Mohawk Excavating, Inc. petitions for review of a final order of the Occupational Safety and Health Review Commission finding that it violated the Occupational Safety and Health Act of 1970, and imposing a penalty of $75.00. Petitioner claims that there is insufficient evidence to support the order and that the Act is unconstitutional. Order enforced.
Smith, Anderson and Timbers, Circuit Judges.
Mohawk Excavating, Inc. ("Mohawk") petitions for review of a final order of the Occupational Safety and Health Review Commission ("the Commission"). The order finds that Mohawk violated the Occupational Safety and Health Act of 1970 ("the Act"), 29 U.S.C. § 651 et seq., and imposes a $75 penalty. Mohawk claims that the Commission's finding is not supported by substantial evidence on the record and that the Act is unconstitutional. We find no merit in Mohawk's claims and order the Commission's order enforced.
On June 24, 1974 Harold Smith, the Commission's Area Director, inspected a sewer trench that Mohawk was digging in Enfield, Connecticut and then cited Mohawk for two "non-serious" violations of the Act,*fn1 he proposed a civil penalty of $75 for each violation. Mohawk contested both violations, and on March 27, 1975 a hearing was held before an Administrative Law Judge ("ALJ"). On October 29, 1975 the ALJ affirmed one violation and its $75 civil penalty and vacated the other violation and its proposed penalty. On February 11, 1976 the Commission approved the ALJ's decision. Pursuant to § 660(a) of the Act, Mohawk petitions this court for review of the Commission's final order.
This appeal involves Mohawk's alleged failure to have an adequate exit from the trench, in violation of 29 C.F.R. § 1926.652(h).*fn2 Section 660(a) of the Act says "the findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive."
The government relies on several photographs and the testimony of Smith to support the ALJ's findings. The trench was approximately 35 feet long, 14 feet, 5 inches deep, 8 feet wide at the top, and 5 feet wide at the bottom. Inside the trench was a steel "trench box," which was 16 feet long, 10 feet high, and weighed 6 to 7 tons. Its sides were constructed of steel plates which were framed vertically and horizontally with steel girders, or "I" beams. The vertical distance between the "I" beam supports was from 2 to 3 feet. The vertical distance from the bottom of the trench to the lowest "I" beam was 4 to 5 feet. There was no ladder in the trench. Workers left the trench by using the "I" beams as steps to climb up the side of the trench box. Based on these undisputed facts, the ALJ found "the 'first step' of this means of exit less than desirable or adequate." (Appendix at 10). He suggested that Mohawk could weld a metal ladder to the inside of the trench box and observed that Mohawk had done this on some of its other trench boxes.
Noting that Mohawk's foreman had immediately put a ladder into the trench when Smith indicated the need for one on June 24 and that Mohawk had paid without protest penalties for a previous "serious" violation and a previous "non-serious" violation, the ALJ concluded that the $75 penalty for this violation was appropriate and reasonable.
To refute the ALJ's findings, Mohawk relies on the testimony of its President, two of its employees, and two engineers, all of whom said that climbing up the "I" beams was an adequate and safe way of leaving the trench. Mohawk says that Smith "did not go into the trench (or try to get out of it). . . . There is no evidence in the record that Mr. Smith bothered to have anyone try it or that the trial judge [ALJ] tried it. . . ." (Appellant's Reply Brief at 1).
There is no requirement that the trier of fact go to the scene of the alleged violation, especially when, as here, the condition of the trench at the time of the hearing was probably very different from its condition at the time of the alleged violation. The trier of fact - whether a judge or a jury - can weigh the photographs that are in evidence along with the testimony of Mohawk's witnesses. We have examined all the evidence on the record and conclude that there is substantial evidence on the record considered as a whole that Mohawk violated 29 C.F.R. § 1926.652(h). The photographs and testimony of the height of the "first step" taken in conjunction with the statements of the foreman and the use of ladders in other boxes are quite sufficient to overbalance the evidence of Mohawk in this regard.
We turn now to Mohawk's claims that the Act is unconstitutional.*fn3 Section 658(a) of the Act authorizes the Secretary of Labor ("the Secretary") to issue a citation before holding a hearing, and § 659 of the Act authorizes the Secretary to notify the employer, prior to a hearing, of the proposed penalty. Relying on Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972), Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971), and Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970), Mohawk argues that this procedure violates the due process clause of the fifth amendment by not providing for a prior hearing.
Mohawk's argument ignores more recent cases which hold that in some situations due process requires only a prompt, not a prior hearing. Mathews v. Eldridge, 424 U.S. 319, 349, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606, 42 L. Ed. 2d 751, 95 S. Ct. 719 (1975); Fusari v. Steinberg, 419 U.S. 379, 389, 42 L. Ed. 2d 521, 95 ...