Petition — Accu-Namics, Inc. v. Usery

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Supreme Court of the United States

OCTOBER TERM, 1975

Petitioner,

SECRETARY OF LABOR, OCCUPATIONAL SAFETY AND -H&atTH

REVIEW COMMISSION,

Respondents.

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PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

a

Davip Forp HuNnNT,

2001 Bryan Tower, Suite 2060

Dallas, Texas 75201

Counsel for the Petitioner

SOUTHWESTERN LAW PRESS — DALLAS, TEXAS — (214) 742-4257

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Cases:

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Brennan v. OSHRC (Bill Echols T i

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Universal Camera Corp. v. N.L.R.B., 340 US. 474

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Supreme Court of the United States

OCTOBER TERM, 1975

Accu-NamIcs, INC.,

Petitioner,

v.

SECRETARY OF LABOR, OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION,

Respondents.

I

PETITION FOR A WRIT OF CERTIORARI

, TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

ee

Accu-Namics, Inc., petitions for a writ of certiorari to re-

view the judgment of the United States Court of Appeals for

the Fifth Circuit in this case.

OPINIONS BELOW

This is an appeal under the Occupational Safety and Health

Act of 1970 (29 USC §651, et seq.). The opinion of the

Occupational Safety and Health Review Commission's Hear-

ing Judge is set forth in Exhibit A, infra, pages A-1 - A-33.

2

The opinion of the Occupational Safety and Health Review

Commission is set forth in Exhibit B, infra, pages A-34 - A-<8.

The opinion of the Court of Appeals (Exhibit C, infra, pages

A-49 - A-58) is reported at 515 F.2d 828, and its opinion on

Petition For Rehearing En Banc is set forth in Exhibit D,

infra, page A-59.

JURISDICTION

The judgment of the Court of Appeals was entered on

July 11, 1975, and its Order denying the Petition for Rehear-

ing En Banc was entered on September 26, 1975. The juris-

diction of this Court is invoked under 26 U.S.C., Section

660(a) and 28 U.S.C., Section 1254.

QUESTIONS PRESENTED

1) Whether the Secretary of Labor has shown by a sub-

stantial evidence that Petitioner (Employer herein) was in

violation of the safety standards and whether the substantial

evidence rule supports said finding by the Court of Appeals

and the Occupational Safety aad Health Review Commission

(hereinafter OSHRC).

2) Whether the Secretary of Labor's violations of the re-

quirements of the Occupational Safety and Health- Act of

1970, 29 U.S.C., Section 651 (hereinafter called The Act),

the alleged safety violations and all procedures following said

colati

3) Whether the OSHRC may render initial findings and

conclusions in conflict with its Hearing Judge and make initial

3

of the witnesses and having the decision of the Hearing Judge

on whether or not safety standards have been violated.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

29 U.S.C.

Section 659(c) in pertinent part states:

“(c) If an employer notifies the Secretary that he in-

tends to contest 2 citation issued under Section 658(a) of

this Title . . . the Secretary shall immediately advise the

Section 661(i) im pertinent part states:

“(i) A hearing examiner appointed by the Commission

shall hear, and make a determination upon, any

ing instituted before the Commission, and . . . shall make a

|

:

.

4

Section 657(a) and (e) in pertinent parts state:

“(a) In order to carry out the purposes of this

ter, the Secretary, upon presenting appropriate soodaatie

to the owner, operator, or agent in charge, is authorized —

(1) to enter without delay . . . and

(2) to inspect and investigate . . .

(e) Subject to regulations issued by the Secretary, a

representative of the employer . . . shall be given an oppor-

tunity to accompany the Secretary or his authorized rep-

my the physical inspection of any work

29 C.F.R. § 1926.652(b) and (e) read in pertinent parts:

“(e) Additional precautions by of shoring and

bracing shall be taken to prevent slides or cave-int’ when

excavations or trenches are made in locations adjacent to

backfilled excavations, or where excavations are subjected

to vibrations from railroad or highway traffic, the opera-

tion of machinery, or any other source.”

STATEMENT

On January 18, 1972, Accu-Namics, Inc. (the Employer)

was installing a sewer line for the City of Lubbock, Texas.

A cave-in occurred in the trench and four employees were

killed. While futile rescue operations were in progress, a rep-

resentative of the Secretary of Labor (a Compliance Officer)

joined the multitudes at the scene and without presenting his

credentials (or even identifying himslf) to the employer and

without affording the employer an opportunity to accompany

5

him, conducted an alleged inspection under the Act. The

Compliance Officer returned the next day and conducted fur-

Thereafter the Secretary issued its citation for violations of

safety standards 29 CFR 1926.652(b) and (e) (both cited

supra) and proposed a $500.00 penalty. The Employer filed

its contest of the violations and of the preposed penalty. The

case was heard by the OSHRC Hearing Examiner (Judge).

The Secretary introduced no evidenec as to whether or not

the sides of the trench were in “unstable or soft materials”

but relied upon the after fact that a cave-in had occurred to

show its-case. The Employer proved, by all of the credible

evidence, that the trench was being dug in stable soil which

was not of soft material and that no additional precautions

were called for. The Employer’s proof then demonstrated to

the Judge the reasons why the cave-in had occurred. These

reasons for the cave-in were later adopted by the Review Com-

mission and by the Court of Appeals as the substantial evi-

dence that the trench was being dug in “unstable or soft ma-

terials,” and that the safety standards were being violated

immediately prior to the accident. Such is not the test. The

fact that an accident occurs is no evidence that a safety

standard has been violated.

The Hearing Judge, in his decision, made no determination

as to whether or not the safety standard had been violated

(Exhibit A, infra pps. A-1-A-33.). He dismissed the Secre-

tary’s case due to the violations of the Act by the Secretary's

representative in coming onto the jobsite and conducting

his entire inspection without presenting his credentials to the

Employer or affording the Employer an opportunity to ac-

comany him on his inspection. The Judge’s decision was that

the Secretary had violated the Act, his own procedural regu-

lations and substantive due process, and the citation and pro-

posed penalty were vacated.

The Review Commission ordered a review of the case,

apparenity on motion by the Secretary, although the record

is void of any motion or request of any party for a review

by the Commission.

The Review Commission, by a 2:1 vote, reversed the Judge’s

dismissal of the case on procedural grounds, and on its own

volition and without considering the Judge’s opinion on whether

or not the trench was dug in “unstable or soft conditions”

entered its own findings that the Employer had violated the

safety standards and affirmed a penalty. The Commission said:

(Exhibit B, infra, p. A-45) “. . . we specifically adopt the

Judge's findings of fact.” but it ignored the Judge's findings

on the soil conditions which were: |

“The soil being excavated on 82nd Street (the

job-site )

at the time of the cave-in was stable (Tr. 85-316, 319, 320,

399.) (Appendix A, infra, pps. A-00 to A-00) It is also

described as cemented sand and gravel (Tr. 399-400).”

(Appendix A, infra, p. A-16)

In the Court of Appeals, the Employer requested that if

the Court did not reverse the Review Commission’s decision

as not being supported by the substantial evidence or dismiss

the citation for violations of the Act by the Secretary, then

the case should be remanded to the OSHRC for a determina-

tion by the Judge as to whether or not any safety standard

C

7

had been violated by the Employer. The Court of Appeals

denied the Employer’s request. (Exhibit C, infra, pps. A-49 -

A-58), 515 F.2d 828.

The Court of Appeals affirmed the Review Commission’s

decision that there were violations of safety standards. The

Court also held that even if the Secretary had violated the

Act in his inspection procedures, that the Employer failed

to show any prejudice and that the burden is upon an Employer

to show a prejudice to him by any illegal acts of the Secre-

tary of Labor. The Court cited it opinion in Brennan v. OSHRC

(Bill Echols Trucking Co.) 5th Cir. 1973, 487 F.2d 230, 236.

mate finder of facts (not the Judge) and that the Review Com-

mission need not remand the case to the Hearing Judge for

a decision on whether or not the safety standards had been

violated.

REASONS FOR GRANTING THE WRIT

The Employer submits that the holding of the Court below

is erroneous because:

(1) The overwhelming weight of credible evidence is that

there were no violations of safety standards and that the trench

was not being dug in unstable or soft materials;

(2) The Secretary violated the express provisions of the Act,

and no valid finding of violations of safety standards can arise

therefrom.

(3) The Review Commission violated the Act, and proced-

ural due process, by enterig initial findings and conclusions

on the safety standards, which decision ignored the findings

of its Hearing Judge.

This case should be reversed and rendered not only for a

myriad of substantive and procedural blunders by the Secre-

tary of Labor, but also because the Judge, the Review Com-

mission and the Court of Appeals all became so enamored

with the procedural questions that the overwhelming proof of

the Employer’s innocence of any violations of safety standards

was never considered.

The Employer, from the beginning, denied any safety wrong-

doing and at the hearing put on a wealth of proof that it

had not violated any safety standards. The Judge, in his de-

cision, did everything but conclude that no safety standard

had been violated. The Review Commission, while saying that

it reviewed the transcript of testimony and exhibits, spent most

of its opinion overruling the Hearing Judge’s decision on pro-

cedures. The Court of Appeals accepted the Review Com-

mission’s summary of the testimony and exhibits and wrote

more law on procedures of the Review Commission and its

Hearing Judge. In the very face of a day by day practice by

the Review Commission of affirming judges’ decisions when

the Review Commission is divided by a 1:1 vote, the Court

of Appeals insists that the Act states that the Review Com-

mission, not the Hearing Judge, is the determiner of facts

and law. Nothing is farther from what the Review Commis-

sion does. Nothing could be farther from the express provisions

of the Act. The Review Commission said in its opinion that

it specifically adopted the Hearing Judge’s Findings of Fact

(Exhibit B, page A-45). The Commission then ignored the

9

Judge’s findings re the safety standards and the soil condi-

tions and considered only the undisputed causes of the accident.

The Court of Appeals did the same thing — equating the

causes of the cave-in with whether or not a safety standard

had been violated. (Exhibit C, pps. A-49 - A-58.)

There was no substantial testimony in the record that the

trench was being dug in unstable or soft conditions (29 CFR

1926.625(b), cited supra). All of the testimony was that the

soil was stable and not of soft materials. The causes of the

accident, given by the Employer’s expert witness, adopted by

the Review Commission and by the Court of Appeals are

not the test of whether or not the safety standards had been

violated. The same expert witness who listed the causes of

the accident explained that the trench was not being dug in

unstable soil or soft conditions and that there was no viola-

tion of the safety standard (SF 399-400). The Review Com-

mission and the Court of Appeals ignore the direct testimony

on soil conditions and go to the causes of the cave-in and

say because there was a cave-in there were violations of safety

standards.

