REA Express, Inc. v. Brennan, 706
| Decision Date | 18 April 1974 |
| Docket Number | Docket 73-1468.,No. 706,706 |
| Parties | REA EXPRESS, INC., Petitioner, v. Peter J. BRENNAN, Secretary of Labor and the Occupational Safety and Health Review Commission, Respondents. |
| Court | U.S. Court of Appeals — Second Circuit |
COPYRIGHT MATERIAL OMITTED
Peter G. Wolfe, New York City, for petitioner.
Stanton R. Koppel, Atty., Dept. of Justice, Washington, D.C. (Irving Jaffe, Acting Asst. Atty. Gen., Stephen F. Eliperin, Atty., on the brief), for respondents.
Before MOORE, FEINBERG and MULLIGAN, Circuit Judges.
The employer, REA Express, Inc. (REA), brings this petition to review a final order of the Occupational Safety and Health Review Commission (Commission), holding the employer liable for a serious violation of the general duty clause of the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. § 654(a)(1). Petition denied.
REA is an interstate carrier which operates a shipping terminal in Long Island City, New York, known as the PXT terminal, the largest facility of its type in the United States covering an area of four or five city blocks. On Saturday, July 31, 1971, the feeder for a conveyor belt failed to operate because of an electrical short circuit in the underground cables. REA's Service Center Manager, Michael Worden, called Frank Traugott, President of FEC, Inc., a licensed electrical contractor which had previously worked for REA in emergency situations. Traugott responded to the call although he had no prior experience in high voltage repairs. After an initial inspection, Traugott advised REA that the problem was probably coming from Consolidated Edison's outside equipment. Later that afternoon, Traugott returned at Worden's request to give advice to Michael Coy, REA's maintenance supervisor, who was working in the circuit breaker room with another REA employee when Traugott arrived. There was water on the concrete floor of the room which Worden attempted to soak up with sawdust, but the floor remained damp. Coy directed an REA employee, Soccio, to cut three cables while the switch was out. However, Coy then pushed the circuit switch back in, which reenergized the cables. Traugott, believing that the wires held only 600 volts instead of the 15,000 volts which was their actual potential, proceeded to test for voltage. In the course of this procedure, a blinding flash occurred which electrocuted Coy, who was standing on the damp concrete floor four or five feet from the cut live wires. Traugott, standing on a wooden platform about two feet from the wires, was knocked unconscious and burned on his hands and arms.
On August 3, 1971, compliance officers of the Department of Labor made an investigation of the accident at the PXT terminal. On August 11, 1971, REA received a citation which charged: "Place of employment furnished to employees by employer not free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." The citation required abatement by August 30, 1971, and assessed a penalty of $900. On August 26, 1971, REA filed a notice of intent to contest the citation and the imposition of the fine. After a three-day hearing in November, 1971, the administrative judge issued a 19-page decision, including findings of fact and conclusions of law, holding that REA had violated the general duty clause of the Act,1 and increasing the proposed penalty for the violation from $900 to $1000. The Commission affirmed this decision without opinion on March 28, 1973. This petition for review followed. Since there is substantial evidence on the record to support the Commission's conclusion that the Act was violated, the petition is denied. 29 U.S.C. § 660(a).
REA argues that since the circuit room was off limits to its employees generally, it could not be considered a "place of employment." However, the statute requires the employer to furnish "each employee" a place of employment free from recognized hazards. It is apparent from the findings that REA furnished Coy and three other employees the circuit breaker power room as a place to work on the date of the fatal accident. It was in the basement of the terminal where REA operated its business and Coy, as the maintenance supervisor of PXT, had a key to gain access to it. The fact that it was not open to all employees, but only certain authorized personnel, does not in our view render it immune from the coverage of the statute. The general duty clause specifies recognized hazards causing or likely to cause death or serious physical harm. The high voltage circuit room here obviously presented such a hazard and it was so recognized by REA, which usually kept it locked and unavailable to its employees. To exclude it from the coverage of the statute would exonerate the employer from providing occupational protection and safety in the most hazardous areas of its plant, those areas where employees need greatest protection. We refuse to so interpret the statute.
REA also contends that the Act does not make the employer an insurer of the safety of the places of work he furnishes; it suggests that the employee must exercise reasonable care for his own safety and urges that the ultimate risk creation and the responsibility here was that of the independent contractor, Mr. Traugott. This argumentation might well be relevant if this were a common law action brought against REA seeking a damage recovery for the death of Coy or the injuries of Traugott. However, that is not the issue here. The question before us involves the liability of the employer under the Act for the asserted failure to afford each of his employees a safe place to work. This question is wholly separate and apart from the employer's liability for damages in a personal injury action. The statute may well be violated even though no accident or injury occurs. All of the cases cited by appellant on this appeal relate to tort liability; none of them involves the interpretation of the Act, and therefore we find them inapposite.
While the...
To continue reading
Request your trial
-
New York State Elec. & Gas Corp. v. Secretary of Labor
...The OSH Act of 1970, Pub.L. No. 91-596, 84 Stat. 1590, was a "revolutionary piece of labor legislation," REA Express, Inc. v. Brennan, 495 F.2d 822, 825 (2d Cir.1974), both remedial and preventative, the broad purpose of which was to assure safe and healthful working conditions for workers.......
-
Dan J. Sheehan Co. v. Occupational Safety and Health Review Com'n, 74-2764
...The court is empowered to review the appropriateness of the penalty using an "abuse of discretion" standard. See REA Express, Inc. v. Brennan, 495 F.2d 822, 827 (2d Cir. 1974), and Interstate Glass Co., 487 F.2d at 442. Further, the court of appeals will be able to test the propriety of the......
-
Empire-Detroit Steel Div., Detroit Steel Corp. v. Occupational Safety and Health Review Com'n
...a violation of the general duty clause. See Brennan v. Smoke-Craft, Inc., 530 F.2d 843, 845 (9th Cir. 1976); Rea Express, Inc. v. Brennan, 495 F.2d 822, 825 (2d Cir. 1974); National Realty & Construction Co. v. OSHRC, supra, 160 U.S.App.D.C. at 143, 489 F.2d at 1267. The Eighth Circuit in B......
-
Brock v. Dow Chemical U.S.A.
...e.g., Royal Logging Co., 645 F.2d at 828; Ringland-Johnson, Inc. v. Dunlop, 551 F.2d 1117, 1118 (8th Cir.1977); REA Express, Inc. v. Brennan, 495 F.2d 822, 826 (2d Cir.1974); Swift & Co., 393 F.2d at 252. Indeed, we have held that "[t]here is no requirement that a complaint in an administra......
-
Litigation by Ambush: The Struggle to Obtain Fair Notice of OSHA Allegations
...natural debate, arguments, and development of the law that are essential in our common law system.”). 82. REA Express, Inc. v. Brennan, 495 F.2d 822, 826–27 (2d Cir. 1974). 83. The Second Circuit’s opinion was then followed, inter alia, by Noblecraft Indus., v. Sec’y of Lab., 614 F.2d 199, ......