Brooks v. McWhirter Grading Co. , 49 N.C. App. 352 ( 1980 )

WELLS, Judge:

Respondent first argues that the Superior Court erred in affirming the Review Board’s decision because the Board did not make the appropriate findings of fact and conclusions of law to support its decision.

G.S. 95-135(d), in pertinent part, provides as follows:

(d) Every official act of the Board shall be entered of record and its hearings and records shall be open to the public. The Board is authorized and empowered to make such procedural rules as are necessary for the orderly transaction of its proceedings. Unless the Board adopts a different rule, the proceedings, as nearly as possible, shall be in accordance with the Rules of Civil Procedure, G.S. 1A-1. ...

G.S. 95-135(i), in pertinent part, provides as follows:

(i) A hearing examiner appointed by the chairman of the Board shall he.ar, and make a determination upon any proceeding instituted before the Board and may hear any motion in connection therewith, assigned to such hearing examiner, and shall make a report of any such determination which constitutes his final disposition of the proceedings. ... Upon review of said report and determination by the hearing examiner the Board may adopt, modify or vacate the report of the hearing examiner and notify the interested parties. ...

The Board has adopted rules of procedure pursuant to the authority granted in G.S. 95-135(d). See Title 13, ch. 7B, sec. 600, N.C. Administrative Code Rules. Rules of Procedure .0601 and .0602, in pertinent part, provide as follows:

.0601 DECISIONS OF HEARING EXAMINER

(a) The decision of the hearing examiner shall include findings of fact, conclusions of law, and an order.

(b) The hearing examiner shall sign and date the decision. Upon issuance of the decision, jurisdiction shall rest solely in the board, and all motions, petitions and other pleadings filed subsequent to such issuance shall be addressed to the board.

.0602 REVIEW

(e) Upon review of any decision of a hearing examiner, the board may adopt, modify or vacate the decision of the hearing examiner and notify the interested parties. ...

Pursuant to the statute and the rules adopted by the Board, it is the function and duty of the hearing officer to conduct the initial hearing and make the requisite findings of fact and conclusions of law. The record clearly shows and there seems to be no dispute that these requirements were complied with. The statute and the rules contemplate that the Board in reviewing the order of the hearing examiner need not itself make findings of fact or conclusions of law separate from those contained in the order of the hearing examiner, but may “adopt, modify or vacate” the order of the hearing examiner. G.S. 95-135(i).

The next phase of the question before us is whether the action of the Review Board comports with or fulfills the stated function and authority of the Board to “adopt, modify or vacate” the decision of the hearing examiner. Following respondent’s petition for review, the Board issued its notice of hearing. Following the hearing, the Board entered its written decision. The Board’s “decision” contains a section entitled “Statement of Facts” and a section entitled “Decision of the Review Board.” In its statement of facts, the Board’s decision restated the findings of fact made by the hearing examiner almost verbatim, narrated some of the evidence, and made additional findings. In so doing, it has both adopted and modified the findings of fact portion of the examiner’s order.

The decision section of the Board’s “decision” is inexpertly written. It contains discussions, arguments, contentions, evidence, and conclusions, all of which are intermixed and thrown together in somewhat random fashion. Inartful though it is, that section of the decision does acceptably serve to modify the order of the hearing examiner so as to conclude that the cited violation was repeated and serious, justifying the additional penalty assessed. This assignment is overruled.

Respondent next argues that there was no evidence to support the Board’s findings and conclusions that respondent’s employees were deliberately endangered and that respondent’s foreman blatantly disregarded the requirements of the Act. While there seems to be some merit to this portion of respondent’s argument, we find that if there was error in including these disputed statements in the Board’s decision, it was harmless error because the evidence supports the Board’s conclusion that the cited violation was “repeated” and “serious”.

The definition of a serious violation is found in G.S. 95-127(18), as follows:³

(18) A “serious violation” shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use at such place of employment, unless the employer did not know, and could not, with the exercise of reasonable diligence, know of the presence of the violation.

It is stated in 45 A.L.R. Fed. 785, at § 2 (1979) that:

An employer may be found to have committed a serious violation either of the Act’s general duty clause, requiring an employer to furnish a place of employment free from recognizable hazards likely to cause death or serious physical harm to his employees, or of a violation [of] the specific safety or health standard promulgated under the OSHA. Most of the latter types of serious violations have occurred -with respect to regulations requiring that trenches and excavations in which employees work be properly shored, sloped, or otherwise protected, and regulations requiring the use of equipment or devices to protect employees from the danger of falling.

See also Sec. 8 for annotation of trench or excavation cases. The trench in question was eight feet deep and at least eight feet in length. There was no shoring or wall support of any kind, nor any sloping. Such evidence supports the Board’s finding and conclusic n that the violation was serious.

Respondent argues that it was not guilty of a repeated violation because the previous violation found against it was for work in soft or unstable soil while the violation in this case was for work in hard, compact soil. We do not believe that the Act should be so narrowly construed. While the element of risk between the two types of soil may reasonably require differing types of precautions, the basic risk or danger to the employee is the same: collapse of the trench or excavation wall. Such was the case here and we find that the evidence supports the Board’s conclusion in this respect.

Finally, respondent argues that it should be excused in this case because the acts or omissions of its job superintendent on this occasion were not imputable to it. While we recognize that the acts or omissions of unsupervised employees may on occasion not be reasonably imputed to an employer under the Act, in ths case sub judice, there was evidence that the decision as to the use of shoring or sloping was delegated by respondent to its job • luperintendent, and therefore, this argument must be rejected.

Considering the whole record before the Superior Court, see Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E. 2d 538, 541 (1977), the trial court was justified in affirming the decision of the Review Board and we accordingly find

No error.

Judges Arnold and Erwin concur.

3 G.S. 95-127(18) is substantially identical to Sec. 17(k) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 666(3).