Shaw Const., Inc. v. Occupational Safety and Health Review Commission, No. 75-3495

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore AINSWORTH, CLARK and RONEY; AINSWORTH
Citation534 F.2d 1183
Parties4 O.S.H. Cas.(BNA) 1427, 1976-1977 O.S.H.D. ( 20,891 SHAW CONSTRUCTION, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and W. J. Usery, Jr., Secretary of Labor, Respondents. Summary Calendar. *
Decision Date12 July 1976
Docket NumberNo. 75-3495

Page 1183

534 F.2d 1183
4 O.S.H. Cas.(BNA) 1427, 1976-1977 O.S.H.D. ( 20,891
SHAW CONSTRUCTION, INC., Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and W. J.
Usery, Jr., Secretary of Labor, Respondents.
No. 75-3495
Summary Calendar. *
United States Court of Appeals,
Fifth Circuit.
July 12, 1976.

Page 1184

David Ford Hunt, Dallas, Tex., for petitioner.

William J. Kilberg, Sol., U.S. Dept. of Labor, Michael H. Levin, Robert K. Salyers, Jr., Judith Burghardt, Attys., Washington, D.C., for respondents.

Petition for Review of an Order of Occupational Safety and Health Review Commission (Texas Case).

Before AINSWORTH, CLARK and RONEY, Circuit Judges.

AINSWORTH, Circuit Judge:

Shaw Construction, Inc., an underground utilities construction company, petitions for review of an order of the Occupational Safety and Health Review Commission dated July 22, 1975, which held that Shaw committed two serious violations of regulations defining safety standards for trenching operations. In May of 1973, Shaw was engaged in lowering a telephone conduit which entailed, among other things, the construction of a trench nine feet deep, five feet wide, and twenty feet long.

The Secretary of Labor cited Shaw for a number of alleged violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., in connection with this trench. The citations were contested, and the Commission administrative law judge who heard the case determined that two serious violations had occurred. The first involved Shaw's failure to store excavated materials more than two feet from the edge of the trench, in violation of 29 C.F.R. § 1926.651(i)(1); 1 the second concerned improper shoring or sloping of the trench under 29 C.F.R. § 1926.652(c). 2 Following the issuance of the administrative law judge's decision, Shaw petitioned for discretionary review by the full Commission pursuant to 29 U.S.C. § 661(i). 3 The Commission agreed

Page 1185

to dispose of the case, but due to the fact that one of its members had resigned and had not been replaced at the time Shaw's petition was considered, only two commissioners participated in the review of the initial decision and order. Acting without a third member, the Commission affirmed the administrative law judge's determinations as to each of the violations. Both commissioners concurred in affirming the first violation; the second was affirmed by a divided, one-to-one vote. A subsequent petition for rehearing after a third member had been appointed to the Commission was denied.

With regard to the first violation, Shaw conceded that excavated materials were stored within two feet of the edge of its trench, and argues only that the Commission erred in holding this to be a "serious" violation. Section 17(k) of the Occupational Safety and Health Act, 29 U.S.C. § 666(j), provides:

(A) serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists . . . in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

(Emphasis added.) This provision has been construed as holding violations to be serious if they make possible an...

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22 practice notes
  • Faultless Div., Bliss & Laughlin Industries, Inc. v. Secretary of Labor, No. 81-1740
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 30, 1982
    ...The existence of these conditions is sufficient to support a finding that the violation is serious. See Shaw Construction, Inc. v. OSHRC, 534 F.2d 1183 (5th Cir. 1976). A serious violation requires only the showing of a "substantial probability that death or serious physical harm could resu......
  • Marshall v. Sun Petroleum Products Co., No. 79-1822
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 11, 1980
    ...776 (1979); Cox Brothers, Inc. v. Secretary of Labor, 574 F.2d 465 (9th Cir. 1978). See also Shaw Construction, Page 1180 Inc. v. OSHRC, 534 F.2d 1183, 1185-86 (5th Cir. 1976). We disagree with this analysis and prefer the reasoning of the Court of Appeals for the Fourth Circuit set forth i......
  • St. Joe Minerals Corp. v. Occupational Safety and Health Review Com'n, No. 79-1873
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 6, 1981
    ...be serious injury or death. Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 131-32 (6th Cir. 1978); Shaw Constr., Inc. v. OSHRC, 534 F.2d 1183, 1185 (5th Cir. 1976); California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986, 987-88 (9th Cir. 1975). Second, an employer is liable only if ......
  • RSR Corp. v. Donovan, No. 81-4379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 26, 1984
    ...not required to establish a serious violation of the statute. Shaw Construction Inc. v. Occupational Safety and Health Review Commission, 534 F.2d 1183, 1185 (5th Cir.1976). A violation can be "serious" even though the "accident itself is merely possible." East Texas Motor Freight, Inc. v. ......
  • Request a trial to view additional results
22 cases
  • Faultless Div., Bliss & Laughlin Industries, Inc. v. Secretary of Labor, No. 81-1740
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 30, 1982
    ...The existence of these conditions is sufficient to support a finding that the violation is serious. See Shaw Construction, Inc. v. OSHRC, 534 F.2d 1183 (5th Cir. 1976). A serious violation requires only the showing of a "substantial probability that death or serious physical harm could resu......
  • Marshall v. Sun Petroleum Products Co., No. 79-1822
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 11, 1980
    ...776 (1979); Cox Brothers, Inc. v. Secretary of Labor, 574 F.2d 465 (9th Cir. 1978). See also Shaw Construction, Page 1180 Inc. v. OSHRC, 534 F.2d 1183, 1185-86 (5th Cir. 1976). We disagree with this analysis and prefer the reasoning of the Court of Appeals for the Fourth Circuit set forth i......
  • St. Joe Minerals Corp. v. Occupational Safety and Health Review Com'n, No. 79-1873
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 6, 1981
    ...be serious injury or death. Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 131-32 (6th Cir. 1978); Shaw Constr., Inc. v. OSHRC, 534 F.2d 1183, 1185 (5th Cir. 1976); California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986, 987-88 (9th Cir. 1975). Second, an employer is liable only if ......
  • RSR Corp. v. Donovan, No. 81-4379
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 26, 1984
    ...not required to establish a serious violation of the statute. Shaw Construction Inc. v. Occupational Safety and Health Review Commission, 534 F.2d 1183, 1185 (5th Cir.1976). A violation can be "serious" even though the "accident itself is merely possible." East Texas Motor Freight, Inc. v. ......
  • Request a trial to view additional results

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