Hartwell Excavating Co. v. John T. Dunlop, Secretary of Labor

537 F.2d 1071 4 O.S.H. Cas.(BNA) 1331, 1976-1977 O.S.H.D. ( 20,823 HARTWELL EXCAVATING CO., Petitioner, v. John T. DUNLOP, Secretary of Labor, Respondent. No. 74--3275. United States Court of Appeals, Ninth Circuit. June 18, 1976. Franklin Smith (argued), Sharp, Anderson & Bush, Idaho Falls, Idaho, for petitioner. 1 Allen H. Feldman (argued), U.S. Dept. of Labor, Washington, D.C., for respondent.OPINION 2 Before CHOY and KENNEDY, Circuit Judges, and NIELSEN, * District Judge. NIELSEN, District Judge: 3 Hartwell Excavating Co. ('Hartwell') asks review and reversal of a final order of the Occupational Safety and Health Review Commission ('Commission') finding it guilty of violations of Safety standards promulgated under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (OSHA) allegedly occurring on March 29, 1972 at a sewer construction site near Moore, Idaho. 4 The facts, as found at the hearing before the administrative law judge, were: 5 After working hours on March 28, 1972, Compliance Officer Jackson and Idaho Safety Inspector Ryals happened on the construction site, basically consisting of a trench which ran under Highway 93--A and extended on…

*1072 OPINION

Hartwell Excavating Co. (“Hartwell”) asks review and reversal of a final order of the Occupational Safety and Health Review Commission (“Commission”) finding it guilty of violations of Safety standards promulgated under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (OSHA) allegedly occurring on March 29, 1972 at a sewer construction site near Moore, Idaho.

The facts, as found at the hearing before the administrative law judge, were:

After working hours on March 28, 1972, Compliance Officer Jackson and Idaho Safety Inspector Ryals happened on the construction site, basically consisting of a trench which ran under Highway 93-A and extended on both sides of the road.

The inspectors examined this site briefly and left, deciding to return the next day.

About 8:30 the next morning, the inspectors returned to the site and Jackson presented his credentials to the nearest workman, asking for the foreman in charge. In following the workman’s directions, the inspectors necessarily passed along a portion of the 750 foot long trench. During that time, Jackson noted several possible violations of OSHA rules; e. g., lack of proper shoring in the…

(concurring).

I do not believe that OSHA investigators are free to ignore sections 8(a) and (e) of the Act. Failure to follow these provisions is always prejudicial to the property and privacy rights of businessmen, whether or not it is “prejudicial” in the sense of providing evidence necessary to prove a violation of the Act. However, in this case I believe the investigation complied with sections 8(a) and (e), and thus I concur in the result reached by my brothers.