{
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  "name": "JOHN C. BROOKS, COMMISSIONER OF LABOR OF NORTH CAROLINA, Complainant v. REBARCO, INC., Respondent",
  "name_abbreviation": "Brooks v. Rebarco, Inc.",
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    "judges": [
      "Judges EAGLES and Orr concur."
    ],
    "parties": [
      "JOHN C. BROOKS, COMMISSIONER OF LABOR OF NORTH CAROLINA, Complainant v. REBARCO, INC., Respondent"
    ],
    "opinions": [
      {
        "text": "SMITH, Judge.\nBriefly, we outline the construction practices which constitute the basis of the formwork and shoring violation involved in this case. At the time of the incident, respondent was in the process of constructing concrete columns. This process involves erecting a hollow steel-framed form into which concrete is poured. The form, in this case a 14-foot-high, one-foot-wide, 400-pound form, was set in place by a crane. It was placed over steel rebar (cylindrical steel rods) which protruded from the floor and over wire mesh both of which extended the length of the form. After the form was set in place by a crane, a worker would scale the side of the form, attach his safety belt, and nail into the form one of several four-inch by four-inch (4\" x 4\") braces. The worker would then unhook the crane and nail into the form the remainder of the braces. The process of securing these braces took only a few minutes to complete. The braces were attached to provide stability and assure that the form was perfectly perpendicular to the floor. Additional workers were stationed at the base of the form to stabilize the column and provide assistance to the worker on the form. The Review Board found that respondent\u2019s practice of having an employee climb the form and unhook the crane before all the braces were in place rendered the form temporarily unstable and exposed employees to a hazard of the form tipping.\nRespondent brings forth as its sole assignment of error the trial court\u2019s affirmance of the Review Board\u2019s decision upholding the safety violations. It raises the following four issues in its brief:\n1.Whether the Board properly interpreted the phrase \u201crecognized hazard\u201d as that phrase is used in G.S. 95-129(1)\n2. Whether there is substantial evidence in view of the entire record ... to affirm the alleged . . . violation under G.S. 95-129(1);\n3. Whether there is substantial evidence in view of the entire record ... to support the Board\u2019s affirmance of a . . . violation of 29 CFR 1926.402(a)(4); and\n4. Whether the decision of the Board is arbitrary and capricious.\nUnless provided for by specific statute, judicial review of administrative decisions is governed by Chap. 150B, Art. 4. G.S. 150B-43. The standard for review is set forth in G.S. 150B-51(b) and states in pertinent part:\n[T]he court reviewing a final decision may affirm ... or remand .... It may also reverse or modify the agency\u2019s decision if the substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are . . .\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence ... in view of the entire record as submitted; or\n(6)Arbitrary or capricious.\nThe proper standard to be applied depends on the issues presented on appeal. Our courts have held that if it is alleged that an agency\u2019s decision was based on an error of law then a de novo review is required. Brooks, Comr. of Labor v. Grading Co., 303 N.C. 573, 281 S.E. 2d 24 (1981). \u201c \u2018When the issue on appeal is whether a state agency erred in interpreting a statutory term, an appellate court may freely substitute its judgment for that of the agency and employ de novo review.\u2019 \u201d Id. at 580-81, 281 S.E. 2d at 29, quoting Savings and Loan League v. Credit Union Comm., 302 N.C. 458, 465, 276 S.E. 2d 404, 410 (1981). A review of whether an agency decision is supported by sufficient evidence requires the court to apply the \u201cwhole record\u201d test. Thompson v. Board of Education, 292 N.C. 406, 233 S.E. 2d 538 (1977). The \u201cwhole record\u201d test is also applied when the court considers whether an agency decision is arbitrary and capricious. High Rock Lake Assoc. v. Environmental Management Comm., 51 N.C. App. 275, 276 S.E. 2d 472 (1981).\n[T]he \u2018whole record\u2019 rule requires the court, in determining the substantiality of evidence supporting the Board\u2019s decision, to take into account whatever in the record fairly detracts from the weight of the Board\u2019s evidence. Under the whole evidence rule, the court may not consider the evidence which in and of itself justifies the Board\u2019s result without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn.\nThompson, 292 N.C. at 410, 233 S.E. 2d at 541.\nComplainant cites G.S. 95-129(1) as the basis for its citation against respondent for a serious violation. This statute, often referred to as \u201cthe general duty clause,\u201d states that \u201c[e]ach employer shall furnish to each of his employees conditions of employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or serious physical harm.