Austin Commercial v. Occupational Safety & Health Review Commission
Austin Commercial v. Occupational Safety & Health Review Commission
Opinion of the Court
Appellant Austin Commercial (Austin) was the prime contractor on a building under construction in Dallas, Texas. On January 9, 1978, Austin’s employees were raising a beam bottom form from the seventh floor to the eighth floor.
Austin was issued a citation by the Occupational Safety and Health Administration, charging one serious violation of the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq., and 29 C.F.R. 1926.251(a)(1), in that Austin had allegedly failed to inspect and remove defective rigging equipment for material handling prior to use.
Austin contends that the regulation is unconstitutionally vague as applied, and that there was no substantial evidence to support a finding either of a violation, or of a “serious” violation. The vagueness argument is based on Austin’s assertion that the regulation does not define (1) what type of inspection is required or (2) what is “defective rigging equipment.” It is argued that since the violation was based on use of the wire as a rigging device, and no guidelines were provided for the use or non-use of certain materials, the commission has in effect held that No. 9 wire is defective ipso facto when used in connection with the device in question.
In B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5 Cir. 1978), it was held that under this “remedial civil legislation” a vagueness charge must be considered in the light of the regulation’s application, and that due process requires standards containing “sufficiently definite warnings as to the proscribed conduct when measured by common understanding or practices.” 583 F.2d at 1368. An Occupational Safety and Health standard must give an employer fair warning of the conduct it prohibits, and it must provide a reasonably clear standard of culpability, to limit the discretion available to the enforcing officers. Diamond Roofing Company v. OSHRC, 528 F.2d 645, 649 (5 Cir. 1976). The standard must be construed to give effect to the natural and plain meaning of its words. Id. We do not understand the OSHRC to contend that No. 9 wire is per se defective when used in any fashion as rigging equipment. The citation charged, and the commission found that the wire was defective in its particular use under the facts of this case. Giving the words “inspection,” “defective,” and “rigging” their natural and plain meaning, we find that this employer was given fair warning of proscribed conduct. It is not necessary that such a regulation spell out specific prohibited uses of specifically named materials.
In reviewing Austin’s contentions of insufficient evidence to support a finding of serious violation, we must accept findings of fact by the commission as conclusive if they are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 660(a); Irwin Steel Erectors v. OSHRC, 574 F.2d 222 (5 Cir. 1978). Again giving effect to the plain meaning of the
The record also discloses that Austin had ample opportunity to discover this condition and correct it, but failed to inspect the equipment at the beginning of each shift and replace it where defective as required by the regulation. The mere fact that Austin employees occasionally looked at the equipment is insufficient. An inspection requires a careful and critical examination, and is not satisfied by a mere opportunity to view equipment. Dawson Company Manufacturers v. Cleveland Costume Co., 3 OSHC 1534 (BNA) (1975).
There is ample evidence in the record to support the finding of a “serious” violation, within 29 U.S.C. § 666(j).
PETITION DENIED.
. The form was 32 feet long, 4 feet wide, and weighed about 500 pounds.
. 29 C.F.R. 1926.251(a)(1) reads: “rigging equipment shall be inspected prior to use on each shift and as necessary during its use to insure that it is safe. Defective rigging equipment shall be removed from service.”
. That section reads: “For purposes of this section a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.”
Reference
- Full Case Name
- AUSTIN COMMERCIAL v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and F. Ray Marshall, Secretary of Labor
- Cited By
- 1 case
- Status
- Published