Opinion
No. 75-1314.
Argued November 14, 1975.
Decided June 24, 1977.
William H. McElwee, III, North Wilkesboro, N.C. (McElwee, Hall McElwee, North Wilkesboro, N.C., on brief), for appellant.
Robert K. Salyers, Jr., Atty., U.S. Dept. of Labor, Washington, D.C. (William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, and Michael H. Levin, Counsel for Appellate Litigation, U.S. Dept. of Labor, Washington, D.C., on brief), for appellee.
Petition for review from the Occupational Safety and Health Review Commission.
Before HAYNSWORTH, Chief Judge, and BUTZNER and WIDENER, Circuit Judges.
This petition for review of a decision of the Occupational Safety and Health Review Commission involves two issues: first, whether the Occupational Safety and Health Act of 1970 denied the petitioner, Floyd Pike Electrical Contractor, Inc., a trial by jury in violation of the Seventh Amendment, and, second, whether the violation of safety standards by the petitioner's foreman could be imputed to the petitioner.
The Commission's decision is reported as Secretary v. Floyd S. Pike Electrical Contractor, Inc., 15 OSAHRC Rep. 302 (1975).
Since the question of the Act's constitutionality was pending before the Supreme Court, we deferred disposition of the petition until the Court decided this issue. The Court has now ruled that the Seventh Amendment is not a bar to the imposition of civil penalties by an administrative tribunal as authorized by the Act.
In the meantime, while this petition for review was pending before us, the Commission decided Secretary v. Engineers Construction, Inc., 20 OSAHRC Rep. 348 (1975). There, the Commission ruled that an employer is not responsible for its supervisor's unauthorized acts. That decision appears to be inconsistent with the law previously applied to this case. Indeed, one commissioner has suggested that Engineers seems to overrule the decision in this case that a foreman's violations can be imputed to his employer. See Engineers, 20 OSAHRC Rep. at 352 (Cleary, Commissioner, dissenting). See also Ocean Electric Corp., OSHRC Docket No. 5811, 1975-76 OSHD 23,992, 23,993-994, n. 5 (dictum).
We, therefore, vacate the commissioner's judgment and remand this case for reconsideration in light of Engineers. If the Commission decides to reaffirm, it should explain (a) why the case does not conflict with Engineers; or (b) if the case cannot be reconciled, why it adheres to its ruling. If it decides that its judgment should be modified, it should explain the reasons for its change of view.
Vacated and remanded.