\u201d This statute closely parallels the federal general duty clause found at 29 U.S.C.A. Section 654(a)(1). Respondent correctly points out in its brief that North Carolina courts have yet to specifically address the interpretation of this clause; therefore, because of the similarity between the state and federal provisions, we turn to federal decisions for guidance. See Johnson v. Insurance Co., 300 N.C. 247, 266 S.E. 2d 610 (1980) (Court held that similarity between federal and state FTC statutory provisions allowed state court to seek guidance from federal decisions). Federal courts have held that to successfully prosecute a violation under the \u201cgeneral duty clause\u201d a complainant must show that an employer failed to render its workplace free of a hazard which was \u201crecognized\u201d and causing or likely to cause death or serious physical harm. National Rlty. & C. Co., Inc. v. Occupational S. & H.R. Com\u2019r., 489 F. 2d 1257 (D.C. Cir. 1973).\nRespondent first argues that the Review Board\u2019s erroneous interpretation of a \u201crecognized hazard\u201d resulted in the application of an inappropriate standard. Incorrect statutory interpretation by an agency constitutes an error of law under G.S. 150B-51(b) and allows this court to apply a de novo review. Brooks, supra. A \u201crecognized hazard\u201d has been defined as one about which the employer knew or one known about within the industry. Usery v. Marquette Cement Mfg. Co., 568 F. 2d 902 (2nd Cir. 1977). This definition has been conditioned upon a recognition that not all hazardous conditions can be prevented and that Congress, by the absolute terms of the \u201cgeneral duty clause,\u201d did not intend to impose strict liability upon employers. Only preventable hazards must be eliminated. National Rlty. & C. Co., Inc., supra. Thus, \u201ca hazard is \u2018recognized\u2019 only when the [Commissioner] demonstrates that feasible measures can be taken to reduce materially the likelihood of death or serious physical harm resulting to employees.\u201d Babcock & Wilcox Co. v. Occupational Safety, Etc., 622 F. 2d 1160, 1164 (3rd Cir. 1980).\nIn its decision, the Review Board in this case concluded: \u201c[w]hether or not a hazard exists is to be determined by the standard of a reasonable prudent person. Industry custom and practice are relevant and helpful but are not dispositive. If a reasonable and prudent person would recognize a hazard, the industry cannot eliminate it by closing its eyes.\u201d It is respondent's contention that the standard adopted by the Review Board is not the proper standard to apply when considering whether a \u201crecognized hazard\u201d exists under G.S. 95-129(1). Respondent argues that a \u201crecognized hazard\u201d is present when the industry as a whole deems it so.\nWe conclude that the Review Board applied the correct standard to determine whether respondent failed to render its workplace free of a \u201crecognized hazard.\u201d In Daniel Construction Co. v. Brooks, 73 N.C. App. 426, 326 S.E. 2d 339 (1985), a case involving the violation of a specific federal safety standard, our court, after reviewing relevant federal decisions, applied a \u201creasonable man\u201d standard in considering the safety violation and declared:\nIn order to establish that Daniel violated 29 CFR 1926.28(a) as charged in the citation, OSH had to prove that under the circumstances which existed a reasonably prudent employer would have recognized that carrying heavy objects above their unprotected feet was hazardous to the employees doing the carrying and would require them to wear safety toe shoes. Though this is but an adaptation of the \u201creasonable man\u201d standard of the common law, neither this Court nor our Supreme Court, according to our research, has yet stated the factors that may be considered in applying the standard in cases like this. For example, the Fifth Circuit has apparently interpreted 29 CFR 1926.28(a) \u2018to require only those protective measures which the knowledge and experience of the employer\u2019s industry, which the employer is presumed to share, would clearly deem appropriate under the circumstances.\u2019 Under this interpretation, as we read it, each industry is permitted to evaluate the hazards associated with its own operations and determine what, if anything, to do about them. But as applied by the First and Third Circuits, the practice in the industry is but one circumstance to consider, along with the other circumstances, in determining whether a practice meets the reasonable man standard. These courts have noted, quite properly we think, that equating the practice of an industry with what is reasonably safe and proper can result in outmoded, unsafe standards being followed to the detriment of workers in that industry. This latter application is much the sounder, we think, and we adopt and employ it in this case.