Clearly the Review Commission here did enter a decision

in disagreement with its own Hearing Examiner. The Com-

mission said that: “. . . We specifically adopt the Judge's find-

ings of fact” (Exhibit B, p. A-45), and then proceeded to adopt

none of the Judge’s findings. The Court of Appeals followed

the same reasoning. Understandably, the Commission and the

Court of Appeals wanted to avoid a conflict with this Court's

opinion in Universal Camera Corp. v. N.L.R.B, 340 U.S. 474

10

(1951), where Justice Frankfurter directed that a reviewing

court must consider an examiner’s report as part of the record,

especially since the examiner, and not the review board, had

the opportunity to observe the witnesses. The Review Com-

mission and the Court of Appeals patently ignored the evi-

dence; the Hearing Judge’s findings on the soil conditions (Ex-

hibit A, p. A-16) and substituted therefor the findings of the

cause of the cave-in. (Exhibit A, p. A-14.)

The decision of the Court of Appeals, if allowed to stand,

is that:

(a) the substantial evidence rule is that a safety standard

has been violated if an accident occurs;

(b) while the Statute states that the Secretary’s representa-

time shall allow the employer an opportunity to accompany

him on his inspection, the Statute really means “may” or

“should” do so;

(c) while the Statute states that the Secretary’s representa-

tive is authorized to inspect a workplace upon presenting ap-

propriate credentials to the owner . . . it really means the rep-

resentative may or should do so;

(d) while the Statute states that the hearing examiner shall

make a report and determination on a safety violation, it

really means that he may;

(e) the burden of proof is upon the employer to show that

it was prejudiced by the illegal acts of the Secretary of Labor

before such illegal acts shall void alleged safety violations.

The Occupational Safety and Health Act of 1970 is new.

11

There is a need for this Court to set the record clear — that

the Statute, in its plain wording is definite —

(a) The Secretary has the burden of proof and that burden

is by the substantial weight of credible evidence; evidence of an

accident is not proof of a violation of any safety standard.

(b) The Courts must consider the substantial evidence in the

record and not accept what an administrative agency says

the substantial evidence is;

(c) The Secretary must follow the express provisions of

the Act. Congress intended that when it said shall it meant

shall and_ not should;

(d) The burden is not upon an employer to show that it

has been prejudiced by the illegal acts of the Secretary of Labor.

CONCLUSION

For the foregoing reasons, the Petition For a Writ of Cer-

tiorari should be granted.

Respectfully submitted,

Davip ForD HuNnT,

2001 Bryan Tower, Suite 2060

Dallas, Texas 75201

Counsel for the Petitioner

12

PROOF OF SERVICE

I hereby certify that on this ...... day of December, 1975,

three copies of the Petition For Writ of Certiorari were mailed,

postage prepaid, to:

Mr. William S. McLaughlin

Executive Secretary

Occupational Safety and Health Review Commission

1825 K Street, N.W.

Washington, D.C. 20006

For the Review Commission p p F N D | X

Mr. Baruch Fellner A

Counsel for Regional Litigation

Division of Occupational Safety & Health

Office of the Solicitor 3

U. S. Department of Labor

Washington, D.C. 20210

Ms. Judith S. Feigin

Attorney, Appellate Section

Civil Division

Department of Justice

Washington, D.C. 20430

I further certify that all parties required to be served have

been served.

Davip Forp Hunr,

2001 Bryan Tower, Suite 2060

Dallas, Texas 75201

Counsel for the Petitioner

A-1

EXHIBIT A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW

COMMISSION

1365 Peachtree Street, N.E.

Atlanta, Georgia 30309

JAMES D. HODGSON, Secretary of Labor,

United States Department of Labor, Complainant,

v.

ACCU-NAMICS, INC., Respondent.

DECISION AND ORDER

OSHARC Docket No. 477

APPEARANCES:

James E. White, Attorney at Law, Dallas, Texas,

for the Secretary of Labor

David Ford Hunt, Dallas, Texas, and Hugh Anderson,

Lubbock, Texas, Attorneys at Law, for Respondent

STATEMENT OF CASE

This is a proceeding under Section 10(c) of the Occupational

Safety and Health Act of 1970, 29 U.S.C. 651 ef seg., 84 Stat.

1590 (hereinafter referred to as the Act), to review a Citation

For Serious Violation issued by the Secretary of Labor (herein-

after referred to as the complainant) pursuant to Section 9(a)

of the Act, and a proposed assessment of penalty in the amount

of $500 upon such violation pursuant to Section 10(a) of the

Act.

A-2

The Citation For Serious Violation was issued on January

27, 1972 and alleged a violation of 29 CFR 1926.652(b) and

(e) and 29 CFR 1926.653(p). The three violations were alleged

uary 29, 1972, which was within fifteen days of receipt of the

complainant’s Notification of Proposed Penalty and Citation for

Serious Violation, the respondent notified the complainant that

it wished to contest the alleged serious violation and proposed

penalty. The Citation for Serious Violation described the alleged

violations of 29 CFR 1926.652(b) and (e) and 29 CFR 1926.

653(p) as follows:

Employees working in trench equipped with portable

wumh ails inal 6 aoa ie hae

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working at the bottom of the trench as required

in 1926.652(b). c

Additional precautions by means of shoring or bracing

taken to prevent slides or cave-ins

A-3

in shoring will support the walls of a trench “to the trench

bottom”, and therefore does not offer protection required

in 1926.652(b) and (e).

Review Commission of the Notice of Contest by respondent.

The Commission assigned the case to this judge for purposes

of conducting a hearing pursuant to Section 10(c) of the Act.

The hearing was held in Lubbock, Texas on May 30 and May

31, 1972. No additional parties desired to intervene in the

proceedings.

On May 30, 1972, respondent filed a Motion to Dismiss

based on several allegations that the Act is unconstitutional. In

addition a demand was made for a jury trial. These motions

were denied at the commencement of the hearing on May 30,

1972. (Tr. 2-5)

ISSUES

The first issue for determination is whether respondent was

engaged in a business affecting commerce within the meaning

of the Act. If the Act is applicable to respondent, it further

contends that the inspection was illegal and void. This issue

arises as the result of the compliance officer’s failure to properly

identify himself and the purpose of his visit to the workplace on

January 18 and 19, 1972. The first meeting with respondent's

management was on January 20, 1972.

If the above two issues are resolved favorably for complain-

ant, then a determination must be made as to whether there

was a Violation of 29 CFR 1926.652(b) and (e). If a violation

of one or both of the standards occurred, a further question

A4

arises as to whether the violation was of a serious nature under

the criteria provided by Section 17(k) of the Act. If a violation

did occur, a determination must also be made as to the ap-

propriate penalty to be imposed under the Act.

While the Citation for Serious Violation refers to 29 CFR

1926.652(p), complainant does not contend respondent vio-

lated this section since it only contains a definition of “trench

shield.” The section was cited to show that the shield used by

respondent was improper for purposes of satisfying the require-

ments of 29 CFR 1926. 652(b) and (e). (Tr. 270; Complain-

ant’s Proposed Conclusions of Law IV)

FINDINGS OF FACT

The evidence of record has been carefully considered and

evaluated in its entirety. The facts hereinafter set forth are

specifically determined in resolving the issues presented in this

case.

Respondent is a corporation with its principal office and place

of business at Lubbock, Texas. It was at all times material

hereto engaged in the business of installing underground water

and sewer pipes or lines and in rendering consultation services

to management of other construction companies. (Complaint

and Answer; Tr. 17) Its principal stockholder is Robert Dra-

goo, who acts as general manager and president of the com-

pany. (Tr. 17) He has worked in the utility construction indus-

try for 15 years. (Tr. 20, 273) Prior to his association with

Accu-Namics, Dragoo was employed as general manager for

R. H. Fulton, Inc., who was engaged in the installation of

water lines and cross-country gas lines. (Tr. 21, 274)

A-5

Respondent had been incorporated for approximately 24

years at the time of the hearing. (Tr. 17) It is the smallest

utility contractor in the Lubbock area. (Tr. 26) During the

year 1971 it had an average daily employment of approxi-

mately 12 people. (Tr. 25) During its corporate existence, it

has engaged in two construction projects. One of the con-

struction jobs was a river control project in Nebraska. The

project was administered from respondent's Lubbock office.

(Tr. 18) In connection with the Nebraska project, plans and

specifications, as well as correspondence, were transmitted be-

tween Lubbock, Texas, and Nebraska. Respondent’s president

made two trips to the Nebraska project. Materials for the

project were obtained from plants in Chicago and Pueblo,

Colorado. (Tr. 18-19)

Respondent’s president has also done consulting work for

various contractors throughout the United States. The principal

consulting work was done for R. H. Fulton, Inc. of Lubbock,

Texas, and Pipeline Management and Construction, Joliet, Il-

linois. Respondent has received correspondence from them re-

lating to its president’s consulting work. (Tr. 19-20)

The second construction project undertaken by respondent

involved the installation of approximately 14,700 feet of sewer

line for the City of Lubbock, Texas. The work consisted of

installing four blocks of a 15” system on 58th Street and

approximately 11,000 feet of 21” and 24” pipe along 82nd

Street. The work was performed under City of Lubbock Gen-

eral Work Order No. 10473. (Exs. H, I; Tr. 23-24, 52, 64,

307) The contract for the project was entered into between the

City of Lubbock and the respondent in August, 1971. (Ex. 1)

A

The Lubbock sewer project was the only construction work

performed by respondent during 1971. (Tr. 25) It was com-

pleted in April, 1972. (Tr. 99)

On August 24, 1971, Robert Dragoo and two of respond-

ent’s employees, Darrell and Bill Conklin, visited the OSHA

office in Lubbock for the purpose of discussing the sewer

project. (Ex. K; 243-244, 254) They wanted to ascertain the

OSHA requirements which pertained to the project and to

determine if respondent met the safety requirements for the

job. (Ex. K; Tr. 263) A discussion was held with Compliance

Officer Jerry Bailey but he was not experienced in the opera-

tions of the pipeline industry and was unfamiliar with the

detailed requirements for trenching operations. (Tr. 263) Copies

of the standards and the Act were furnished to Dragoo. (Tr.

264, 289-290) Dragoo was informed that if he would like to

return within the next three weeks the construction specialist,

a compliance officer whose specialty was construction, would

discuss the matter with him. (Ex. K; Tr. 259-260, 263) The

construction specialist at the time was in school. (Tr. 259)

When he reported for duty the memorandum of the discussion

between Dragoo and Compliance Officer Bailey was not brought

to his attention. (Tr. 266) Dragoo and the other two employees

of respondent did not return to the OSHA office after the initial

visit on August 24, 1972. (Tr. 265)

Respondent's president, Robert Dragoo, designed a portable

steel frame and steel sheeted box, hereinafter referred to as a

trench shield, for use in connection with the Lubbock sewer

project. (Tr. 29, 45) The trench shield was manufactured by

respondent. (Tr. 29-30) It had steel plates on the sides. (Tr. 56)

A-7

The shield was designed to extend downward into a ditch to a

depth of 14 feet. (Tr. 30, 56) It was 22 feet long and of variable

width. The design was made so that the width could be varied

from 28” to 44”, depending upon the width of the ditch. (Tr.

45, 49-50)

The shield had a hopper in front and one in back that was

designed to hold 3 cubic yards or 7800 pounds of gravel or

subgrade embedment. (Ex. S; Tr. 128) The shield weighed

5064 pounds and the trailer weighed a total of 3,225 pounds.

