1The Hon. William Matthew Byrne, Jr., United States District Judge for the

Central District of California, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2426

___________

McKie Ford, Inc., *

*

Petitioner, *

*

v. * On Petition for Review

* of an Order of the

* Occupational Safety and

Secretary of Labor; United States * Health Review Commission.

Department of Labor; and *

Occupational Safety and Health *

Review Commission, *

*

Respondents. *

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Submitted: June 16, 1999

Filed: September 7, 1999

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Before RICHARD S. ARNOLD and ROSS, Circuit Judges, and BYRNE,1 District

Judge.

___________

RICHARD S. ARNOLD, Circuit Judge.

This is an appeal from a final order of the Occupational Safety and Health

Review Commission upholding a citation issued to McKie Ford. The citation alleged
2The Hon. Stanley M. Schwartz.

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that McKie Ford willfully violated section 5(a)(1) of the Occupational Safety and

Health Act, 29 U.S.C. § 654(a)(1), known colloquially as "the general duty clause," by

failing to furnish a place of employment free from recognized hazards likely to cause

death or serious injury to employees. The citation followed an investigation by OSHA

into a workplace accident which resulted in the death of a McKie Ford employee.

McKie contested the citation and a hearing was held before an Administrative Law

Judge.2 The ALJ issued a decision and order affirming the citation, and this decision

became final when the Commission failed to direct it for review. We affirm.

I.

In reviewing the Commission's decision, we accept the Commission's factual

findings if they are "supported by substantial evidence on the record considered as a

whole . . .." 29 U.S.C. § 660(a); See Valdak Corp. v. Occupational Safety and Health

Review Comm'n, 73 F.3d 1466, 1468 (8th Cir. 1996). Substantial evidence means such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion. In this case, our review is greatly assisted by a thorough and well

reasoned decision. The issues on appeal are the same as those urged below and, for

the most part, involve the application of settled legal standards to the facts as found.

 

McKie Ford owns and operates an automobile dealership in Rapid City, South

Dakota. The dealership maintains an inventory of auto parts on two floors and uses a

vertical reciprocating conveyor, or freight elevator, to move inventory. The elevator

car is three-sided; there is no door, gate, or interlock safety device on the open side.

Although the elevator was designed for transporting freight, employees frequently used

it rather than taking the stairs. The controls for the elevator are located on the wall next

to the elevator on each floor and can be reached from inside the elevator. Once the

elevator begins moving, however, there are no controls inside the car with which to
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stop or reverse the elevator's movement. This movement created at least two shear

points: first, as the elevator floor rose past the ceiling of the first floor, and second, as

the elevator ceiling lowered past the floor of the second floor. Don Biegler, a parts

department employee who habitually rode the elevator because of his bad knees, was

killed when his head was caught in the latter shear point. 

II.

McKie first argues that the ALJ's holding that McKie violated OSHA's general

duty clause was not supported by substantial evidence. The clause, found at 29 U.S.C.

§ 654(a)(1), provides: 

Each employer shall furnish to each of his employees employment and a

place of employment which are free from recognized hazards that are

causing or are likely to cause death or serious physical harm to his

employees.

In order to prove a violation of this provision, the Secretary of Labor must show:

(1) that the employer failed to render its workplace free of a hazard which was (2)

recognized and (3) causing or likely to cause death or serious physical harm. St. Joe

Minerals Corp. v. Occupational Safety and Health Review Comm'n, 647 F.2d 840, 844

(8th Cir. 1981) (citing National Realty & Constr. Co. v. Occupational Safety and

Health Review Comm'n, 489 F.2d 1257, 1265 (D.C. Cir. 1973)). In this case, the

controversy centered on whether the hazard caused by employees riding the freight

elevator was "recognized" by McKie. A hazard is deemed recognized when the

potential danger of a condition is known to the employer, or generally known in the

industry. Id. at 845. 

The Commission held that the danger caused by the elevator's unprotected shear

points posed a hazard that was recognized by McKie personnel, and there is substantial
3Secretary of Labor v. McKie Ford, OSHRC No. 97-0185 (Feb. 19, 1998).

