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Chicago Bridge & Iron Co. v. Occupational Safety and Health Review Commission


decided: May 10, 1976.


On Petition to Review an Order of the Occupational Safety and Health Commission.

Hastings, Senior Circuit Judge, Swygert, Circuit Judge, and Perry, Senior District Judge.*fn1

Author: Swygert

SWYGERT, Circuit Judge.

This appeal presents the question of whether the failure of a Compliance Safety and Health Officer to meet with Chicago Bridge & Iron Company supervisors or its employee representatives and afford them an opportunity to "walkaround" an inspection of the worksite at which the company was a prime contractor, as required by section 8(e) of the Occupational Safety and Health Act,*fn2 was grounds under the statute for voiding the citations issued to the company as a result of that inspection. The Administrative Law Judge vacated the citations because the walkaround right had not been extended, but his decision was reversed in an opinion by the Occupational Safety and Health Review Commission. The case is before this court pursuant to section 11(a) of the Act on petition of Chicago Bridge & Iron for review of the Commission's order.*fn3

The worksite involved in this case was the nuclear power plant under construction by Commonwealth Edison Company at Zion, Illinois.*fn4 Chicago Bridge & Iron was a prime contractor on the project, but was not contacted by the compliance officer prior to his inspection. The compliance officer instead relied on the project manager for Commonwealth Edison to coordinate a group of employees and employers for the purpose of accompanying him on his inspection tour. The company maintains that the compliance officer during his discussion with the project manager requested that only representatives of Commonwealth Edison, Walsh Construction Company, and a mechanical contractor be present in the inspection party. The Secretary of Labor, on the other hand, states the compliance officer had specified that the selection of employer and employee representatives would be subject to his approval and had understood from his discussion with the Commonwealth Edison project manager that all the employers at the site would be informed of the selection process and the pending inspection. The inspection party finally chosen was composed of representatives of the two largest contractors on the site who had primary control over the entire project and who held themselves out as representing all the employers on the site and employees, mostly shop stewards, who had been drawn from the membership of a union safety committee which had been previously organized to handle safety problems for all on-site employees. The contingent was approved by the compliance officer and the inspection undertaken.*fn5

The inspection took more than five days to complete. Twenty-three employers received citations for violations of the Act. Chicago Bridge & Iron was cited for eight non-serious violations, but was not subjected to any penalty. The company was told to correct the violations within twenty days. When it chose instead to contest the citations, the Secretary filed a formal complaint. The company moved to dismiss on the grounds that there had been no walkaround right afforded to it or its employees as required in the Act.

Chicago Bridge & Iron has argued that the failure of the compliance officer to ensure that this right was offered to it and its employees during the inspection of the worksite rendered the citations void ab initio. In support of this argument, it notes that the terms of the statute are mandatory -- the representative shall be given an opportunity to accompany the Secretary; that this particular provision in the Act provoked a great deal of conflict, evidenced in the legislative history, which was resolved by adopting the absolute language; and that the Secretary's own regulations recognize the right as mandatory.*fn6

The company also argues that there are policy reasons why a denial of the walkaround right should result in the citations being voided. It asserts that the adequacy of the inspection will be endangered if the right is not afforded to employers and their employees' representatives, and the potential for on-the-spot resolutions of actual disputes will be foreclosed. It also predicts that unnecessary conflict will arise if employers are excluded from the site during the inspection since if they do not observe the violations they will be less likely to voluntarily make the necessary corrections without inducement from a citation. The company further argues that to allow the Secretary or his agent to bypass the right will permit the inspection process to operate on employers in an inherently prejudicial manner and will allow or encourage discriminatory practices by permitting the exclusion of employer representatives although employee representatives are included in the inspection parties.*fn7

The Secretary has countered these arguments by asserting that there has been substantial compliance with the provision of the Act establishing the walkaround right. He argues that the failure to include the representatives of Chicago Bridge & Iron and its employees was irrelevant on the facts of this case in that no prejudice has been demonstrated by the company as a result of the oversight. The Secretary's argument focuses on the "preventative purposes" of the Act and concludes that strict adherence to the walkaround right in cases which involve huge construction sites with dozens of contractors and subcontractors will retard the enforcement procedures provided by the Act.*fn8 The Secretary's argument relies in large part on his assertion that the walkaround right was incorporated in the legislation in order to aid his inspections of the worksites, not to hinder them as would be the result should the compliance officer have to include representatives from all the employers involved in projects like the nuclear power plant site in the instant case.

The Secretary then urges this court to construe the "shall" in section 8(e) as conditional by looking to the legislative history. He does not suggest that the language of the statute is directory, but rather attempts to reframe the issue by arguing that there is no absolute right conferred by the provision the denial of which would deprive his office of jurisdiction to issue citations.*fn9 The Secretary argues that if there is substantial compliance with the walkaround provision and no prejudice has been demonstrated by the employer, the citations should stand.*fn10

The Secretary in his attempt to reframe the issue before this court deviates from the reasoning and conclusions reached by the Review Commission. The Commission's decision indicated that the majority believed the walkaround right to be directory. The Secretary has argued on appeal that the Commission actually rested its decision on the fact that there was no prejudice to the company in this case and that there had been substantial compliance with the terms of the statute. He supports this argument by referring to that part of the Commission's opinion which focuses on the failure of Chicago Bridge & Iron to demonstrate that any prejudice resulted because of the failure of the compliance officer to extend it the walkaround right.