(Ex. S; Tr. 302) The shield was supported within a mobile

frame that rode above the ditch on the right-of-way behind the

ditching machine on four wheels and was normally pulled by

the ladder trencher. (Ex. D; Tr. 28, 45, 48, 50) The four

wheels which supported the shield were approximately 28 or

29 feet from front to back. The front and back wheels were

also constructed so that the distance in width between them

was 11 feet or 5% feet on either side of the center line of the

ditch. (Tr. 50) Each wheel of the shield frame was designed

to carry 5,855 pounds. (Ex. S; Tr. 312) No similar protective

shields were being used in Lubbock County, Texas. (Tr? 55, 73)

The protective shield was designed for several purposes which

included: (1) protection of workmen from a cave-in, (2) pro-

tection of materials that might fall into the ditch as employees

worked around the area, (3) guarding against sloughing of

materials on top, particularly where there were cable, water or

gas lines in the proximity, and (4) guarding against the waste

of embedment material. (Tr. 29, 31-32, 42, 287-288) There

were also additional side benefits in that it carried a walkway

with handrails over the ditch to permit workmen to go from

A-8

one side to the other as necessary during their work. It also

helped to keep backfill material at a distance greater than four

feet from the ditch since it had to be towed. (Tr. 43, 287)

Normal oprations for the Lubbock sewer project consisted

of staking the line, preparing the right of way to be excavated

to provide a suitable surface on which to operate the trenching

machine, trenching of the ditch to the necessary depth, installa-

tion of the pipe, setting of a manhole if required in a particular

location, handling of embedment material, stringing pipe, back-

Se een ee ee

7-28)

The Lubbock sewer project consisted of the installation of

two separate sections of sewer line. One portion was located on

58th Street. The second part of the project was along Memphis

Avenue and 82nd Street. Memphis Avenue runs perpendicular

to 82nd Avenue. The sewer line followed Memphis Avenue and

then turned at a right angle and went along 82nd Street. (Ex.

H; Tr. 35) The line proceeded on down 82nd Street crossing

Quaker Avenue and then on to Slide Road. (Ex. H)

The trench on the sewer project varied in depth from 8’ to

28’. The variance in depth was necessary since the line and

the topographical variation in the surface had to be dealt with

in regard to the flow line of the pipe itself. The trench varied

in width from 28” for the 15” pipe to 39” for the 21” pipe.

(Tr. 24, 152)

The paving on 82nd Street from Memphis Avenue to Slide

Road was 20 feet wide. (Ex. H; Tr. 69, 93) The city plat for

the sewer project reflected that a 20” high pressure natural gas

A-9

line was located 28 feet north of the center line of 82nd Street.

(Ex. H; Tr. 35, 70-71, 23) The sewer line was to be con-

structed 10’ south of the edge of the pavement on 82nd Street.

(Ex. H; Tr. 71) The city plat indicated that the distance be-

tween the center of the gas line and the center of the sewer

line was to be 8 feet. (Ex. H; Tr. 96, 509) The trench excava-

tion for the sewer ren parallel to the gas line along 82nd Street

to Slide Road. (Ex. H; Tr. 35, 93, 96) The gas line was crossed

at Memphis Avenue when respondent made the turn to parallel

82nd Street. (Tr. 109)

The natural gas line was installed along 82nd Street in April

1967. (Tr. 90, 93) The gas line was approximately 5 feet deep

from ground level to the bottom of the trench. There was 40”

of cover on top of the 20” gas line. (Tr. 90, 94) The gas line

trench had a width of approximately 30” at the bottom. (Tr.

94) Respondent was aware of the natural gas line as it was

reflected on the city plat and the vents to the pipe had been

observed. (Tr. 36-37, 112, 297-298) Respondent did not use

any additional shoring or bracing when excavating parallel to

the gas line. It relied on the trench shield to provide the neces-

sary protection. (Tr. 39-40) In addition all employees were

continually given instructions to watch for cracks throughout

the job. (Tr. 308-309) The crew foreman and other employees

looked for visible signs which would indicate that the top of

the ground might give away. (Tr. 112, 157)

On January 18, 1972, the sewer line was being installed

between Quaker Avenue and Slide Road on 82nd Street. (Tr.

27, 101, 146-147) Approximately 12,000 feet of the project

had been completed as of January 18, 1972. (Tr. 52, 307)

A-10

Operations were normal on that date. A ladder trencher was

cutting the ditch with the shield attached directly behind it.

(Tr. 161, 148). The front of the shield and bucket line were

approximately 25’ apart at the top of the ditch. (Tr. 103) The

ladder trencher extended into the ditch at an angle. (Tr. 103)

The ladder trencher and shield were approximately 8 to 10

feet apart at the bottom of the shield. (Tr. 104)

No shoring or bracing was being used on January 18, 1972.

The shield was the only protective device for the men working

in the trench. (Tr. 104) The trench was approximately 24 feet

deep and the shield lacked approximately 10 feet of extending

to the bottom of the ditch. (Tr. 30, 106) A fixed rung ladder

made out of 1” pipe, which attached to the side of the trench,

extended the full depth of the shield. A rope ladder was used

to extend to the bottom of the ditch. (Tr. 131-132)

The embedment rock was being placed and the pipe laid to

grade. A bulldozer was keeping backfill pushed away from the

ditch. Eddie Maxwell, Xeviar Sanchez, Raymond Rodriguez

and Holly Murrell were working in the ditch. Two of them were

removing loose dirt from the bottom of the ditch and shoveling

it into the ladder trencher. The other two were subgrading,

putting gravel in the ditch and laying the pipe to grade. (Tr.

101-102, 125, 155) The pipe was being lowered into thé trench

through the shield. (Tr. 29)

The ladder trencher being used on January 18, 1970, was a

160 Buckeye which cut to a maximum depth of 26 fee:. (Tr.

149) The width of the cut was 39”. (Tr. 152) On January 18,

1972, it was cutting a ditch of approximately 23 feet deep.

Some of the top surface had been previously removed by a bull-

A-11

dozer. (Tr. 150) The width of the trencher machine was 8 feet.

(Tr. 152) It was proceeding adjacent to the gas line as it cut

the trench. (Tr. 154)

On the afternoon of January 18, 1972, a cave-in occurred.

(Tr. 104-105, 155) Dirt came underneath the shield. (Tr. 107)

At the point of the cave-in the trench was approximately 24

feet deep. (Tr. 30) The four men working in the ditch were

killed. (Tr. 106) Two of the men were working inside the

shield and two were working outside the shield within four or

five feet of the ladder trencher. (Tr. 111, 124) No shoring or

bracing was being used to protect the two men who were work-

ing outside the shield. (Tr. 111-112) They were found next to

the ladder trencher. (Tr. 131) The crew foreman had observed

the walls of the trench immediately prior to the accident and

had observed nothing unusual about them. (Tr. 125) Normal

operating procedures were being followed at the time of the

cave-in. (Tr. 147)

Instructions had been given to all employees to work inside

the protection of the trench shield. (Tr. 137, 299) However,

the employees preferred to work outside the shield. The crew

foreman was aware of their working outside the shield. He

had observed them working outside the trench on other occa-

sions. In lieu of ordering the employees to work within the

protection of the shield, they were instructed to stay as close

as they could to the inside of the shield. (Tr. 139-140)

There was an undisturbed column of soil approximately 4’

from the north edge of the sewer line to the 20” gas line. (Tr.

109, 136, 153) Two of the wheels of the portable shield rolled

A-12

in the center of the backfill from the gas line trench. (Exs. 9,

10, W; Tr. 127-128, 153) On the afternoon of January 18,

1972, the hoppers on the shield were more than half full. (Tr.

129) The undisturbed column of soil sheared off approximately

5% feet from the center of the sewer trench where the wheels

of the portable shield were located. (Exs. W, 7, 9, 10) The gas

line was exposed after the cave-in. (Exs. 6, 9, 10; Tr. 136)

On the day of the cave-in the soil removed from the trench

was placed in a berm on the north side of the sewer line by a

bulldozer approximately 5% feet from the center line of the

trench. (Ex. W; 112-113, 120) The height of the berm was

approximately 3 to 3% feet above the ground level. (Ex. W)

The berm was to the north side of the gas line. The soil was

returned to the trench as backfill by a bulldozer. (Tr. 113) The

bulldozer usually operated beside the ladder trencher. (Tr. 118-

119) On occasions the bulldozer operated on top of the gas

line. (Tr. 113-114)

At the time of the accident the bulldozer and ladder trencher

were not being operated. (Tr. 121-122, 157) The bulldozer

was not operating because it needed lubrication. (Tr. 121, 158)

It had a bad hydraulic leak and would only run 20 to 30

minutes prior to its having to be oiled. (Tr. 124) All equipment

had been shut down two or three minutes prior to the cave-in.

(Tr. 123) The engine of the ladder trencher was left running.

(Tr. 158) There was usually some light traffic on 82nd Street.

(Tr. 158)

The walls of the trench at the cave-in contained four layers

of soil of different characteristics. The first five feet from the

A-13

surface downward was a brown organic clayey silt. The top

soil was classified as ML (inorganic silts and very fine sands,

rock flour, silty or clayey fine sands or clayey silts with slight

plasticity) according to the Unified Soil Classification Table.

From five feet to twelve feet downward the soil was a white

and tan caliche. This soil was classified as CL (inorganic clays

of low to medium plasticity, gravelly clays, sandy clays, silty

clays, lean clays) according to the Unified Soil Classification

Table. From twelve feet to approximately nineteen feet down-

ward the soil was a slightly reddish sand which was friable

even under fingers. It was classified as SM (silty sands, sand-

silt mixture) according to the Unified Soil Classification Table.

From nineteen feet downward the soil was a hard caliche and

sand mixture. (Ex. W; Tr. 354-355, 377, 410)

The collapse of the trench occurred at the junction along

the south side of the gas line and the natural soil for a length

of approximately 40 feet. A rectangular block of solid mass

with curved edges at the west and east ends slid into the trench.

(Ex. W; Tr. 107, 133, 347-348) There was a uniform cave-in

for the 40 feet length. (Tr. 354) The cave-in was in front and

behind the shield as weil as beside it. (Tr. 133) This block of

soil mass sheared vertically at the junction along the south side

of the natural gas line to a depth of approximately 12 feet and

had an inclined failure surface extending to a depth of 19 feet,

or approximately 5 feet below the shield. (Ex. W; Tr. 139,

347-348) The block of soil mass on the top of the collapse had

a rigid body movement with very little crushing of the soil.

(Ex. W; Tr. 349) The soil slid downward and into the sewer

A-14

line trench. (Tr. 327, 349) The shield caught the top soil. (Tr.

137)

(See Illustration reproduced on page A-15)

An investigation conducted by an expert in soil dynamics,

soil analysis and soil mechanics revealed that the cave-in oc-

curred because of the simultaneous occurrences of several con-

ditons, namely: (Ex. W; Tr. 394-396)

(1) The soil between 12 and, 19 feet was a slightly

was friable even under finger tips.

