D. FEDERICO CO., INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and W. J. Usery, Jr., Secretary of Labor, Respondents.
No. 76-1084.
United States Court of Appeals, First Circuit.
Decided June 16, 1977.
558 F.2d 614
Of course, even absent such a manifestation of congressional intent to “occupy the field,” the Supremacy Clause requires the invalidation of any state legislation that burdens or conflicts in any manner with any federal laws or treaties. See Part III, infra. However, “conflicting law, absent repealing or exclusivity provisions, should be pre-empted ‘only to the extent necessary to protect the achievement of the aims of ‘” the federal law, since “the proper approach is to reconcile ‘the operation of both statutory schemes with one another rather than holding [the state scheme] completely ousted.‘” Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 127, 94 S.Ct. 383, 389, 38 L.Ed.2d 348 (1973), quoting Silver v. New York Stock Exchange, 373 U.S. 341, 361, 357 [, 83 S.Ct. 1246, 1259, 10 L.Ed.2d 389] (1963).
We are therefore not persuaded that we erred in our prior opinion and deny the petition for rehearing.
CAMPBELL, Circuit Judge (concurring).
As indicated in my concurring opinion, I see this less as a question of preemption than as of statutory construction. Preemption cases normally involve statutes which are silent on the precise issue, and a court has to struggle with what is implied. Here, however, I think Congress has expressly delegated to HUD the authority to accept or reject local rent control. Since HUD acquiesced during the period in question, I agree with the court‘s result. Given my own view of the issues, the doctrinal underpinnings of the ongoing preemption cases seem less important than they do to my brethren, and I do not necessarily agree (nor do I necessarily disagree) with what is said in that regard.
Argued Sept. 15, 1976.
Decided June 16, 1977.
Alvin Jack Sims and Sims, Driscoll, Cahalane & Levine, P. C., Brockton, Mass., on brief, for petitioner.
Marc R. Hillson, Atty., U. S. Dept. of Labor, Washington, D. C., with whom William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel
Before COFFIN, Chief Judge, CLARK, Associate Justice, U. S. Supreme Ct. (Ret.),* CAMPBELL, Circuit Judge.
PER CURIAM:
This is a petition to review an order of the Occupational Safety and Health Review Commission (OSHRC), which found Petitioner D. Federico Co., Inc. (Federico) to be in violation of two regulations promulgated under the Occupational Safety and Health Act (OSHA),
Federico is a Massachusetts corporation engaged in construction. On August 8, 1973, OSHA compliance safety and health officer Dino Gigante inspected a Boston worksite, where four Federico employees were cleaning out an area under a pipe. One of these employees was working in an earth cavity 21 feet long, 13 feet wide and of varying depths, but 6.5 feet at the point where the employee was situated.
The vertical walls of the cavity were not sloped, shored, sheeted or braced, and the employee was working some three feet from a large overhang. This overhang created a concavity in the wall. Spoils were piled from 8 to 10 inches from the back wall, and the compliance officer noted that the soil was “soft and unstable,” falling in small clumps and balls.
When the citations came before an administrative law judge on January 3, 1974, they were heard on the theory that the earth cavity was a “trench,” defined by
The OSHRC reversed the administrative law judge, finding that the parties had agreed the cavity was a trench, thus disposing of the factual issue, but that the evidence clearly reflected a willful violation of the excavation standard as well, and that Federico was not prejudiced in any manner. Further, the non-serious violation under
We have carefully reviewed the record, as we must, and find no merit in Federico‘s claims. Therefore, the decision of the Commission is affirmed.
The record clearly reflects that the cavity in question could be either a “trench” or an “excavation.” The cavity was 21 feet long, 13 feet wide and of varying depths. The definition of a trench has but one limitation—it cannot be more than 15 feet wide. And although the language states that a trench is generally deeper than it is wide, the term “generally” does not foreclose the possibility of a trench being wider than it is deep.
However, the mere fact that the cavity herein is a “trench” is not dispositive of the question. As set out in Note 2, supra, the violation occurs only if sides of trenches in “unstable or soft” soil are unsupported, and Federico challenges the sufficiency of the evidence in this regard. The record reflects that Gigante saw the soil moving spontaneously, that it was “the same material all the way through” and that it was “all loose and running.” The area director saw the soil, concluding that it was sandy and very unstable. The Secretary‘s expert witness, with nearly 40 years’ experience in such matters, testified that the sample he examined an hour after it was taken from the trench was found to be
We need not discuss at any length the allegation that the non-serious violation for stacking spoils within two feet of the excavation is unsupported by the evidence. Federico does not seriously dispute this finding, nor could he in view of the facts. There is no question but what the spoils were stacked some 8“-10” from the edge of the trench. This, in and of itself, constitutes a violation of the standard.
While we affirm the findings of the OSHRC, this case is representative of unnecessary appellate litigation created by less-than-adequate handling of the initial steps in OSHRC compliance proceedings. This appeal might never have been brought if, in the first instance, Federico had been charged with the “excavation” violation as opposed to the “trench” one. We found no resulting prejudice here primarily because the excavation in question can, with some slight effort, be made to fit into the definition of a trench under the regulations, and there was clearly no prejudice caused by the trench theory. Had the excavation not been a trench, we might have been inclined to hold differently. See, e. g., Langer Roofing & Sheet Metal, Inc. v. Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975). In short, we would strongly urge OSHRC to straighten up its own trenches lest the employers it prosecutes be able to slip through unscathed.
Affirmed.
COFFIN, Chief Judge, concurring.
While I have some doubts about the ground on which the majority relies, I have no trouble in concurring in the result. If the commission had unequivocally found this hole in the ground to be a trench, its interpretation of the regulation would be entitled to great deference, but the commission did not rest on that theory, and the regulations alone do not support such a conclusion. The regulations state that a trench is, in general, deeper than it is wide.
The safety standards for excavations and trenches differ considerably. In excavations, wall supports are needed only when “the employees are exposed to danger from moving ground.”
For me, the critical question is whether this excavation‘s walls exposed any employees to danger. Although the parties did not clearly focus on this issue, the administrative law judge and the commission did. The ALJ found no danger; the commission disagreed. Although weakened by the contrary conclusion of the ALJ, see Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 95 L.Ed. 456 (1951), the commission‘s finding has substantial support in the record as a whole; it is therefore conclusive.