\nId. at 430-31, 326 S.E. 2d at 342 (citations omitted) (emphasis in original). We are aware that Daniel involves a specific federal safety standard as opposed to the \u201cgeneral duty clause,\u201d but the duty imposed upon employers in cases involving a specific safety standard have been found analogous to the duty imposed by the \u201cgeneral duty clause.\u201d General Dynamics v. Occupational Safety & Health, 599 F. 2d 453, n.7 (1st Cir. 1979). Based on the foregoing, we conclude that the standard adopted by the Review Board in this case was proper.\nRespondent argues that there was insufficient evidence in view of the entire record to support the Review Board\u2019s conclusion that respondent violated G.S. 95-129(1). Specifically, it contends that the evidence failed to show that (1) a \u201crecognized hazard\u201d existed; (2) respondent was aware of a hazard; (3) the industry recognized respondent\u2019s formwork practices as hazardous; (4) a feasible alternative existed to respondent\u2019s allegedly hazardous practices; and (5) it was foreseeable that respondent\u2019s practices could result in death or serious injury. Additionally, respondent contends that ample evidence existed that the accident was the result of the employee\u2019s idiosyncratic behavior and that the Review Board erroneously failed to make a finding to that effect. A review of the record in this case indicates that some contradictory evidence exists as to the safety of respondent\u2019s practices and the deceased employee\u2019s actions which may have contributed to the accident.\nSubstantial evidence existed that although one of the purposes of the bracing was to assure that the form was plumb and perpendicular with the ground, another purpose was to stabilize the form. Keith Long, an employee of respondent, testified that the primary purpose of applying the braces was to keep the form straight, but he acknowledged that they do add additional reinforcement. Safety inspector Childers testified that interviews with respondent\u2019s employees revealed that, subsequent to the accident, there had been.discussions about the possibility of keeping the crane attached to the form in an effort to address the hazard. Respondent\u2019s employees also stated that the purpose of the bracing was to steady the form. Additionally, testimony of long-time Rebarco employee Hal Warmbrod indicated that the column was stable without the support of the crane, but that it lost stability when extra weight (such as a person working on the column) was placed near the top of it. As a result, extra workers were stationed at the base of the form to provide support when an employee was on the column. In a witness statement made to inspector Childers during the accident investigation, Keith Long stated that \u201cwhen it [the crane] was unhooked, the column started swaying, and then fell.\u201d Further testimony showed that the form could fall despite the presence of the steel rebar and wire mesh and that had the crane remained attached to the form it would not have tipped over. Evidence was also received that respondent, during required safety meetings, warned workers about sudden movements when working on the columns. This evidence is sufficient to show not only that respondent\u2019s practices presented a hazard but also that it was a hazard of which respondent was aware. The evidence also shows that a reasonably prudent man would consider respondent\u2019s practices a hazard and supports the Review Board\u2019s conclusion that respondent\u2019s practice was a \u201crecognized hazard\u201d under G.S. 95-129(1).\nThe Review Board further found that feasible and effective means existed to abate the hazard by keeping the crane hooked to the form while the bracing was completed. The Review Board also found that although rental on a crane cost $60.00 per hour, the process of bracing each column took only about two minutes. Testimony to that effect was received at the hearing. However, testimony was also introduced that the exclusive use of a crane for the additional time it would take to complete the bracing of the forms would be cost prohibitive. Despite the contrary nature of the testimony, sufficient evidence does exist to support the Review Board\u2019s finding. See Thompson, supra. If reliable evidence exists to support the agency\u2019s findings and conclusions, its decision is binding. Dept. of Correction v. Gibson, 58 N.C. App. 241, 293 S.E. 2d 664 (1982), rev\u2019d on other grounds, 308 N.C. 131, 301 S.E. 2d 78 (1983).\nThe Review Board also found that it was foreseeable that the hazard in this case could result in serious injury or death. We hold that such a finding is supported by the evidence. The record reveals that a 14-foot, 400-pound steel form fell over and crushed respondent\u2019s employee to death. \u201cThe fact that an activity in question actually caused one death constitutes at least prima facie evidence of likelihood: \u2018the potential for injury is indicated ... by [Stout\u2019s] death and, of course, by common sense.