(2) The moisture content of the fine sand between 12

and 19 feet was particularly high and resulted in low

shear strength.

(3) The construction of the trench for the existing gas

line at 4 feet away created a weak vertical plane. The

bond between the filled-in soil in the trench and the origi-

nal undisturbed soil was so small as to cause a top tensile

zone in soil, as the sewer trench was cut.

(4) The wheel carrying the weight of the shield and

gravel hopper acted as a concentrated load at the

vertical plane. .

As long as the four foot column of soil between the gas line

and the sewer trench held, there was no chance of a cave-in.

to the white and tan caliche, which in turn failed. The weight

was then shifted to the slightly reddish fine sand which also

failed. (Tr. 407-408)

20—-

The scene of the cave-in is illustrated as follows:

A-15

SOIL CUMPED

FROM THE .

TRENCH

G.L

WHEEL 4

3"

BROWN ORGANIC

CLAYEY SILT

(TOP SOIL)

GAS LINE

WHITE AND

TAN CALICHE

FAILURE SURFACE

is -

SLIGHTLY REDDISH

FINE SAND {TOO

FRIASLE EVEN

UNDER FINGERS)

.

PTH OF SHIE f

\

HARD CALICHE AND

SAND MIXTURE

SOL SLIPPED

L-INTO WITHOUT

"| CRUSHING

‘oO

'

<

N

} °

TRENCH

A-16

Soil conditions in Lubbock County vary. (Tr. 295) In gen-

eral the soil is regarded by utility contractors and those as-

sociated with such work as being stable for installing water or

sewer lines. (Tr. 80-81, 83, 85, 316, 399-400, 435-437, 455,

458, 477, 486-487) Shoring the full length of a trench has not

been deemed necessary by utility contractors in excavating

trenches in Lubbock County. Any shoring done in the area

has been only with respect to the first 8 or 10 feet of the

trench. (Tr. 80, 86-87, 285, 462-463) The soil being excavated

on 82nd Street at the time of the cave-in was stable. (Tr. 85,

316, 319-320, 399) It is also described as cemented sand and

gravel. (Tr. 399-400)

Dragoo was aware of the requirements of 29 CFR 1926.

652(b) and (e) when planning and designing the Lubbock

sewer project. He did not consider the area in which the pipe

was to be laid to consist of unstable or soft material except for

a stretch only 82nd Street from Memphis Avenue to Quaker

Avenue which had been an old lake bed. she trench was ap-

proximately 8 to 10 feet deep in this area. (Tr. 290-292) This

area was excavated with a backhoe in lieu of using the ladder

trencher. The walls were supported by hydraulic gang shores

for approximately one half a mile. (Tr. 39, 292) The area was

located a mile east of the accident scene. (Tr. 291) Shoring

was always available on the project in the event it was de-

termined to be necessary for completing any part of the sewer

line. (Tr. 308)

Prior to the cave-in on January 18, 1972, respondent had

three instances in which a cave-in was prevented by the shield.

The first occurred on 58th Street near the beginning of the

A-17

project and occurred after an extremely heavy rain. There was

a large drainage ditch on the north side of the sewer ditch

which held a considerable amount of water and contributed to

the difficulty. The project was shut down because of the rain

for approximately a week. When respondent again commenced

laying pipe the soil to a depth of approximately 4 or 5 feet

split out and leaned over a couple of inches into the shield,

which contained the soil. (Tr. 32-33, 53, 336) The ditch at the

time was approximately 17 or 18 feet deep. (Tr. 33)

The second instance of a near cave-in also occurred on 58th

Street and was due to inundation of the ditch by water through

an existing manhole. The soil split approximately 5 or 6 fect

deep from the surface downward and leaned into the pro-

tective shield, which held the soil. (Tr. 33-34, 53, 336) The

third instance occurred on Memphis Avenue. There was a small

water line within 5’ of the center of the sewer line. (Tr. 34,

108) The water line had been installed within two months of

the installation of the sewer line at that location. (Tr. 37) The

soil split approximately 5 feet deep from the surface and leaned

into the protective shield, which contained it. (Tr. 34, 53, 336)

The water line was exposed by the splitting of the soil. (Tr. 34)

The third instance was approximately two miles from the cave-in

on 82nd Street. (Tr. 34-35) It was caused by a backfill loader

shearing off the column of undisturbed soil between the water

line and the sewer line. (Tr. 107-108) There was approximately

3° of undisturbed soil between the two lines. (Tr. 108)

After the accident on January 18, 1972, the project was

ceased until February 14, 1972. Pipe was not laid again until

February 16, 1972. The shield was extended to the bottom of

A-18

the trench and the load bearing of the wheels to the trench

was spread out by installing athey tracks on it in lieu of wheels.

(Tr. 193-194, 333)

Subsequent to the cave-in it was discovered that the gas line

was not in the position along 82nd Street as had been indicated

by the city plat. The center of the gas line was actually only

26’ 5%” from the center of 82nd Street. (Ex. II; Tr. 504-506)

The City of Lubbock determined that the sewer line as installed

by respondent was in its proper location. (Tr. 144-145)

Compliance Officer Herbert M. Kurtz conducted an investi-

gation of the cave-in between Quaker and Slide roads on Jan-

uary 18 and 19, 1971. (Tr. 161-162) He was on the scene

approximately one hour after the cave-in. (Tr. 236) He did not

identify himself when he first arrived but did later in the after-

noon tell the superintendent who he was. (Tr. 236-237) He met

with officials of respondent for the first time on January 20,

1972. No one was at the scene when he went out there on

January 19, 1972. (Tr. 237) He was accompanied on the

inspection on January 19, 1972, by the area director. (Tr. 240)

A serious violation was determined by the compliance officer

and concurred in by the area director. He took into account

the depth of the trench and the fact that the shield was ap-

proximately 10 feet from the bottom of the trench. He con-

cluded that a cave-in would result in serious physical harm or

death to the employees. (Tr. 229-230, 240) The gravity of the

violation was also taken into consideration. (Tr. 233)

A penalty of $500.00 was proposed for the alleged violation.

In arriving at the penalty of $500.00, the complainant com-

A-19

menced with an unadjusted penalty of $1000.00 and allowed

a 50 percent reduction. Respondent was allowed a 20 percent

reduction for previous history, a 20 percent reduction for good

faith and a 10 percent reduction for size. (Tr. 230-232, 241-

242) The gravity of the violation was also taken into considera-

tion in arriving at the proposed penalty of $500.00. (Tr. 233)

LAW AND OPINION

1. Jurisdiction

The first issue for determintaion involves the question of

whether respondent was engaged in a business affecting com-

merce within the meaning of the Act. Unless respondent affects

commerce within the intendment of the Act, the Act would

have no applicability to its operations.

The respondent’s position on this issue~is essentially set

forth as its Proposed Finding of Fact No. XXIV, which states:

ness or agency outside the State of Texas. The record does not

disclose where the materials, supplies and equipment used on

A-20

the job were secured. Without such facts it is not possible to

conclude whether any portion of the job served any person,

business or agency outside the State of Texas.

Section 3(3) and 3(5) of the Act, which are applicable to

this question, provide:

Sec. 3. For the purpose of this Act —

(3) The term “commerce” means trade, traffic, com:-

merce, transportation, or communication among the .- /-

eral States, or between a State and any place outside

thereof, or within the District of Columbia, or a possession

of the United States (other than the Trust Territory of

the Pacific Islands), or between points in the same State

but through a point outside thereof.

(5) The term “employer” means a person engaged in

a business affecting commerce who has employees, but

does not include the United States or any State or political

subdivision of a State.

In evaluating the principles as stated in earlier cases, one

must bear in mind the changing attitudes of the courts in recent

years, as well as the likelihood that the applicable legislation

differs in its terms from the law applicable to those decisions.

“There is no single concept of interstate commerce which can

be applied to every federal statute regulating commerce.”

McLeod v. Threlkeld, 319 U.S. 491, 495 (1943) Prime con-

sideration must be given to the objective of Congress and the

evil it sought to remedy.

The Act specifically indicates that Congress intended to in-

vest in the complainant the fullest jurisdictional breadth con-

stitutionally permissible under the Commerce clause. Congress

A-21

plainly states in Section 2 of the Act that personal injuries and

illnesses arising out of work situations impose a substantial

burden upon and are a hinderance to interstate commerce. It

further declares in Section 2 that its purpose and policy in

enacting the legislation was to assure so far as possible every

working man and woman in the nation safe and healthful work-

ing conditions through the exercise of its power to regulate

commerce among the States. The application of the Act was

not made to depend upon the fortuitous circumstances that a

particular employer is engaged in interstate commerce.

The determining factor under Section 3(5) is not whether

an employer is engaged in commerce but whether its busines

affected commerce. The selection of the term “affecting com-

merce’ ’in lieu of engaged in or. some similar term is significant

in the resolution of this issue. The word affect has the widest

conceivable scope both from “its dictionary definition and its

judicial interpretation. The dictionary says: “To act upon;

produce an effect on; touch’, and the cases are equally unani-

mous in emphasizing this inclusive character and so hold it to

mean ‘acting upon’, ‘working a change in’ or ‘concerning’.”

N.L.R.B. v. Suburban Lumber Co., 121 F. 2d 829, 832 (3rd

Cir. 1941) By the use of the term “affecting commerce” it is

concluded that Congress intended to regulate not merely em-

ployers involved in transactions or goods directly moving in

interstate commerce but also indirect activities which in isola-

tion might be deemed to be merely local but in the interlacing

of business across state lines adversely affect commerce.

The Supreme Court has long recognized that the commerce

power is not confined in its exercise to the mere regulation of

A-22

commerce among the States. “It extends to those activities

intrastate which so affect interstate commerce, or the exertion

of the power of Congress over it, as to make regulation of them

appropriate means to the attainment of a legitimate end, the

effective execution of the granted power to regulate interstate

commerce.” United States v. Wrightwood Dairy Co., 315 US.

110, 119 (1942) The reach of the power extends to those intra-

state activities which in a substantial way interfere with or

obstruct the exercise of the granted power. United States v.

Wrightwood Dairy Co., supra. °

Under the Act the complainant is authorized to set manda-

tory occupational safety and health standards applicable to

businesses affecting commerce. These standards in most in-

stances mean additional costs to the employer. For instance,

in the case of a utility contractor who is required to shore,

brace or slope sides of trenches there is certainly additional

costs involved in carrying out the provisions of 29 CFR

1926.652(b). A utility contractor who is not required to com-

ply with these standards (assuming the trenches in both cases

were in unstable or soft material) would have an economic

advantage in competing with a utility contractor who is required

to comply with the standards.

The utility contractor who does not have to comply could

force competitors engaged in interstate commerce to surrender

the market or reduce prices in order to obtain it. This would

tend to affect adversely the intent of Congress. Workers for

employers engaged in interstate commerce could conceivably

lose their jobs and have to work for intrastate employers.

