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Recent Developments in North Carolina Case Law (December 1973 to February 1975) North Carolina Law Review

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Recent Developments in North Carolina Case Law (December 1973 to February 1975) North Carolina Law Review NORTH CAROLINA LAW REVIEW Volume 53 | Number 5 Article 6 6-1-1975 Recent Developments in North Carolina Case Law (December 1973 to February 1975) North Carolina Law Review Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation North Carolina Law Review, Recent Developments in North Carolina Case Law (December 1973 to February 1975), 53 N.C. L. Rev. 1005 (1975). Available at: http://scholarship.law.unc.edu/nclr/vol53/iss5/6 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. RECENT DEVELOPMENTS IN NORTH CAROLINA CASE LAW (December 1973 to February 1975) Administrative Law-Proceedings Under the North Carolina Occupational Safety and Health Act Growing out of increased congressional concern over job injuries and the economic disincentives to improve working conditions offered by the worker's compensation programs, the Williams-Steiger Occupa- tional Safety and Health Act of 1970 was enacted by Congress.' Al- ready in the brief three-year existence of the program, the federal OSHA has generated a vast amount of legal commentary over its legi- timacy.2 The Act was designed to unify all existing federal safety pro- grams and to promulgate standards for working safety to meet the haz- ards of the future. To achieve these goals, federal OSHA directs the United States Secretary of Labor, with the advice of the National Insti- tute for Occupational Safety and Health (NIOSH) and the National Ad- visory Council on Occupational Safety and Health (NACOSH), to adopt minimum safety standards for various industrial classifications.3 In addition, the United States Department of Labor is responsible for enforcing these standards.4 This enforcement is accomplished by safety compliance officers operating out of regional offices.5 1. 29 U.S.C. §§ 651-76 (1970). 2. See, e.g., Brady, The New Occupational Safety and Health Act-its Impact on Contractors and Sureties, 8 FORUM (A.B.A.) 114 (1972); Cohen, The Occupational Safety and Health Act. A Labor Lawyer's Overview, 33 Omo ST. LJ. 788 (1972); Greenberg, OSHA: More Headaches for the Building Industry, 7 PuB. CONTIACT LJ. 106 (1974); Heath, Implementation and Philosophy of the Williams-Steiger Occupa- tional Safety and Health Act of 1970, 25 U. FLA. L. REv. 249 (1973); Homberger, Oc- cupational Safety and Health Act of 1970, 21 CLEV. ST. L. Rnv. 1 (1972); Moran, A Critique of the Occupational Safety and Health Act of 1970, 67 Nw. U.L. REv. 249 (1973); Moran, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 HARv. L. Ruv. 988 (1973); Moran, How to Obtain Job Safely Justice, 24 LAn. LJ. 387 (19731); Moran, Parties to Proceedings in the Court of Appeals Under the Occupational Safety and Health Act of 1970, 15 B.C. IND. & COM. L. REy. 1089 (1974); Mullins, OSHA-The Federal Government and Job Safety, 19 RocKy MT. MmrNaJ. L. INSV. 155 (1974); Satter, Shedding Some Light on the Burden of Proof in Demonstrating a Violation of the General Duty Clause of OSHA: National Realty, 15 B.C. IND. & COM. L. REV. 1075 (1974); Spann, The New Occupational Safety and Health Act, 58 A.B.AJ. 225 (1972); White, Occupational Safety and Health-A New Area of the Law for the Legal Practitioner, 61 ILL. B.I. 522 (1973); Special Section, The OccupationalSafety and Health Act of 1970, 20 WAYNE L. REv. 987 (1974); Sym- posium, 9 GONZAOA L. Rav. 317 (1974); Symposium: Occupational Safety and Health, 9 TRIAL, July-Aug. 1973, at 12. 3. 29 U.S.C. §§ 655-56 (1970). 4. Id. §§ 655-59. 5. See The President'sReport on Occupational Safety and Health for 1972, CCH 1006 NORTH CAROLINA LAW REVIEW [Vol. 53 The federal OSHA, however, provides for the development of state plans, under Department of Labor supervision, to allow local en- forcement of health and safety standards.0 During the developmental phase of these state programs, the United States Department of Labor and the corresponding state enforcement agencies share concurrent jur- isdiction. However, when fully operational, the state agency takes over all responsibility for enforcement, at least for those standards the state has chosen to adopt. North Carolina has promulgated a state OSHA program that is patterned on the federal Act with a few deviations.7 This program is now in full operation and is functioning under a proba- tionary status until full approval is granted, a step expected within the next year. The purpose of the State Act is "to assure so far as possible, every working man and woman in the State of North Carolina safe and healthful working conditions and to preserve our human resources."' North Carolina has chosen to assume enforcement of all of the federal safety standards except those dealing with maritime or long- shoreman operations.' The major areas of regulation are general in- dustry and construction safety and exposure to toxic substances.10 Topics dealt with in these regulations include, among other items, the shoring of excavations, personal protective equipment in dangerous areas such as steel-toe shoes and hard-hats, guards for exposed operating equipment, and the amount of toxic chemicals allowed in the air of manufacturing plants." Every employer in the State must com- ply with these standards and keep extensive records on all occupational injuries and diseases.' 