Marshall v. L. E. Myers Co., No. 77-2278

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CASTLE, Senior Circuit Judge, BAUER and WOOD; HARLINGTON WOOD, Jr.
Citation589 F.2d 270
Parties6 O.S.H. Cas.(BNA) 2159, 1978 O.S.H.D. (CCH) P 23,217 Ray MARSHALL, Secretary of Labor, Petitioner, v. L. E. MYERS COMPANY and Occupational Safety and Health Review Commission, Respondents.
Docket NumberNo. 77-2278
Decision Date21 November 1978

Page 270

589 F.2d 270
6 O.S.H. Cas.(BNA) 2159, 1978 O.S.H.D. (CCH) P 23,217
Ray MARSHALL, Secretary of Labor, Petitioner,
v.
L. E. MYERS COMPANY and Occupational Safety and Health
Review Commission, Respondents.
No. 77-2278.
United States Court of Appeals,
Seventh Circuit.
Argued Oct. 30, 1978.
Decided Nov. 21, 1978. *
Opinion Dec. 21, 1978.

John A. Bryson, II, Washington, D. C., for petitioner.

W. Brand Bobosky, Naperville, Ill., for respondents.

Before CASTLE, Senior Circuit Judge, BAUER and WOOD, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Pursuant to Section 11(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 Et seq., the Secretary of Labor petitions this court to review and set aside an order of the equally divided Occupational Safety and Health Review Commission which permitted the administrative law judge's decision in favor of L. E. Myers Co. (Myers) to become the final order of the Commission.

In May 1974 in the performance of highline electrical work an experienced company journeyman, while working within the bight of the line, was hurled approximately 80 feet to his death. A line, under tension, accidentally released at high velocity. At the time the decedent and his partner had been using a "preform" grip on the line which permitted the line to be pulled to a certain tension so that other operations could be performed in stringing the line. Following the fatal accident, the Secretary, alleging that Myers committed a serious violation of the general duty clause of the Act, issued a citation and proposed a $600 penalty. 1

Page 271

After a hearing the administrative law judge vacated the citation and proposed penalty declaring that "(t)he overall evidence . . . is not persuasive that respondent violated the Act as alleged." Also as a conclusion of law the judge announced that the respondent did not violate Section 5(a)(1) of the Act. In his finding of facts he determined:

(1) (R)espondent's employees used preformed-type grips for a "clipping-in" process which were manufactured by Preform Lines Products Company. Use of the preforms for "pulling-in" was in contravention of the manufacturer's published "Application Procedures," and such use was with respondent's knowledge but did not constitute a recognized hazard.

(2) A preform-type grip which had been improperly applied failed; however, use of the grip for the "clipping-in" procedure was shown to be an acceptable practice, as safe as another recognized type grip which was available at the job site.

(3) The decision to use a particular grip (preform-type or patent-type) was within the discretion of the journeyman linemen employing same, and the respondent had reason to expect journeymen linemen to perform their work in a safe manner consistent with their knowledge and training and its safety rules which were in effect.

(4) Respondent's employee working in the bight of the angle of the line without safetying to the pole, and without use of safety belts, was in violation of respondent's safety rules.

(5) The evidence does not establish that, at the aforesaid time and place, respondent's method of operation was a recognized hazard.

The issue presented on appeal, the same one faced by the administrative law judge, is "whether the respondent failed to provide its employees with a place of employment free of recognized hazards by permitting employees to use certain equipment in a manner for which it was not specifically designed by a particular manufacturer." 2

The general duty clause of the Act, 29 U.S.C. § 654(a)(1), requires that:

Each employer (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

A serious violation, 29 U.S.C. § 666, exists only where there is:

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...

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4 practice notes
  • 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
    ...as a whole. 29 U.S.C. § 660(a); International Harvester Co. v. OSHRC, 628 F.2d 982, 986 (7th Cir. 1980); Marshall v. L. E. Myers Co., 589 F.2d 270, 273 (7th Cir. 1978). The substantial evidence test protects both the factual findings and the inferences derived from them, and if the findings......
  • Reich v. Arcadian Corp., No. 96-60126
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 28, 1997
    ...Marshall, 595 F.2d 309, 321 (5th Cir.1979); Champlin Petroleum Co. v. OSHRC, 593 F.2d 637, 640 (5th Cir.1979); Marshall v. L.E. Myers Co., 589 F.2d 270, 271 (7th Cir.1978); Empire-Detroit Steel Div., Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 383 (6th Cir.1978); Titanium Metals Corp. v. Us......
  • International Harvester Co. v. Occupational Safety and Health Review Com'n, No. 79-2035
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 16, 1980
    ...by substantial evidence on the record considered as a whole, shall be conclusive. 29 U.S.C. § 660(a). See Marshall v. L. E. Meyers Co., 589 F.2d 270, 273 (7th Cir. 1978); RMI Co. v. Secretary of Labor, 594 F.2d 566, 570 (6th Cir. 1979). In applying this standard, we rely upon the agency's c......
  • Whirlpool Corp. v. Occupational Safety and Health Review Com'n, Nos. 79-1692
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 12, 1981
    ...limits liability to dangers actually or constructively recognized at the time of the violation, see, e. g., Marshall v. L. E. Myers Co., 589 F.2d 270 (7th Cir. 1978). It would appear, then, that the feasibility of abatement must be judged as of the time of the violation as well. We cannot d......
4 cases
  • 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
    ...as a whole. 29 U.S.C. § 660(a); International Harvester Co. v. OSHRC, 628 F.2d 982, 986 (7th Cir. 1980); Marshall v. L. E. Myers Co., 589 F.2d 270, 273 (7th Cir. 1978). The substantial evidence test protects both the factual findings and the inferences derived from them, and if the findings......
  • Reich v. Arcadian Corp., No. 96-60126
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 28, 1997
    ...Marshall, 595 F.2d 309, 321 (5th Cir.1979); Champlin Petroleum Co. v. OSHRC, 593 F.2d 637, 640 (5th Cir.1979); Marshall v. L.E. Myers Co., 589 F.2d 270, 271 (7th Cir.1978); Empire-Detroit Steel Div., Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 383 (6th Cir.1978); Titanium Metals Corp. v. Us......
  • International Harvester Co. v. Occupational Safety and Health Review Com'n, No. 79-2035
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 16, 1980
    ...by substantial evidence on the record considered as a whole, shall be conclusive. 29 U.S.C. § 660(a). See Marshall v. L. E. Meyers Co., 589 F.2d 270, 273 (7th Cir. 1978); RMI Co. v. Secretary of Labor, 594 F.2d 566, 570 (6th Cir. 1979). In applying this standard, we rely upon the agency's c......
  • Whirlpool Corp. v. Occupational Safety and Health Review Com'n, Nos. 79-1692
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 12, 1981
    ...limits liability to dangers actually or constructively recognized at the time of the violation, see, e. g., Marshall v. L. E. Myers Co., 589 F.2d 270 (7th Cir. 1978). It would appear, then, that the feasibility of abatement must be judged as of the time of the violation as well. We cannot d......

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