(Obviously Congress was aware of this problem when it used

A-23

the term “affecting commerce.”) Under such circumstances the

national power to establish safety standards extends to such

control over intrastate transactions as is mecessary and ap-

propriate to make the regulation of the interstate commerce

effective. See United States v. Wrightwood Dairy Co., supra,

wherein the Supreme Court concluded that the national power

to regulate the price of milk moving interstate into the Chicago

marketing area extended to control over intrastate transactions

there as was necessary and appropriate to make the regulation

of the interstate commerce effective. In Wrightwood Dairy the

marketing of intrastate milk affected the price structure of

interstate milk. The same economic analogy appears applicable

with respect to requiring the respondent to comply with the

safety standards.

The facts of this case plainly reveal that there was also a

more direct involvement in interstate commerce. The activities

of respondent had a close, intimate, and substantial relation

to trade, traffic and commerce among the states. Its activities

with respect to management consulting service and construction

extended over and across State lines. During its 242 year

existence it completed a river control project in Nebraska, a

sewer line project in Lubbock, Texas, and rendered consultative

services to firms in Lubbock, Texas, and Joliet, Illinois. Where

the general activities of a corporation extend over and across

state lines, it has been held to affect interstate commerce.

National Labor Relations Board v. Kinner Motors, 152.F. 2d

816 (9th Cir. 1946)

The record is also quite clear that correspondence, plans and

specifications, which were vital to respondent’s operations, were

A-24

of interstate commerce are vital to the functioning of the com-

pany they are deemed to be engaged in interstate commerce.

North American Company v. Securities & Exchange Commis-

sion, 327 U.S. 686 (1946) “Interstate communication of a busi-

ness nature, whatever the means of such communication, is

imterstate commerce regulable by Congress under the Constitu-

tion.” Associated Press v. National Labor Relations Board, 301

U.S. 103, 128.

2. Legality of Inspection Procedure

Respondent submits that the inspection preceding the issu-

ance of the Citation for Serious Violation and proposed penalty

was illegal and void and that consequently the Citation for

Serious Violation and proposed penalty are illegal and void.

This argument is predicated on respondent's contention that

the compliance officer did not present his credentials to any

agent, servant or employee of respondent, explain the nature

and purpose of the inspection or indicate the general scope of

his inspection to respondent. (Res. Proposed Findings of Fact

No. XII}

Section 8(a) of the Act provides as follows:

(a) In order to carry out the purposes of this Act, the

Secretary, upon presenting appropriate credentials to the

owner, operator, or agent in charge, is authorized —

(1) to enter without delay and at reasonable times any

factory, plant, establishment, construction site, or other

area, workplace or environment where work is performed

by an employee of an employer; and

(2) to inspect and investigate during regular working

hours and at other reasonable times, and within reason-

ee.

The inspection procedure is further controlled by subsection (e)

In addition subsection (gX2) of Section 8 authorizes the com-

plainant to prescribe such rules and regulations dealing with

the inspection of an employer’s establishment as he deems

necessary.

Pursuant to authority under the Act the complainant has

promulgated regulations concerning the inspection procedure.

Section 1903.7(a) of 29 CFR provides, in part, as follows:

***At the beginning of an inspection, Compliance Safety

and Health Officers shall present their credentials to the

owner, operator, or agent in charge at the establishment;

explain the nature and purpose of the inspection; and indi-

cate generally the scope of the inspection***.

Subsection (f) of Section 1903.7 states that “[I]nspections shall

be conducted in accordance with the requirements of this part.”

Section 1903.8(a) of 29 CFR further provides, in part, as fol-

lows:

***A representative of the employer and a representative

authorized by his employees shall be given an opportunity

D. 2. Refusal to Permit Inspection-Warrants

a. ***The CSHO shall tactfully present his credentials to

the owner, operator or agent in charge at the establish-

ment and explain generally the nature and purpose of

visit. He should further explain generally the scope of

inspection and the records he wishes to review.

E. Opening Conference

1. Purpose

At his interview with the employer or his designated

representative, the CSHO shall:

a. Inform the employer that the purpose of his visit is

to make an investigation to ascertain whether the

employer is in compliance with the requirements

of the Act.

b. Outline in general terms the scope of the inspection,

including records he may desire to review (See para-

graph F.2.c of this Chapter), employee interviews,

physical inspection of the worksite or

and the closing conference with the employer or his

designated representative to discuss the inspection

c. Give the employer copies of laws, standards, regula-

tions, and promotional materials as applicable.

1. Pay oF Gas Spas

The compliance officer testified that he made his inspection

on January 18 and 19, 1972. (Tr. 161-162) Photographs intro-

duced into evidence by complainant were taken on those dates.

(Tr. 162, 167) The following testimony of the compliance

to his contacting any representatives of the respondent: (Tr.

236-238)

THE COURT: How soon after the accident were you there?

THE WITNESS: Approximately one hour.

THE COURT: Had you come to the scene as a result of a

telephone call from someone —

THE WITNESS: No, sir.

THE COURT: Or news announcement? How did you hap-

pen to be there that soon?

THE WITNESS: I was making an investigation close to that

A-28

area when we heard that they had a cave-in on 82nd Street.

THE COURT: So you went over?

THE WITNESS: So I went over to see what had taken place.

THE COURT: Who did you contact when you were there

on the 18th?

THE WITNESS: On the 18th I did talk to Mr. Conklin that

afternoon late, who was the superintendent at the job.

THE COURT: In other words, did you identify yourself to

Mr. Conklin?

THE COURT: Yes, sir, I told him who I was.

THE COURT: When you first got there?

THE WITNESS: No, sir, later, because it was such a state

of confusion over there. You really couldn’t tell who was the

contractor and who was in charge, there were so many people,

until I started asking questions and found out who the super-

intendent was.

THE COURT: Shortly after you got there, did you identify

yourself?

THE WITNESS: I don’t know, it might have been an hour

or so go by until I did. ss

THE COURT: Then after you identified yourself, did you

conduct an inspection with anyone with the company?

THE WITNESS: No, sir, I did not do anything with the

company until later.

THE COURT: Well, where (sic.) did you do anything with

the company?

A-29

THE WITNESS: I believe it was on the 20th that I met

THE COURT: Who did you contact when you went back

on the 19th?

THE WITNESS: There was no one out there at the time.

THE COURT: So you didn’t contact anyone for the com-

pany on the 19th either?

THE WITNESS: No, sir.

THE COURT: The 20th was the first contact you had with

the company to discuss inspection with them.

THE WITNESS: The probability, yes, sir.

The Act recognizes that government personnel must have the

right of entry in order to carry out an effective national occu-

pational safety and health program. Congress conferred broad

powers of investigation subject to two basic requirements.

Section 8(a) of the Act authorizes an inspection by a com-

pliance officer “upon presenting appropriate credentials to the

owner, operator or agent in charge.” Subsection (¢) of Section

physical inspection of the workplace. These basic requirements

are mandatory rather than directory. It is obvious that Congress

inspections prior to formally contacting the employer presenting

proper credentials, advising him of the inspection and affording

a reresentative of the employer an opportunity to accompany

the compliance officer.

A-30

The resolution of this issue requires that the interests of the

complainant be balanced against the rights of the respondent.

The record is quite clear that complainant did not follow the

express provisions of the Act, the regulations promulgated by

him or the procedural guidelines issued in the Compliance

Operations Manual. An employer is entitled to adequate pro-

tection against such excessive zeal of compliance officers. As

the Second Circuit said in Hammond v. Lenfest 398 F. 2d at

715, departures from an agency’s procedures “cannot be recon-

ciled with the fundamental principle that ours is a government

of laws, not men.”

The law on this issue is quite clear. The court in United

States v. Heffner, 420 F. 2d 809 (4th Cir. 1969), wherein the

Internal Revenue Service failed to follow procedures it issued

to its special agents, stated: (Pages 811 and 812) .

An of the

mn th ee he tng ee Be war

When it fails to do so, its action cannot stand and courts

States ex rel. Accardi v. gy 347 U.S. 260, 74

Supreme Court in Service v. Dulles, 354 U 363, 77

S.Ct. 1152, 1 L.Ed. 2d 1403 (1959), and Vitarelli v.

Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed. 2d 1012

(1959), to vacate the discharges of government employees.

It is of no significance that the procedures or instructions

established procedures was held a violation of due process.

S.

not obligated to impose upon himself these more rigor-

out substantive and procedural standards, * * * having

done so he could not, so long as the Regulations re-

mained unchanged, proceed without regard to them.

354 U.S. at 388, 77 S.Ct. at 1165. See also Vitarelli v.

teristic of an agency's violation of its own procedures.

In Hollingsworth v. Balcom, 441 F. 2d 419, 421 (6th Cir.

1971), the court stated “that administrative rules and regula-

tions must be followed in order to comply with the require-

ments of basic fairness implicit in the concept of due process

of law.” The court in Bluth v. Laird, 435 F. 2d 1065, 1071

(4th Cir. 1970) wherein the Army disregarded its regulations

with respect to temporary deferments from overseas duty, stated

Cadi ‘sides aie axe bieaas a Gin Somalis st

that when the sovereign has established rules to govern its

own conduct it will be held to the self-imposed limitations

on its own authority, departure from which denies pro-

cedural due process of law.”

In this case the complainant, in addition to violating his own

regulations and procedural guidelines, violated express provi-

sions of the Act. The compliance officer did not present his

A-32

credentials or advise representatives of the respondent that he

was conducting an investigation. When he contacted representa-

tives of the respondent on January 20, 1972, his investigation

had been completed. The respondent was accordingly denied

an Opportunity to designate anyone to accompany him on the

inspection. More importantly, the compliance officer was es-

sentially a trespasser while conducting his investigation. Since

the respondent had not been advised of the investigation, it

can not be assumed that the investigation was conducted with

respondent’s knowledge.

Fairness and procedural due process necessitates that an

employer be advised whenever his workplace is being inspected

or investigated. Congress recognized this by providing that the

complainant could enter the workplace “upon presenting ap-

propriate credentials.” Congress also gave the employer an

opportunity to designate someone to accompany the complain-

ant or his authorized representative during the physical inspec-

tion of the workplace. These are substantial and basic rights.

Denial of these substantive rights cannot be condoned. The

complainant must observe the provisions of the Act and regula-

tions promulgated thereunder. An employer has the right to

expect the complainant to adhere to the provisions of the Act

and regulations applicable to his conduct in the same manner

as the complainant expects the employer to comply with those

provisions applicable to an employer’s conduct.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged

in a business affecting commerce within the meaning of section

3(5) of the Act.

) sae

A-33

2. The respondent was at all times material hereto subject

to the requirements of the Act and the standards promulgated

of the subject matter herein.

3. Complainant violated Section 8(a) and (e) of the Act, as

well as his regulations and procedural guidelines, by failing to

advise respondent of the inspection until it was completed.

Such actions violated basic fairness and procedural due process

inherent in the Act.

4. The violation of basic fairness and procedural due process

requires that the Citation for Serious Violation and proposed

penalty be vacated.