2 EMT. SAFnr & HEALTH GUIDE-SPECIAL REPORT, February 24, 1974, at 59-60. Eleven regional offices have been set up in Boston, New York, Philadelphia, Atlanta, Chicago, Dallas, Kansas City, Denver, San Francisco, and Seattle. See also 29 U.S.C. § 657 (1970). 6. Id. §§ 667, 672(f)-(g), 673(c). Thirty-six states are presently developing en- forcement plans, Nineteen states, including North Carolina, have plans in operation on a probationary basis. Three states have fully operational plans completely run by the state. 7. N.C. GEN. STAT. §§ 95-126 to -155 (Supp. 1974). 8. Id. § 95-126(b)(2). 9. Id. § 95-131. The Commissioner has adopted the General Industry Standards and the Construction Standards as a first step in the North Carolina standard program. 10. The North Carolina Department of Labor will automatically adopt all new fed- eral consensus standards as they are promulgated. In addition, special standards may be adopted by the North Carolina Commissioner of Labor with the advice of the North Carolina Advisory Council and the approval of the federal area directors. N.C. GEN. STAT. § 95-131 (Supp. 1974). 11. The federal standards are contained in 29 C.F.R. § 1910 (1973). 12. Employers with less than 8 employees have recently been exempted from the record-keeping requirements. 1575] OCCUPATIONAL SAFETY AND HEALTH 1007 ENFORCEMENT PROCEEDINGS Under the North Carolina Act, the State Department of Labor has the responsibility for enforcing the safety standards in the State.1" A team of safety compliance officers conducts inspections of premises looking for violations.14 These officers are given full administrative search authority by N.C. OSHA, a right that has been constitutionally upheld at the federal level. 5 If a violation is found, the inspector points it out to the employer and notes it in his inspection report. If the condition is considered to present an imminent danger to the safety of employees, the State Department of Labor can take immediate steps to halt operations by applying directly to the judiciary for an injunc- tion.'1 In ordinary situations, the safety officer reports any alleged viola- tions to the Director of the Office of Occupational Safety and Health, who within several days, will issue a formal citation that carries an abatement date and may carry a proposed penalty.' 7 If the employer does not contest the citation, abatement date, or penalty, they become final orders of the Review Board after fifteen working days.' 8 After the employer has had time to correct the unsafe conditions, a follow- up inspection is conducted to insure that action has been taken. The Act provides, however, that a citation may be challenged in an administrative hearing in three ways. First, the employer may con- test the citation, abatement date, or proposed penalty by a simple letter notice of contest addressed to the Director of OSHA.19 The employer may also initiate a hearing by requesting a modification of abatement date after the citation has become final.20 Usually such a request must be approved by the Director of OSHA; however, if he denies the request, the employer may appeal administratively."' 13. N.C. GEN. STAT. §§ 95-126(b) (2) (c), (m), -133 (Supp. 1974). 14. Id. § 95-136. The detailed procedures for inspections are contained in Occu- PATIONAL SAFETY AND HEALTH DmSION, NORTH CAROLINA DEPARTMENT OF LABOR, OSHA FIELD OPERATIONS MANUAL (1974) [hereinafter cited as OPERATIONS MANUAL]. 15. 29 U.S.C. § 657 (1970). See Brennan v. Buckeye Indus., Inc., 374 F. Supp. 1350 (S.D. Ga. 1974). 16. N.C. GEN. STAT. § 95-140 (Supp. 1974). 17. Id. § 95-137. See OPERATIONS MANUAL, supra note 14, ch. IX, at 1-18. 18. N.C. GEN. STAT. § 95-137(b)(1) (Supp. 1974). 19. Id. § 95-137(b)(4). See NoRm CAROLINA OCCUPATIONAL SAFElY AND HEALTH REVIEW BOARD RULES OF PROCEDURE, rule 32 (1975) [hereinafter cited as REVEw BD. R. -1. 20. RBvmw BD. R. 34. 21. Id. 1008 NORTH CAROLINA LAW REVIEW [Vol. 53 Thirdly, the employees affected by unsafe conditions may initiate a hearing on the appropriateness of the abatement period given their em- ployer by a letter of contest when they feel their safety is threatened 22 by an exceedingly long abatement-correction time.
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