In view of the clear language of the statute which is given additional force by the principle of administrative law which dictates that where an administrator must follow the rules promulgated pursuant to the authority of the statute he is charged with enforcing, Madden v. Int'l Hod Carriers, 277 F.2d 688 (7th Cir. 1960); Madden v. Int'l Organization, 259 F.2d 297 (7th Cir. 1958), we can reach no other conclusion, but that the dictates of section 8(e) of the Act are mandatory. In addition, although when the language of a statute is clear it is not necessary to resort to other material for interpretation, both parties have extensively referred to that portion of the legislative history which sets forth the dispute concerning inclusion of the walkaround right in the Act. The right was sought by employee groups and was granted to employers in the interest of fairness.*fn11 Such a right should not be eroded by holding that the statute is merely directory.

Our conclusion that the walkaround provision is mandatory does not, however, dispose of the matter before us. The Secretary has argued that there has been substantial compliance in this case with the dictates of section 8(e) and in addition there has been no prejudice to Chicago Bridge & Iron as a result of the inspection. We agree, that on the facts of this case, the citations should not be voided.

Several elements in the situation before us indicate that there has been substantial compliance with section 8(e). We note, for example, that either immediately preceding or at the initiation of the inspection tour, a compliance officer talked with the representative of Chicago Bridge & Iron and informed him that an inspection was in process. At that time the company representative was provided with a copy of the Act and an informational pamphlet explaining it. Although it may have been more desirable for the compliance officer to verbally inform the representative of the rights which the company could exercise at that time, the material supplied contained all the information that an employer needed to know in order to assert his walkaround right under the terms of the Act. The company did not subsequently request that its representative be allowed to accompany the tour, nor did it ensure that a representative would be present at the time of the inspection. The company was also informed, as were all the employers, by the project manager for Commonwealth Edison of the fact that an inspection was underway and of the constituency of the inspection party, but it did not request inclusion of its representative at that time.

We agree with the company that it is desirable that employers' representative be present when inspections of their work areas are conducted.*fn12 We do not agree, however, that the absence of a formalized offer of an opportunity to accompany the compliance officer on his inspection renders the citations for violations observed void ab initio. This result we believe would frustrate the purpose of the Occupational Safety and Health Act of 1970 which is to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. ยง 651. As recently expounded by the Fifth Circuit in a decision which upheld the Review Commission:

Even if the Secretary conducted an illegal inspection (which we assume only for argument's sake), under the circumstances here these violations cannot operate to exclude evidence obtained in that inspection when there is no showing that the employer was prejudiced in any way . . . [the company] would have us adopt an exclusionary rule which would exclude all evidence obtained illegally no matter how minor or technical the government violation, and no matter how egregious or harmful the employer's safety violation. This we refuse to do. The manifest purpose of the Act . . . militates against such a result. Accu-Namics, Inc. v. OSHC and Dunlop, 515 F.2d 828 (5th Cir., 1975).

The court suggested that it was able to reach this result in spite of the statutory language because there had been no showing of prejudice made by the employer. The court did not reach the question of whether the provision of section 8(e) was mandatory or directory.

We agree with so much of the Accu-Namics opinion as relates to the manifest purpose of the Act and the inadvisability of a policy which would automatically void citations because of procedural or technical violations on the part of the Government. This result, we believe, is compelled particularly in the circumstance of large on-site inspections involving multiple contractors. Alternative methods of inspection of such sites have been suggested, but it is not difficult to envision occasions where the technical requirements of the Act would not be met even under such proposals. If our holding today was that citations issued in violation of such procedures result in per se procedural dismissals, the degree of actual compliance under the Act or a consideration of the attempt by the investigating officer to comply would be irrelevant.

Chairman Moran, the dissenting member of the Review Commission, and Chicago Bridge & Iron have suggested that it would have been both simple and expedient for the compliance officer to afford all on-site employers the opportunity to accompany him on his tour of that part of the site at which their employees were working.*fn13 The suggestion was that the representatives of the employer and its employees should be asked to join and leave the inspection party as it passed through the areas in which the particular employer is located. If this procedure were to be followed, it would avoid the problem anticipated by the Secretary of trying to conduct an inspection with a group of unmanageable size. This method would also have permitted the compliance officer to conduct the inspection in a manner which, would not have necessitated his notifying employers so far in advance as to interfere with his viewing the work areas as they usually exist. Although this may in fact be a desirable method for conducting such inspections, if citations issued without strict adherence to procedural provisions of the Act were void ab initio, the result of an inspection citation issued after the completion of such a tour in which certain employers were not available at the site -- either because they did not know of the inspection or because the situation was such that they were called to another location -- would also be void. If the compliance officer wanted to ensure that his citations would not be flawed, he would have to either reschedule the inspection of that employer's part of the site or suspend the progress of the inspection of the site until the return of the employer's representative.

On the basis of the foregoing discussion, we hold that when as here there has been substantial compliance with the mandate of the Act in regard to the granting of a walkaround right and the employer is unable to demonstrate that prejudice resulted from his non-participating in the inspection, citations issued as a result of the inspection are valid.*fn14 The company here has not demonstrated any concrete prejudice to its defense by the exclusion from the inspection party.*fn15 The on-site representative of Chicago Bridge & Iron was informed of the pending tour and given literature which set forth the statutory directives. There was no attempt on the part of the company to see that their representative was included on the tour despite this information and any additional warning that attended the Commonwealth Edison's representatives contact with employers on the site.*fn16

The order of the Occupational Safety and Health Review Commission is affirmed and the citations will be enforced.

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