to post rated load capacity charts.

Serious Violation

We conclude there is substantial evidence in the record to support a finding that Kent Nowlin violated 29 C.F.R. § 1926.550(a)(5) by failing to maintain its Bantam crane in safe operating condition. Kent Nowlin's work crew operated the crane despite the fact that sections of the boom were bent and twisted, with pieces of angle iron welded over the cords. OSHRC testimony showed that these deficiencies reduced the load capacity of the crane, posing hazards of boom...