Valdak Corp. v. Occupational Safety and Health Review Com'n

• Decision Date: 22 January 1996
• Docket Number: No. 95-2194,95-2194
• Citation: 73 F.3d 1466
• Parties: 17 O.S.H. Cas. (BNA) 1492 VALDAK CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; The Secretary of the United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1466

73 F.3d 1466

17 O.S.H. Cas. (BNA) 1492

VALDAK CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; The Secretary of the United States Department of Labor, Respondents.

No. 95-2194.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 13, 1995.

Decided Jan. 22, 1996.

John F. Moosbrugger, Grand Forks, ND, argued, for appellant.

Bruce Justh, Washington, DC, argued (Joseph M. Woodward and Barbara Werthmann, on the brief), for appellee.

Before HANSEN, JOHN R. GIBSON and MURPHY, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Valdak Corporation appeals from an Occupational Safety and Health Review Commission decision finding Valdak in willful violation of the Occupational Safety and Health Act, 29 U.S.C. Secs. 651-678 (1994). After a fifteen-year-old employee's arm was amputated when he stuck his arm in a spinning industrial dryer, the Secretary of Labor cited Valdak for a willful violation of an OSHA machine guarding standard, and assessed a $28,000 penalty. Valdak appeals, arguing that: (1) there is no substantial evidence to support a finding that Valdak committed a willful violation of the Act; and (2) the Commission abused its discretion in assessing the penalty. We affirm.

Valdak operates a car wash in Grand Forks, North Dakota. Valdak used a machine known as an industrial centrifuge extractor to spin dry towels for use at the car wash. The extractor had a warning: "NEVER INSERT HANDS IN BASKET IF IT IS SPINNING EVEN SLIGHTLY." The extractor was also equipped with an interlocking device to prevent the lid from being opened while the container inside was still spinning. The interlocking device did not work all the time, and was not working on November 7, 1992. On that day, fifteen-year-old Joshua Zimmerman, who was on his third day on the job at the car wash, stuck his arm in the extractor while it was spinning. His arm was severed above the elbow. Fortunately, doctors were able to reattach his arm.

Following an inspection by Occupational Safety and Health Administration compliance officers, OSHA cited Valdak for three violations of the Act. ¹ The Secretary concluded that the violation of the machine guarding standard ² was willful and proposed a $28,000 penalty. Valdak filed a notice contesting the finding of a "willful" violation and the $28,000 penalty.

After a hearing, the administrative law judge affirmed the citation for a willful violation of the machine guarding standard. The judge concluded, however, that the $28,000 penalty was excessive, and assessed a $14,000 penalty.

The Review Commission granted Valdak's petition for discretionary review. The Commission affirmed the citation for a willful violation of the machine guarding standard, and reinstated the $28,000 penalty. Valdak appeals.

I.

Valdak first argues that there is no substantial evidence to sustain a citation for a willful violation of the Act.

The Commission's finding of willfulness is conclusive if supported by substantial evidence on the record as a whole. 29 U.S.C. Sec. 660(a); Western Waterproofing Co. v. Marshall, 576 F.2d 139, 142 (8th Cir.), cert. denied, 439 U.S. 965, 99 S.Ct. 452, 58 L.Ed.2d 423 (1978). To support a finding of willfulness, there must be substantial evidence that Valdak intentionally disregarded or was plainly indifferent to the requirements of the Act. Id. Valdak contends that this standard requires a higher degree of intent, specifically proof that Valdak "flaunted" or "obstinately refused to comply" with the requirements of the Act.

Valdak argues there is no substantial evidence to support a willful violation because Valdak had no actual or constructive knowledge of the Act's requirements. Valdak asserts that before the Zimmerman accident, it had never received a citation for a violation of the Act and had never experienced a similar accident. Valdak also relies on the testimony of its employees and owners who stated that they did not believe the machine was dangerous, and that Joshua Zimmerman was injured because he recklessly stuck his arm in the extractor.

Valdak's claimed ignorance of the OSHA standard does not negate a finding of willfulness. Willfulness can be proved by "plain indifference" to the Act's requirements. See Western Waterproofing, 576 F.2d at 142-43; Georgia Elec. Co. v. Marshall, 595 F.2d 309, 319 (5th Cir.1979). Plain indifference to the machine guarding requirement is amply demonstrated by the facts that the dryer was equipped with an interlocking device, the interlocking device did not work, and Valdak continued to use the dryer with the broken interlock device. An employer who substitutes his own judgment for the requirement of a standard or fails to correct a known hazard commits a willful violation even if the employer does so in good faith. Western Waterproofing, 576 F.2d at 143; accord Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1153-54 (11th Cir.1994) (showing of bad purpose not required to prove willfulness).

We also reject Valdak's argument that the Secretary must prove that Valdak knew of the Act's requirements, and "flaunted" or "obstinately" refused to comply. It is well settled that this circuit has defined willfulness as an act done voluntarily with either an intentional disregard of, or plain indifference to, the Act's requirements. See, e.g., Donovan v. Mica Constr. Co., 699 F.2d 431, 432 (8th Cir.1983); St. Joe Minerals Corp. v. Occupational Safety & Health Review Comm'n, 647 F.2d 840, 846 (8th Cir.1981); Western Waterproofing, 576 F.2d at 142-43. We rejected the Third Circuit's definition of willfulness, requiring an "element of obstinate refusal to comply," in Western Waterproofing Co., 576 F.2d at 143.

Similarly, Valdak's argument that there can be no willfulness because the accident was caused by a reckless act is fully answered by the Commission's findings that Valdak did not have a work rule that effectively implemented the requirements of the standard. To establish the defense of unforeseeable employee misconduct, Valdak must prove that it had a work rule in place which implemented the standard, and that it communicated and enforced the rule. "[T]he proper focus in employee misconduct cases is on the effectiveness of the employer's implementation of its safety program...." Brock v. L.E. Myers Co., 818 F.2d 1270, 1277 (6th Cir.), cert. denied, 484 U.S. 989, 108 S.Ct. 479, 98 L.Ed.2d 509 (1987). See Danco Constr. Co. v. Occupational Safety & Health Review Comm'n, 586 F.2d 1243, 1246-47 (8th Cir.1978). Valdak did not have a rule prohibiting employees from using the extractor if the interlocking device was inoperative. Indeed, there is evidence not only that employees...