\u2019 \u201d Usery, 568 F. 2d at 910, quoting in part National Rlty. & C. Co., Inc., 489 F. 2d at 1265 n.33.\nIt is respondent\u2019s contention that Stout\u2019s own idiosyncratic behavior in swinging himself suddenly from one side of the form to the other caused it to fall and that respondent\u2019s duty as an employer to provide a safe working environment does not extend to such behavior. While we agree with respondent\u2019s latter point, we are unable to agree with its former assertion. It is undisputed from the testimony that Stout made a sudden, unannounced movement on the form. However, testimony describing the movement ranged from \u201cswinging wildly\u201d to \u201csudden shift of his [Stout\u2019s] weight.\u201d It is also unclear from the record whether Stout\u2019s actions were the result of his own wilful and reckless behavior or the result of a loss of footing. What the testimony shows is that Stout had previous experience climbing the forms and had never engaged in reckless behavior. Further, the testimony revealed that Stout had been warned against making sudden movements while working on the forms. From the foregoing, we hold that the Review Board\u2019s conclusion that respondent failed to sustain its burden of proof with respect to its defense that Stout\u2019s reckless behavior caused the accident was correct. Our courts, in applying the \u201cwhole record\u201d test, have noted that \u201c[t]he \u2018whole record\u2019 test does not allow the reviewing court to replace the Board\u2019s judgment as between two reasonably conflicting views.\u201d Thompson, 292 N.C. at 410, 233 S.E. 2d at 541. Therefore, after considering the entire record, we hold that the evidence is sufficient to support the Review Board\u2019s conclusion that respondent violated G.S. 95-129(1) and that the trial court\u2019s affirmance of the Review Board\u2019s decision was proper.\nWe next address respondent\u2019s contention regarding the violation of 29 CFR 1926.402(a)(4). Specifically, respondent alleges that there was sufficient evidence to show that the plugs and extension cords in question did not belong to respondent and that it took extensive measures to maintain its own electrical equipment. Again, testimony in the record is conflicting as to whom the equipment belonged. Childers testified that the cords in question were in plain sight and that he was told by employee Hal Warmbrod that respondent owned the cords. However, employee Roger Bowder testified that respondent did not own the cords and that respondent had just completed maintenance of its own cords.\nWhether respondent owned the plugs and cords is not the determinative factor in this case. The general rule as to employer culpability for safety violations is that each employer is responsible for the safety of his own employees. Grossman Steel and Aluminum Corp., 1976-76 O.S.H. Dec. (CCH) paragraph 20,691 (May 12, 1976). However, this rule has been modified in cases involving multi-employer work sites. Id. An employer is expected to make reasonable efforts to detect and abate any violation of safety standards of which it is aware and to which its employees are exposed despite the fact that the employer did not commit the violations. Id.\nThe evidence here tended to show that the cords and plugs in question were in an exposed area, open to inspection and in fact used by respondent\u2019s employees. It was further shown that respondent had instructed its employees to replace, as warranted, cords which it owned. Regardless of the ownership of the cords and plugs, respondent could have reasonably discovered and corrected the violation. Therefore, the Review Board\u2019s finding that respondent violated 29 CFR 1926.402(a)(4) is supported by the evidence.\nFinally, we address respondent\u2019s contention that the court\u2019s order was arbitrary and capricious. In making such a determination, the \u201cwhole record\u201d test is utilized. High Rock Lake Assoc., supra. A review of this record fails to reveal that the Review Board\u2019s actions were arbitrary and capricious. On the contrary, the Review Board\u2019s detailed findings and conclusions indicate a thoughtful consideration of the evidence. Respondent\u2019s assertion that the agency\u2019s decision was made to \u201cmake an example of Re-barco\u201d is not supported by the record.\nFor the foregoing reasons, the trial court\u2019s order is affirmed.\nAffirmed.\nJudges EAGLES and Orr concur.",
        "type": "majority",
        "author": "SMITH, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Associate Attorney General Melissa L. Trippe, for appellee.",
      "Johnson, Gamble, Hearn & Vinegar, by Richard J. Vinegar and Kathleen M. Waylett, for respondent-appellant."