ORDER

Upon the basis of the foregoing findings of fact and conclu-

sions of law, and upon the entire record, it is

ORDERED:

That the Citation for Serious Violation and Notification of

Proposed Penalty issued to respondent on January 27, 1972,

are hereby vacated and this proceeding is dismissed.

Dated this 25th day of October, 1972.

James D. Burroughs, Judge, OSHRC

A-A

EXHIBIT B

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

ACCU-NAMICS, INC.,

Respondent.

OSHRC DOCKET No. 477

DECISION

Before MORAN, Chairman; VAN NAMEE and CLEARY,

Commissioners.

CLEARY, Commissioner:

On October 25, 1972, Judge James D. Burroughs issued

his decision and order in the present case, vacating the Sec-

retary’s citation for serious violation and proposed penalty

of $500.

On November 21, 1972, the Commission directed that

the decision and order of the Judge be reviewed by the

Commission in accordance with section 12(j) of the Occupa-

tional Safety and Health Act of 1970 (29 U.S.C. §651 et seq.,

hereinafter “the Act”).

The Commission has reviewed the entire record in this

case, including the exhibits and briefs of the parties. We

adopt the Judge’s decision only to the the extent that it is

consistent with the following.

A-35

L

Respondent, a Texas corporation, was engaged in the busi-

ness of installing underground water and sewer pipes for the

city of Lubbock, Texas. Among the projects undertaken by

respondent was the installation of about 14,700 feet of sewer

line in a single trench that varied in depth from 8 to 28 feet

and in width from 28 to 39 inches. Normal operations con-

sisted of staking the line, preparing a suitable surface on

which to operate the trenching machine, trenching the ditch

to the necessary depth, installing the pipe, setting of a man-

hole if required in a particular location, handling of embed-

ment material, stringing pipe, backfilling, water jetting of the

backfill material, and cleanup.

The primary piece of protective equipment used by respond-

ent was a portable steel frame and steel-sheeted box, referred

to as a trench shield, which was designed and manufactured

by respondent. The trench shield was devised to extend down-

ward into a ditch to a depth of 14 feet; it was 22 feet long

and its width could be varied from 28 to 44 inches, depend-

ing on the width of the trench. Although the trench shield

was designed for several purposes; its major purpose was to

protect workers from a cave-in.

By January 18, 1972, about three-fourths of the trenching

operation had been completed without incident. On the after-

noon of January 18th, however, a cave-in occurred in which

four workers were killed. At the point of the cave-in the

trench was 24 feet deep. Therefore, there were 10 feet of

unprotected trench wall between the underside of the trench

A-36

shield and the bottom of the trench, for the trench shield

extended downward only 14 feet. No additional shoring, brac-

ing or other protective measures were used in the trench.

The cave-in was caused by soft dirt (caliche or calcium

carbonate) slipping underneath the trench shield, which re-

sulted in the side wall collapsing into the trench. Two of the

workers were working inside the trench shield at the time of

the accident. The other two workers, contrary to company

instructions, but with the knowledge and approval of the

foreman, were working outside the trench shield. Instead of

being ordered to work within the protection of the trench

shield, they were told to stay as close as they could to the

inside of the trench shield.

About one hour after the cave-in, a compliance officer who

was in the area and had heard about the accident came over

to the worksite, which was along (10 feet south of the pave-

ment edge) 82nd Street, a public street. A large crowd had

gathered at the site and a general state of confusion existed.

The compliance officer did not identify himself to the super-

intendent when he first arrived, but later in the afternoon he

did inform the superintendeut who he was.

The work area was inspected again on the following day,

Wednesday, January 19, 1972, but no one was at the scene.

The compliance officer first met with company officials to

discuss the accident on Thursday, January 20, 1972. At no

time did the compliance officer seek the aid of the employer

and the employees by having their representatives accompany

him during the inspection of the workplace.

A-37

On January 27, 1972, respondent was cited for an alleged

serious violation for failure to comply with 29 CFR §1926.

652(b) and (e) and 29 CFR §1926.653(p).' A notification

Emr bine in ; oped with portat

Flex Tran RPM pipe of 10 and

was 24.3 feet deep at STA 94

g

i

i

:

E

i

. exposing

trench to 10 feet of unshielded trench sidewalls.

The bottom 21 feet of trench was caliche (calcium carbon-

ate) a soft material. The bottom of the trench was not

1 The cited standards read as follows:

1. $1926.652 Specific trenching requirements.

os

by means of sufficient to protect the employees working within

them. See Tables P-1, P-2 (following paragraph (g)) of this section.

eo 6 e

(e) Additional precautions by way of shoring and bracing shall be

taken to prevent slides or cave-ins when excavations or trenches are

made in locations adjacent to backfilled excavations, or where excava-

tions are subjected to vibrations from railroad or highway traffic, the

operation of machinery, or any other source.

& es

2. $1926.653 Definitions applicable to this subpart.

ee

A-38

Additional precautions by means of shoring or bracing

were not taken to prevent slides or cave-ins along the

trench as a result of a backfill excavation, a gas line, exis-

isting 5 feet deep, 5.5 feet north of the center line of exca-

vated trench as required in 1926.652(e).

The above mentioned portable trench shield does not meet

the definition requirement as stated in 1926.653(p) wherein

shoring will support the walls of a trench “to the trench

bottom”, and therefore does not offer protection required

in 1926.652(b) and (e).

A hearing was convened on May 30, 1972, at which time the

parties were afforded an opportunity to present evidence as to

the existence of the alleged violation. Thereafter, on October

25, 1972, Judge James D. Burroughs issued his decision. Judge

Burroughs vacated the citation and proposed penalty finding

that the Secretary did not comply with sections 8(a) and (e) of

the Act, as well as his own regulations and procedural guide-

lines, by failing to advise respondent of the inspection until it

was completed.

I.

The critical poriion of section 8(a) of the Acts reads as

follows:

8(a) In order to carry out the purposes of this Act, the

Secretary, upon presenting appropriate credentials- to the

owner, operator, o. agent in charge, is authorized —

(1) to enter without delay and at reasonable times any

factory, plant, establishment, construction site, or other

area, workplace or environment where work is performed

by a employee of an employer; and

(2) to inspect and investigate during regular working

hours and at other reasonable times, and within reasonable

limits and in a reasonable manner, any such place of em-

A-39

ployment and all pertinent conditions, structures, machines

apparatus, devices, equipment, and materials therein, and

to question privately any such employer, owner, operator,

agency or employee. (Emphasis added).

This text was inserted in the Act because it was recognized

that government officers must have a right of entry in order to

carry out an effective national occupational safety and health

program. S. Rep. No. 91-1282, 91st Cong. 2d Sess., 11 (1970).

The obvious purpose of the language emphasized above was to

write into the Act the authority of the Secretary of Labor to

conduct inspections and a directive to the Secretary that he

must comply with “applicable constitutional protections.” As

Congressman Steiger, co-sponsor of the Act, stated:

I would add that in carrying out inspection duties under

this Act, the Secretary, of course, would have to act in

Staff of Subcommittee on Labor, Senate Committee on Labor

and Public Welfare, 92d Cong., ist Sess., Legislative History

of the Occupational Safety and Health Act of 1970 1077

(Com. Print 1971).

The Supreme Court in the companion cases of Camara Vv.

Municipal Court, 387 U.S. 523 (1967) and See v. Seattle,

387 U.S. 541 (1967) firmly established that Fourth Amendment

protections are applicable to administrative inspections of both

non-commercial and commercial premises. As expressed in these

cases, administrative inspection warrants are required under

ordinary circumstances. A warrant is not needed, however, for

an administrative inspection where a workplace is open to the

public. In See, the Court stated:

A 20

[A]dministrative entry, without consent, upon the portions

of commercial premises not open to the public may only

be compelled through prosecution or physical force within

the framework of a warrant procedure.

387 U.S. at 545 (emphasis added).

The converse of the quoted passage, that a warrant is not re-

quired where the premises are open to the public, is consistent

with the well-settled rule that merely observing what is open to

public view does not constitute a search. See Coolidge v. New

Hampshire, 403 U.S. 443 (1971).

In United States v. Cain, 454 F.2d 1285 (7th Cir. 1972), the

defendents were convicted of violating the Migratory Bird

- Treaty Act, 16 U.S.C. §701 et seg. (1960) and a regulation

promulgated thereunder. On appeal, the defendants argued that

the warrantless search of their hunting club violated the Fourth

Amendment. In affirming the convictions, the Seventh Circuit

quoted the following from McDowell v. United States, 383

F.2d 599, 603 (8th Cir. 1967):

Although the Supreme Court has recently expanded the

Fourth Amendment protection of the business enterprise,

See v. Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L.Ed.2d

943 (1967), it has not expanded such protection beyond

that which a private dwelling and the curtilage thereof is

likewise entitled. Therefore, a search of open fields, with-

out a search warrant, even if such fields are construed as

part of a commercial enterprise, is not constitutionally

“unreasonable.”

454 F.2d at 1287. See also United States v. Sorce, 325 F.2d

84, 86 (7th Cir. 1963).

An important factor to consider is whether an individual or

A4l

business has a reasonable expectation of privacy, even if the

individual or business is in an area that is open to the public.

In Katz vs. United States, 389 U.S. 347 (1967), the Supreme

Court reversed a conviction for interstate gambling in which the

government's evidence was obtained by electronic eavesdropping

of a telephone conversation made from an enclosed, coin-oper-

ated phone booth. The Court stated:

What a person knowlingly exposes to the public, even in

his home or office, is not a subject of Fourth Amendment

. . . . but what he secks to preserve as private,

even in an area accessible to the public, may be constitu-

tionally protected.

389 U.S. at 351 (citations omitted). Accord United States v.

White, 401 U.S. 745, 752 (1971).

In the present case trenching operations were being con-

ducted along a public street in order to lay a municipal sewer

pipe line. The work area was accessible to the public and com-

pletely open to public view. Under these circumstances, re-

spondent had no reasonable expectation of privacy and the

compliance officer did not need a warrant to enter respondent's

worksite. Once on the worksite, he merely observed that which

any other person could have observed.

We construe section 8(a) concerning the presentation of

credentials to be mandatory only when the Fourth Amendment

would bar a warrantless search and thus when notice of au-

thority is required. Inasmuch as the workspace was open to the

public view, there was no mandatory requirement that cre-

dentials be presented, and there was no abuse in discretion in

failing to do so.

A-42

Ii.

Even if there were a requirement that credentials be pre-

sented in the present case, in our view the compliance officer

substantially complied with this requirement. The obvious pur-

pose of presentation of credentials is identification. The record

indicates that within about one hour after arriving at the job-

site, the compliance officer verbally identified himself to re-

spondent’s foreman. The mechanical task of displaying one’s

Official credentials merely constitutes the corroboration of a

verbal identification. Although “presentation of credentials”

is the express statutory term of section 8(a), it is only one means

of identification. The essential objective of identification at the

earliest practical opportunity has been satisfied.

IV.

Although we have concluded that there was no failure to

comply with section 8(a) in this case we would reach the same

result even if section 8(a) were to be read literally, and there

were a technical failure to comply. Even if the evidence ob-

tained by means of the investigation were not considered, the

violations would still be supported by preponderant evidence,

and its admisison would at most be harmless error.”

