Usery v. Lacy

628 F.2d 1226, 8 BNA OSHC 2060, 8 OSHC (BNA) 2060, 1980 U.S. App. LEXIS 13746

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 24, 1980
• Docket: No. 76-2201
• Status: Published

Opinions

KENNEDY, Circuit Judge:

This appeal presents the question whether an employer can be cited for violating the Occupational Safety and Health Act (OSHA), 29 U.S.C. §§ 651-678 (1976), in the course of constructing a medium-sized apartment building, or whether his contacts with interstate commerce are too attenuated or uncertain to bring him within the Act’s coverage.

An administrative law judge dismissed the complaint against respondent on December 16, 1974, because the “Secretary has failed to meet his burden of proving that Respondent was ‘engaged in a business affecting commerce.’ ” (quoting 29 U.S.C. § 652(5) (1976)). Franklin R. Lacy, 4 O.S. H. C. (BNA) 1115 (1974). The Occupational Safety and Health Review Commission (OSHRC) affirmed this dismissal on April 5, 1976, with Commissioner Cleary dissenting. The Secretary of Labor petitioned this court, pursuant to 29 U.S.C. § 660(b) (1976), to set aside the decision of the OSHRC on the jurisdictional issue and to remand the case for a decision on the merits. The employer in this case employed approximately forty workers for the construction of a fifteen-unit apartment building. The OSHRC held that, under the facts of the case, the employer was not shown to be engaged in a business affecting commerce. We think that interpretation of OSHA is not in accordance with law, and therefore reverse. See Titanium Metals Corp. v. Usery, 579 F.2d 536, 540 (9th Cir. 1978).

It may be helpful to contrast here two of the principal formulations of statutory jurisdiction that have evolved from the congressional history of regulating the employment relation. If a statute covers businesses “in commerce,” a fairly specific showing must be made of a connection between the particular employer regulated and interstate commerce. See, e. g., Fair Labor Standards Act, 29 U.S.C. § 201 et seq., (1976). See Mitchell v. Lublin, McGaughty & Assocs., 358 U.S. 207, 211, 79 S.Ct. 260, 263, 3 L.Ed.2d 243 (1959); A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942); United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941); Houser v. Matson, 447 F.2d 860 (9th Cir. 1971); Wirtz v. Idaho Sheet Metal Works, Inc., 335 F.2d 952 (9th Cir. 1964). This is the interpretation apparently followed by the OSHRC in the instant case, inasmuch as it focused on the allegations and proof concerning whether the employer used materials and tools supplied by interstate manufacturers.¹

On the other hand, a statute may require only that the particular business “affect” commerce. See, e. g., National Labor Relations Act, 29 U.S.C. §§ 151 et seq. OSHA is a statute which employs this formulation. In such cases there is statutory jurisdiction so long as the business is in a class of activity that as a whole affects commerce. NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963); Polish Nat. Alliance v. NLRB, 322 U.S. 643, 647-48, 64 S.Ct. 1196, 1198-99, 88 L.Ed. 1509 (1944); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 34-39, 57 S.Ct. 615, 622-625, 81 L.Ed. 893 (1937). OSHA is an example of this broader jurisdiction, which covers the full reach of Congress’ power under the commerce clause.

The regulations which implement OSHA state, essentially, that all employers are covered, with some specific exceptions, such as for those who employ domestic help. See 29 C.F.R. §§ 1975.4, 1975.6 (1979). The coverage of the regulations is consistent with the congressional purpose to reach as broadly as constitutionally permissible in regulating employee safety, since nonuniform coverage would give unsafe employers a competitive advantage.² See S. Rep. No. 91-1282, 91st Cong., 2d Sess. 4 (1970), reprinted in Staff of Subcomm. on Labor of the Senate Comm, on Labor and Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970 (S. 2193, P.L. 91-596), 92d Cong., 1st Sess. 144 (Comm. Print 1971) [hereinafter cited as Legislative History], reprinted in [1970] U.S. Code Cong. & Ad.News 5177, 5180. See also Legislative History at 343, 444, 854. We need not here decide whether the regulations are valid as to every conceivable instance of their application. It suffices to say that here the employer hired approximately forty workers for the construction of a fifteen-unit apartment building, and that is a business that affects commerce as a matter of law, for it is within the class of activities that it was Congress’ intent to regulate, in extending the Act to employers whose activities in the aggregate affect commerce.³ See Godwin v. Occupational Safety and Health Review Comm’n, 540 F.2d 1013 (9th Cir. 1976); United States v. Dye Constr. Co., 510 F.2d 78 (10th Cir. 1975); Brennan v. Occupational Safety and Health Review Comm’n, 492 F.2d 1027 (2d Cir. 1974) (Friendly, J.); Marshall v. Kraynak, 457 F.Supp. 907 (W.D.Pa. 1978), aff’d, 604 F.2d 231 (3rd Cir. 1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 643 (1980). Whatever might have been said about the correctness of cases such as Hiatt v. Schlecht, 400 F.2d 875 (9th Cir. 1968), at the time of their decision, their value as precedent is significantly eroded by the more recent cases in this and other circuits just cited.