    ],
    "corrections": "",
    "head_matter": "JOHN C. BROOKS, COMMISSIONER OF LABOR OF NORTH CAROLINA, Complainant v. REBARCO, INC., Respondent\nNo. 8810SC197\n(Filed 4 October 1988)\n1. Master and Servant 8 114\u2014 existence of recognized hazard \u2014 application of reasonable man standard proper\nThe OSHA Review Board acted properly in applying the \u201creasonable man\u201d standard in determining whether a \u201crecognized hazard\u201d existed in respondent\u2019s workplace under N.C.G.S. \u00a7 95-129(1).\n2. Master and Servant \u00a7 114\u2014 method of bracing concrete forms \u2014 recognized hazard \u2014 employer\u2019s knowledge \u2014 sufficiency of evidence\nEvidence that the practice of respondent, a concrete and steel reinforcing subcontractor, was to remove a crane from a concrete form before attaching all braces to the form, that the braces assured that the form was perpendicular to the floor and added stability, that forms lost stability when a worker scaled them to attach the braces and extra workers were stationed at the base of the form to provide support when an employee was on the column, that the form would not have tipped over had the crane been attached, and that respondent, during required safety meetings, warned workers about sudden movements when working on the columns was sufficient to show that respondent\u2019s practices presented a hazard; respondent was aware of the hazard; and a reasonably prudent person would consider respondent\u2019s practices a hazard. Such findings supported the OSHA Review Board\u2019s conclusion that respondent\u2019s practice was a \u201crecognized hazard\u201d under N.C.G.S. \u00a7 95-129(1).\n3. Master and Servant \u00a7 114\u2014 recognized hazard in workplace \u2014 existence of means to abate hazard \u2014 sufficiency of evidence\nEvidence was sufficient to support the OSHA Review Board\u2019s finding that feasible and effective means existed to abate a hazard in respondent\u2019s workplace by keeping a crane attached to a concrete form while bracing was completed, rather than removing the crane after only one brace was in place, and the Board\u2019s decision citing respondent for a violation of N.C.G.S. \u00a7 95-129(1) was binding, even though there was evidence that exclusive use of the crane for the additional time it would take to complete the bracing of the forms would be cost prohibitive.\n4. Master and Servant \u00a7 114\u2014 recognized hazard in workplace \u2014 foreseeability of injury \u2014 sufficiency of evidence\nEvidence was sufficient to support the OSHA Review Board\u2019s finding that it was foreseeable that the hazard in this case could result in serious injury or death, and respondent failed to sustain its burden of proof with respect to its defense that the employee\u2019s reckless behavior caused the accident.\n5. Master and Servant 8 114\u2014 failure to maintain safe electrical plugs and extension cords \u2014 employer as owner of plugs \u2014 sufficiency of evidence\nEvidence was sufficient to support the OSHA Review Board\u2019s conclusion that respondent violated 29 CFR 1926.402(a)(4) by failing to maintain safe electrical plugs and extension cords where such evidence tended to show that the cords and plugs in question were in an exposed area, open to inspection, and in fact used by respondent\u2019s employees; furthermore, whether respondent owned the plugs was not the determinative factor, since an employer in a multi-employer work site is expected to make reasonable efforts to detect and abate any violation of safety standards of which it is aware and to which its employees are exposed despite the fact that the employer did not commit the violation.\nAPPEAL by respondent from Bowen (Wiley F.), Judge. Order entered 29 October 1987 in Superior Court, WAKE County. Heard in the Court of Appeals 30 August 1988.\nRespondent is a North Carolina corporation doing business as a concrete and steel reinforcing subcontractor. On 15 July 1983, respondent\u2019s employee, Larry Daniel Stout, was killed when a 14-foot-high, 400-pound concrete form from which he was suspended tipped over and fell on him. At the time of this incident, respondent was involved in the construction of the Johnston County Memorial Hospital in Smithfield, North Carolina. On 18 July 1983, Tim Childers, a safety officer with the Occupational Safety and Health Division of the North Carolina Department of Labor, visited the construction site to investigate the accident. As a result of the investigation, Childers recommended that two citations be issued against respondent. He recommended that respondent be cited for a violation of 29 CFR 1926.701(a)(1) which required that formwork and shoring be designed, erected, supported, braced and maintained in a manner which would safely support lateral and vertical loads. Childers discovered electrical extension cords had been pulled loose from the plug cover causing strain on the terminal wire, and further recommended that a citation be issued for a violation of 29 CFR 1926.402(a)(4) (as it existed in 1983) which required use of attachment plugs that could endure rough use and have cord grips to prevent strain on the terminal screws. On 26 August 1983, the citation alleging a violation of 29 CFR 1926.701(a)(1) was amended to allege in the alternative a violation of G.S. 95-129(1). Respondent was assessed a penalty of $420.00 for the formwork and shoring violations.\nOn 31 August 1983, respondent filed a notice to contest the citations and proposed penalty with the Occupational Safety and Health Review Board (Review Board). On 7 February 1985, a hearing examiner filed an order affirming the issuance of both citations and the proposed penalty. However, he concluded that 29 CFR 1926.701(a)(1) did not apply to the work in which respondent was engaged when the accident occurred. On 7 March 1985, respondent petitioned for review of the hearing examiner\u2019s order with the Review Board. The Board affirmed the examiner\u2019s decision on 6 December 1985. On 8 January 1986, respondent filed a petition in the Superior Court of Wake County requesting judicial review. The Superior Court entered an order on 29 October 1987 affirming the Review Board\u2019s decision. Respondent appeals.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Melissa L. Trippe, for appellee.\nJohnson, Gamble, Hearn & Vinegar, by Richard J. Vinegar and Kathleen M. Waylett, for respondent-appellant."
  },
  "file_name": "0459-01",
  "first_page_order": 487,
  "last_page_order": 497
}