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evidence in the record to support this determination. In the first place, the configuration

of the elevator and the lack of safety features makes the risk plainly obvious. A

videotape of the elevator in operation was shown at the hearing and introduced into

evidence. There are pictures of the thing in the record, along with descriptions of how

it operated. The ALJ heard testimony from six current employees of McKie and three

former employees. Not surprisingly, the latter's testimony was more damaging to

McKie. It is up to the factfinder who hears the live testimony, and is able to judge the

demeanor, and ultimately the credibility, of witnesses to evaluate and credit one version

of events over another. For the reasons stated in the ALJ's decision3 we agree that

McKie violated the general duty clause.

III.

McKie next argues that the Commission erred in upholding the determination

that the violation was "willful." McKie insists that this holding relies on an erroneous

view of the law and is not supported by specific and detailed evidence. To establish

a "willful" violation, there must be evidence of an intentional disregard of, or plain

indifference to, the safety requirements of the Act. St. Joe Minerals, 647 F.2d at 846.

There must be evidence of aggravating circumstances, apart from mere lack of

diligence or adequate care, in order to satisfy the standard. In other words, simply

failing to address a recognized hazard will not support a willful violation. The point

at which conduct becomes "plainly indifferent" rather than simply negligent defies easy

formulation. "An employer need not harbor malicious motives or possess a 'specific

intent' to violate a provision of the Act in order to commit a willful violation." EnsignBickford Co. v. Occupational Safety and Health Review Comm'n, 717 F.2d 1419, 1423

(D.C. Cir. 1983).
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There is substantial evidence that McKie's conduct demonstrated plain

indifference. It had no meaningful safety program. Another employee at McKie had

been injured in a similar accident. The workers' compensation claim form, which was

filed through the company, described the injury as follows: "cut finger- six stitches on

middle finger on right hand- hand caught in freight elevator." J.A. 480 (emphasis

supplied). Despite this prior accident, which the ALJ permissibly found was known

to the company, employees kept riding the freight elevator habitually for years. The

company did nothing of substance to prevent this dangerous practice. We think

characterizing this course of conduct as plain indifference is a permissible application

of the law.

IV.

McKie's final argument is that the OSH Administration should be bound by a

written settlement agreement signed by the OSHA Area Director, Bruce Beelman, and

sent to McKie. The settlement would have characterized the violation as "serious"

rather than "willful" – a lesser offense, so to speak. A cover letter stated:

As a result of discussions . . . concerning the OSHA inspection of McKie

Ford . . . the parties have reached a tentative agreement. . . . Attached to

this letter is a written document reflecting the agreement. The document

has been signed and dated by the Area Director and requires the signature

of an authorized company official to make the agreement binding upon the

company.

J.A. 406. The agreement itself, entitled "Informal Settlement Agreement," provides that

"[t]he employer, by signing this informal settlement agreement, hereby waives its right

to contest the above citation(s)." Id. at 408. Before McKie signed the document,

Beelman contacted McKie by telephone and orally rescinded the offer. It is, of course,

well settled that a party may revoke an offer before acceptance. McKie claims,

however, that the document was merely the written reflection of an oral agreement
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reached by the parties during a settlement conference in which there was an offer and

acceptance of the terms, later embodied in the writing. McKie seeks to bind OSHA to

the terms of this agreement and stands ready to execute the document. 

The Commission held that the agreement never became binding. The

consideration of settlement agreements in OSH proceedings is governed by 29 C.F.R.

§ 2200.100. The regulations contain several procedural requirements relating to the

filing and posting of the settlement agreement in order to provide notice to affected

employees. Although nothing in the regulations specifically requires that a settlement

agreement be in writing, the Review Commission has previously held: 

We therefore conclude that a written settlement agreement is necessary

in order to effectuate the service and notice requirements of Commission

Rule 100(c). For this reason, we now hold that a settlement agreement

between the Secretary and an employer must be reduced to writing and

signed by those parties and that the Commission will not consider any

settlement agreement that is not submitted in this form. 

Secretary of Labor v. Consolidated Aluminum Corp., 9 O.S.H. Cas. (BNA) 1144, 1154

(Review Comm'n 1980). We agree with the Commission's reasoning. Until the

agreement is in a form consistent with the provisions and objectives of the regulations,

it cannot be approved. Thus, the oral agreement McKie relies on was of no effect, and

the offer, contained in the written proposal, was revoked before acceptance. We note,

in addition, that the covering letter itself described the oral agreement as "tentative."

Affirmed.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.