2 The application of the harmless error doctrine by administrative agen-

cies is mandatory. 5 U.S.C. $706 (1967); Braniff Airways, Inc. v.

C.A.B., 379 F.2d 453, 465 (D.C. Cir. 1967).

The Supreme Court in Chapman v. California, 386 U.S. 18 1967)

stated that harmless error of a constitutional nature must be harmless

beyond a reasonable doubt and in order to find harmless error there can

be no reasonable possibility that it contributed to the conviction. Accord

Harrington v. California, 395 U.S. 250 (1969). Even though this crimi-

nal law standard greatly exceeds the Commission's “preponderance of

the evidence” test, see Armor Elevator Co., Nos. 425 & 426 (November

20, 1973), there is sufficient evidence to find a violation even under the

A43

Several of respondent’s employees and former employees

gave testimony as part of the Secretary's case-in-chief that

clearly substantiates allegations against respondent. Respond-

ent’s president-general manager testified that a trench shield

designed and built by respondent was used in the trench as a

means of protection. This device did not conform to the safety

standards; the primary defect was that it only extended 14 feet

down into a trench that was 24 feet deep. Expert testimony

indicates that this was the cause of the cave-in. In addition to

this testimony, other of respondent’s employees testified that

there was no shoring, bracing, sloping, or hydraulic jacks used

on the site. Finally, expert testimony concerning soil samples

taken on February 14th indicates that the soil was of a soft,

unstable nature.

V.

Respondent has also suggested that presentation of creden-

tials is required in all instances by the Secretary’s own regula-

tions and that a failure to comply with these regulations neces-

sitates the vacating of the citation. The material in the Com-

pliance Operations Manual and in 29 CFR §1903.7(a) on this

subject does nothing more than implement the requirements of

section 8(a) in a manner consistent with the Fourth Amend-

ment. It is thus consonant with the thrust of this decision.

Finally, respondent argued, and the Judge agreed, that the

citation should be dismissed because respondent was not afford-

ed a “walkaround,” as provided for in section 8(e) of the Act.

Chapman-Harrington test. Moreover, even in criminal cases, evidence

seized in violation of the Fourth Amendment and introduced at trial

has been held to be harmless. See, ¢.g., United States v. Steinkoenig,

487 F.2d 225, 230 (Sth Cir. 1973); United States v. West, 486 F.2d

468, 473 (6th Cir. 1973).

A444

The Judge’s decision concerning the application of section

8(e), however, preceded the Commission’s decisions in Chicago

Bridge & Iron Co., No. 224 (January 19, 1973) and Wright-

Schuchart Harbor Contractors, No. 559 (February 15, 1973).

In these cases, the Commission dealt extensively with the “walk-

around” provision of section 8(e) of the Act. Those decisions

hold that the text of section 8(e) is directory rather than man-

datory. Nevertheless, there is an expectation that the Secretary

will make every reasonable effort to afford an opportunity of

accompaniment to authorized representatives of both employees

and employers.

In the present case it is clear that accompaniment by these

representatives could have aided in the inspection. The com-

pliance office had never engaged in any pipeline work, dug any

ditches, manufactured any pipes, and had no experience in

pipeline work in the area. Under these circumstances, it is rea-

sonable to infer that any contribution by the authorized em-

ployer and employe representatives at that time would have

been beneficial for all concerned.

Notwithstanding the salutary effects that an inspection tour

accompaniment or “walkaround” would have provided, it is un-

reasonable to expect that there will be a “walkaround” when it

is highly impractical. On the day of the initial inspection, no

“walkaround” was possible because the cave-in had caused a

state of excitement and general confusion. On the following

day, when the compliance officer returned to the scene of the

accident, there was no one present. A “walkaround” was thus

impossible. On the third day of inspection, the compliance

A-45

officer met with respondent, but no employees were on the job-

site.

Finally, in Chicago Bridge & Iron Co., supra and White-

Schuchart, supra, we held that there must be a showing of pre-

judice to the employer before the Commission will invoke the

extreme sanction of vacating a citation for failure to comply

with section 8(e). In this context, “prejudice means actual

prejudice to a defendant’s [employer’s] ability to present an

effective defense.” United States v. Menke, 339 F. Supp. 1023,

1026 (W.D. Pa. 1972). In the present case there has been

no allegation that respondent was prejudiced by a failure to

accompany the inspection tour.

Vil.

Judge Burroughs issued his decision in this case without

ever reaching the merits of whether or not the cited violation

did exist. Nevertheless, both parties were afforded a right to

present fully their evidence. We note that the transcript is

copious, the exhibits complete, and the Judge’s findings of

fact detailed. To remand such a case, therefore, is unnecessary

and can only prolong unduly the disposition of this matter.

Upon a thorough examination of the record, we conclude

that respondent was in serious violation of the Act. In so

doing, we specifically adopt the Judge’s findings of fact. We

also agree with the Secretary's determination that the viola-

tion be characterized as serious. Four of respondent's em-

ployees were fatally injured as a result of the cave-in. In

addition, respondent knew or should have known that the

trench shield alone was an inadequate means of protection,

A-46

that the soil was unstable, and that a cave-in could result.

Thus, the criteria for a serious violation as expressed in sec-

tion 17(k) have been met.

With respect to the penalty, section 17(j) of the Act pro-

vides that the Commission shall give due consideration to

the size of the business, the gravity of the violation, the good

faith of the employer, and the history of previous violations.

Having considered these factors, we accept the advice of the

Secretary, and assess a penalty of $500.

Accordingly, it is ORDERED that the Judge’s decision and

order be set aside and that the citation and penalty proposed

by the Secretary be affirmed.

Dated: May 30, 1974

FOR THE COMMISSION

/s/ William S. McLaughin

William S. McLaughin

Executive Secretary

AAT

VAN NAMEE, Commissioner, Concurring

I with C — Cl ’s di iti of this

vase.

Section 8(a) of the Act does incorporate the protections of

the Fourth Amendment and Complainant’s compliance there-

with is mandatory where the inspected employer entertains

a reasonable expectation of privacy. Katz v. United States, 389

U.S. 347 (1967). Assuming without deciding both that Re-

spondent had a reasonable expectation of privacy and that a

timely motion to suppress was made, the evidence of record,

independent of that which presumably could be suppressed,

is sufficient to sustain Complainant's citation for serious vio-

lation and support the penalty assessed for such violation.

rights of either employers or employees as guaranteed by the

Act are enhanced by the decision of the majority. For a more

detailed exposition of my views on the complainant's respon-

sibility to follow the plain language of both the Act and his

own regulations see my recent dissent in Lipsky and Rosen-

thal, Inc., OSAHRC Docket No. 690 (May 13, 1974).

‘A-49.

EXHIBIT ©

ACCU-NAMICS, INC. v. 0. 8. H. RC. —

United States Court of Appeals,

Fifth Circuit.

July 11, 1975.

F epkee?

eitesea

ue

Lae

eihial

i

1. Labor Relations «7

Violation of the Occupational Safety

and Health Act is deemed serious if

there is a substantial probability of

death or serious injury resulting from it.

Occupational Safety and Health Act of

1970, § 1 et seq., 29 U.S.C.A. § 651 et

Occupational

Safety and Health Act of 1970, § 17(j),

29 U.S.C.A. § 666()).

A-50.

6408 ACCU-NAMICS, INC. v. 0. S. H. RB. C.

pational Safety and Health Act by virtue

of compliance officer's failure to identify

himself immediately upon arriving at the

and employee representatives. Occu7a-

tional Safety and Health Act of 1970,

§ Sa, e), 2 USCA. § 657(a, e).

5. Labor Relations ¢=27

Evidence obtained illegally in viola-

tion of the Occupational Safety and

Health Act is not subject to an automat-

ic exclusionary rule precluding its consid-

eration by hearing examiner or Occupa-

tional Safety and Health Review Com-

mission without respect to how minor or

technical the violation and without re-

spect to how egregious or harmful the

safety violation. Occupational Safety

and Health Act of 1970, § 1 et seq., 29

U.S.C.A. § 651 et seq.

6. Labor Relations ¢=7

Manifest purpose of th» Occupation-

al Safety and Health Act is to assure

safe and healthful working conditions.

Occupational Safety and Health Act of

1970, § 1 et seq., 29 U.S.C.A. § 651 et

seq.

7. Searches and Seizures ¢=7(1)

Where job site at which construction

accident occurred was on a public street

and where there wes no evidence that

OSHA inspector looked where he had no

right to look, or that he filched informa-

tion to which he was not entitled, fact

that inspector did not show his creden-

tials immediately upon arriving at scene

of accident and waited approximately an

hour before orally identifying himself to

the superintendent did not violate em-

ployer’s Fourth Amendment rights. Oc-

cupational Safety and Health Act of

1970, §§ 1 et seq., &a), 29 U.S.C.A.

$§ 651 et seq. 657(a); U.S.C.A.Const.

Amend. 4.

& Labor Relations ¢=27

OSHA statutory scheme contem-

plates that the Occupational Safety and

Health Review Commission is the fact

finder and that the administrative law

judge is an arm of the Commission for

that purpose. Occupational Safety and

Health Act of 1970, § 12(e), 29 U.S.C.A.

§ 661(d).

9. Labor Relations ¢=27

Upon issuance of decision by admin-

istrative law judge with respect to al-

leged OSHA violation, jurisdiction rests

solely in the Occupational Safety and

Health Review Commission and, al-

though either party may petition for dis-

cretionary review by the Commission,

neither party has a right to review by

the Commission nor the right to present

additional material or oral argument on

any matter. Occupational Safety and

Health Act of 1970, § 1 et seq., 29 U.S.

C.A. § 651 et seq.

10. Labor Relations @=27

Court of Appeals reviews only the

final order of the Occupational Safety

. and Health Review Commission and the

Commission's findings of facts are con-

clusive if supported by substantial evi-

dence. Occupational Safety and Health

Act of 1970, § Il(a), 2 U.S.CA.

§ 660(a).

11. Labor Relations 27

Administrative law judge’s decision

with respect to alleged OSHA violation

is merely a report and not final until the

Occupational Safety and Health Review

Commission allows it to become so by

inaction; once the Commission decides to

review, it may review the entire record,

including transcripts, briefs, proposed

A-51

ACCU-NAMICS, INC. v. 0. 8. H. RC. 6409

power. Occupational Safety and Health

Act of 1970, § 12{j), 29 U.S.C.A. § 661(i).

13. Labor Relations ¢=27

Occupational Safety and Health Re-

view Commission, upon ordering review

of decision of administrative law judge

who made no-conclusions as to employ-

er’s safety violations because he deter-

mined that Secretary of Labor had vio-

lated the Occupational Safety and

Health Act, and having determined that

Secretary's violations if any, did not pre-

clude imposition of penalties, was autho-

rized to assess the fine itself and was not

required to remand the matter to the

administrative law judge. Occupational

Safety and Health Act of 1970, § 12(j),

29 US.C.A. § 661(i).

14. Labor Relations ¢=27

If there is substantial evidence in

the record to support the finding of a

serious violation of the Occupational

Safety and Health Act, order of the Oc-

tional Safety and Health Act of 1970,

and trench shield alone afforded inade-

quate protection, and that the shield was

ten feet too short to protect against the

§ 1 et seq., 2 USCA. § 651 et seq.