Finally, we follow other recent decisions that have held Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), not retroactively applicable to enforce an exclusionary rule against OSHA for warrantless inspections. See Savina Home Indus. Inc. v. Secretary of Labor, 594 F.2d 1358 (10th Cir. 1979); Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683 (9th Cir. 1978).

The decision of the OSHRC is therefore REVERSED and REMANDED for further proceedings not inconsistent with this opinion. The Review Commission may, in its discretion, consider whether the lapse of time between the violations and the date of this decision is a factor to be considered in mitigating the amount of the fines levied against Respondent. Each side shall bear its own costs of this appeal.

1 . The Review Commission’s policy of requiring the Secretary to prove an effect on commerce derives from two cases, Wilshire Terrace, 1 O.S.H.C. (BNA) 3053 (1973), and Les Mares, Enterprises, Inc., 3 O.S.H.C. (BNA) 1015 (1975), rev’d sub nom. Godwin v. OSHRC, 540 F.2d 1013 (9th Cir. 1976). The facts of Wilshire Terrace are not clear, but it appears that someone employed as a handyman by the owner-occupants of a co-op apartment building suffered an electric shock while fixing an air conditioner. To the extent that his employment was not in the course of a business of the conventional sort, and was more like a domestic activity specifically excluded from the Act’s coverage, see 29 C.F.R. § 1975.6 (1979), the activity in the Wilshire case might or might not be one as to which a proper interpretation of the Act would allot to the Secretary the burden of proving a nexus with commerce. Since we hold that all who employ construction workers are covered by the Act, it follows that the Act does not permit the Review Commission to require the Secretary to show a specific effect on commerce by each employer cited for violating OSHA, because such a showing is irrelevant.

2 . In view of the fact that Congress may constitutionally regulate the wages of domestic servants by its power under the commerce clause, see Marshall v. Rose, 616 F.2d 102 (4th Cir. 1980), any argument that regulation of the safety conditions of employees building an apartment is beyond the national legislature’s constitutional reach would be frivolous.

3 . We construe 29 C.F.R. § 2200.33(a)(2)(i) (1979) consistently with our interpretation of the jurisdiction of the Act to mean that the “jurisdictional basis” the Secretary is to allege is the employer’s engaging in an activity which, in the aggregate, affects commerce. See Richard Norby & Rocky Norby, Partners, 4 O.S.H.C. (BNA) 1722 (1974).

There is yet another basis for holding that the “affecting commerce” test was met here. Even if we interpreted the Act to require the Secretary to show a more particular and tangible nexus with interstate commerce, he has carried that additional burden. Respondent Lacy testified that he used material and tools manufactured by Weyerhaeuser and Craftsman (Sears Roebuck). The use of material that has at any point moved in commerce is enough to establish that a business affects commerce, and it is appropriate to take judicial notice of the fact that Lacy’s ultimate suppliers, Weyerhaeuser and Sears, are engaged in the production and distribution of goods for commerce. See Daniel v. Paul, 395 U.S. 298, 305, 89 S.Ct. 1697, 1701, 23 L.Ed.2d 318 (1969); West Allis Lime & Cement Co., 2 O.S.H.C. (BNA) 1453, 1456 (1974); Salerno Bros. Inc., 2 O.S.H.C. (BNA) 3249 (1974).