Petition for Review of an Order of the

Occupational Safety and Health Review

Commission (Texas Case).

Before GEWIN, DYER and ADAMS,*

Cireuit Judges.

A-52

6410 ACCU-NAMICS, INC. v. 0. S. H. RC.

DYER, Circuit Judge:

Accu-Namics, Inc., seeks review of a

final order of the Occupational Safety

and Health Review Commission finding

petitioner, Accu-Namics, guilty of a “se-

rious violation” of the i

Safety and Health Act (OSHA). 29 U.S.

C.A. § 651 et seq.

Accu-Namics contracted in 1971 with

the city of Lubbock, Texas, to lay a sew-

er line, which involved digging a deep,

narrow trench and laying the pipe. The

men working in the trench were protect-

ed by a portable shield designed to pre-

vent cave-ins. Nevertheless, while the

work was in progress the trench did cave

in, and four employees were killed.

An OSHA compliance officer was

working nearby and arrived on the scene

about an hour after the accident while

rescue operations were still in progress.

He did not identify himself immediately

but testified that “it might have been an

hour or so” before he informed Conklin,

the superintendent, who he was. He re-

turned with the area director to com-.

plete his investigation on the following

day, but found no one on the job site.

[1,2] The compliance officer, acting

as the representative of the Secretary of

Labor, issued a citation for a serious vio-

lation. A violation is deemded “serious”

under the Act if there is a substantial

probability of death or serious injury re-

1. 29 C.F.R. § 1926.652(b) reads in pertinent

part:

(b) Sides of trenches in unstable or soft

material, 5 feet or more in depth, shall be

2. 29 CF.R. § 1926.652(e) reads:

(e) Additional precautions by way of shor-

ing and bracing shall be taken to prevent

slides or cave-ins when excavations or

trenches are made in locations ddjacent to

sulting from it. The employer is ex-

cused only if he did not and could not

with the exercise of reasonable diligence

know of the violation. 29 U.S.C.A.

§ 666()).

The violation for which Accu-Namics

was cited was that the workers in the

filled excavation of a 5-foot deep gas

line existed 5.5 feet from the center line

of the trench.

The trench at the cave-in site was 24

. ASS

ACCU-NAMICS, INC. v. 0. S. H. RC. 6411

Accu-Namics contested the citation

and was given an adversary hearing be-

fore an administrative law judge (hear-

the finding that the cave-in was caused

by the simultaneous occurrences of the

following conditions:

1. The soil between 12 and 19 feet

(a) In order to carry out the purposes of

this chapter, the Secretary, upon presenting

appropriate credentials to the owner, opera-

i

i

|

ihe

iit

trench and the original undisturbed

soil. was so small as to cause a top

tensile zone in soil, as the sewer trench

was cut.

4. The wheel carrying the weight of

the shield and gravel hopper acted as

a concentrated load at the above verti-

cal plane.

The judge, however, made no finding

as to the eniployer’s culpability under

the Act. He held instead that the Secre-

company the Secretary or hix authorized

ASA

6412 ACCU-NAMICS, INC. v. 0. 8. H.R C.

this violation required that the citation

and proposed penalty be vacated.

[3] The Act provides that the hearing

examiner is to make a “report” of his

determinations “which constitutes his

final disposition of the proceedings.”

This report becomes the final order of

the Commission in 30 days, unless within

that period any Commission member di-

rects review by the Commission. 29 U.S.

C.A. § 661(i). In this case, a Commission

member did direct such a review and the

parties were notified as follows:

The undersigned hereby directs re-

view of the recommended decision and

orders in the captioned case pursuant

to section 12(j) of the Occupational

Safety and Health Act of 1970 (29

U.S.C.A. § 661(i)).

Submissions are invited on the fol-

lowing issue:

Whether the Judge properly inter-

preted and applied sections Ya) and,

&e) of the Act in this case.

Upon the consideration of the case, the

Commission reversed the administrative

law judge on the procedural questions of

credentials (section &a)) and walkaround

rights (section &e)). It then moved to

the merits, specifically adopted the

judge’s findings of fact, and held that

Accu-Namics was guilty of a serious vio-

lation, reinstating the original citation

and $500 penalty. Accu-Namics appeals

this final order under Section 11l(a) of

the Act. 29 U.S.C.A. § 660(a).

Our analysis begins with the question

whether the Commission properly inter-

preted and applied Section &a) and &e)

of the Act. If it was correct, then we

must decide whether it was proper for

6. The cases to which the Commission refers

are Chicago Bridge and Iron Co., Jan. 19, 1973,

US.C.A. § 660(a); Ryder Truck Lines,

Inc. v. Brennan, 5 Cir. 1974, 497 F.2d

230, 232. We answer all these questions

in the affirmative.

ent at the site. Finally, even if there

was a technical failure to comply with

the statute, it was harmless error to hear

the evidence obtained by the investiga-

tion because there was preponderant evi-

dence aliunde to support the violation.

As to Section &e), the Commission re-

cited in its opinion that it has held the

“walkaround” requirement to be directo-

ry rather than mandatory. The Com-

mission said that, for the employer and

e:aployee representatives to have accom-

panied the inspector would probably

have been helpful, but under the circum-

stances it was highly impractical. Fur-

ther, said the Commission, it will not

“invoke the extreme sanction of vacating

a citation for failure to comply with sec-

tion &{e)” unless there is a showing of

prejudice. Here there was not even an

No. 224, and Wright-Schuchart Harbor Con-

tractors, Feb. 15, 1973, No. 559.

A-55

ACCU-NAMICS, INC. v. 0. 8. H. RC.

a ee ee

Co.), 5 Cir. 1973, 487 F.2d 230, 236, in which

this Court said:

have recognized that at least a finding of

might have emerged. Accu-Namics had

the opportunity before the hearing ex-

aminer to present any such evidence and

to cross-examine the inspector. At oral

argument, cvunsel failed to indicate any

specific way in which Accu-Namics was

A-56

e414 ACCU-NAMICS, INC. v. 0. 8. H. RC.

{8-10} First, the statutory scheme

contemplates that the Commission is the

fact-finder, and the judge is an arm of

the Commission for that purpose. The

chairman is to appoint such hearing ex-

aminers as he deems necessary to assist

in the work of the Commission. 29 U.S.

C.A. § 661(d). The hearing examiner

(also called “judge,” 29 C.F.R. § 2200.-

1(f)) is to hear and “make a determina-

tion upon” the proceedings and

shall make a report of any such deter-

mination which constitutes his final

disposition of the proceedings.

29 US.C.A. § 661(i). This “report” be-

comes the final order of the Commission

within thirty days unless a Commission

member directs review within that time.

Id. When it notified the parties in this

case that the decision would be reviewed,

the Commission referred to the judge’s

report as a “recommended decision.”

The regulations provide that the decision

of the judge is to include findings of

fact, conclusions of law, and an order.

29 C.F-R. § 2200.90(a). Upon issuance of

the decision, jurisdiction rests solely in

the Commission. 29 C.F.R. § 2200.90(b).

The regulations provide that a party ag-

grieved by the judge’s decision may peti-

tion for discretionary review by the

Commission, 29 C.F.R. § 2200.91, but a

party has neither the right to review by

the Commission, nor the right to present

additional material or oral argument on

any matter. 29 C.F.R. § 220093. The

Court of Appeals reviews only the final

order of the Commission, and the Com-

mission’s findings of fact are conclusive

if supported by substantial evidence. 29

U.S.C.A. § 660(a).

{11-13] This overview of the statute

and regulations demonstrates that the

Commission itself is charged with find-

[14] Reviewing courts are bound to

apply the substantial evidence test to the

Commission’s findings of fact. 29 U.S.

C.A. § 66(a); Ryder Truck Lines, Inc. v.

Brennan, supra; Beall Construction Co.

v. OSHRC, 8 Cir. 1974, 507 F.2d 1041,

1046; Brennan v. OSHRC (Hanovia

Lamp Division), 3 Cir. 1974, 502 F.2d 946,

950-51. If there is substantial evidence

in the record to support the finding of a

serious violation, the order must be af-

firmed. Ryder Truck Lines, Inc. v.

Brennan, supra; American Smelting &

Refining Co. v. OSHRC, 8 Cir. 1974, 501

F.2d 504; REA Express, Inc. v. Brennan,

2 Cir. 1974, 495 F.2d 822, 825; National

Realty & Construction Co. Inc. v.

OSHRC, 1978, 160 U.S.App.D.C. 133, 489

F.2d 1257, 1260.

A-57

ACCU-NAMICS, INC. v. 0. S. H. RC. 6415

of the cave-in were

on the

whether he knew or should have known

(crumbly) merely by inserting a small

shovel into the trench wall. Further, al-

precisely how far away it was, there is

no question that the employer knew that

the backfilled gas line was nearby and

could cause serious problems. Once it is

determined that a shield (or some other

protective measure) is required, then it

must meet the standard requirements of

29 C.F.R § 1926.65%(p),’ which this one

clearly failed to do.

Thus, we find substantial evidence to

support the Commission's finding of a

serious violation.

Affirmed.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

A-58

EXHIBIT D

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1974

No. 74-2979

OSHRC Docket No. 477

ACCU-NAMICS, INC., Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW

COMMISSION, JOHN T. DUNLOP,

Secretary of Labor, Respondent.

Petition for Review of an Order of the

Safety and Health Review Commission (Texas Case)

Before GEWIN, DYER and ADAMS,®* Circuit Judges.

JUDGMENT

This cause came on to be heard on the petition of Accu-

Namics, Inc. for review of an order of the Occupational Safety

and Health Review Commission of the United States, and was

argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered

and adjadged by this Court that the petition for review of an

order of the Occupational Safety and Health Review Commis-

sion in this cause be, and the same is hereby affirmed; ;

It is further ordered that petitioner pay to respondent the

costs on appeal to be taxed by the Clerk of this Court.

July 11, 1975

Issued as Mandate:

*Of the Third Circuit, sitting by designation.

A-59

EXHIBIT E

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

September 26, 1975

TO ALL COUNSEL OF RECORD

No. 74-2979—Accu-Namics, Inc. vs. Occupational Safety

& Health Review Commision,

John T. Dunlop, Secretary of Labor

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition() for rehearing, and no member of the

panel nor Judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc (Rule

35, Federal Rules of Appellate Procedure; Local Fifth Circuit

Rule 12) the petition() for rehearing en banc has also been

denied.

See Rule 41, Federal Rules of Appellate Procedure for issu-

ance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH, Clerk

by CLARE F. SACKS

Deputy Clerk

cc: Mr. David Ford Hunt

Mr. Stephen F. Bilperin

Ms Judith S. Feigin