Recent decisions by the OSH Review Commission and the Eleventh Circuit Court of Appeals again bring up an issue that has been in dispute from time to time since the 1970s, but has eluded a single, nationwide resolution.
The issue is whether conduct that violates OSHA, when performed by a supervisor, of itself establishes the element of employer knowledge of the violation.
The issue is of interest on the merits, but looking at how the OSH Act procedurally provides for appeals from Administrative Law Judge (i.e., trial-level) decisions is somewhat exotic, and carries with it an important lesson for anyone contemplating such an appeal.
There are thirteen federal Circuit Courts of Appeals, of which one (the Court of Appeals for the Federal Circuit) hears appeals in cases based on certain statutes, not including OSHA. The remaining twelve circuits are geographic, and the Courts of Appeals’ primary business is to hear appeals from decisions of U.S. District Courts, in the states comprising the circuit. New York and Connecticut are parts of the Second Circuit; New Jersey is in the Third Circuit.
The U.S. District Courts do not conduct trials, however, where the Secretary of Labor cites an employer for violations of the OSH Act. Those trials are before Administrative Law Judges (ALJs), employed by the OSH Review Commission. An appeal from an ALJ decision can be initiated by the three-member OSH Review Commission, on its own motion. If either of the employer or the Secretary wishes to take an appeal, a petition for discretionary review must be filed. If the OSH Review Commission accepts and decides the appeal, a further appeal will be to a U.S. Court of Appeals. If the OSH Review Commission declines to hear the appeal, the ALJ decision can then be appealed directly to a U.S. Court of Appeals.
Generally, in the federal system Court of Appeals decisions are binding precedent only within the Circuit in which the court in question sits. Legal issues may be decided one way in one or more circuits, and directly to the contrary in others. The desire to resolve differences among the Circuit Courts of Appeals is a factor considered by the U.S. Supreme Court in deciding whether to accept a case for further review by writ of certiorari.
Because of the economics — OSHA citations usually involve only modest monetary penalties — appeals in OSHA matters are relatively infrequent. Because many appeals are decided by the OSH Review Commission, and not by a Court of Appeals, Commission decisions constitute a major body of legal precedent. Both the ALJs and the Commission, however, in addressing purely legal issues under OSHA, strive to apply the law of the Circuit to which they would expect any further appeal to go. If that Circuit has not spoken on the issue in question, the Commission will apply its own precedents.
An OSHA violation has four necessary elements, on which the Secretary has the burden of proof: the applicability of the standard; nonconformance with the standard; employee exposure; and knowledge, actual or constructive, on the part of the employer. It is settled law that, if a supervisor observes a violation by a rank-and-file employee, the supervisor’s knowledge of the infraction will be imputed to the employer, satisfying the “knowledge” element.
If the Secretary succeeds in making out a prima facie case, the employer may assert the affirmative defense of “unpreventable employee misconduct,” but, by doing so, takes on the burden of proof to show, among other things, the sufficiency of its safety program.
Secretary v. Piedmont Mechanical, Inc. arose on a job site in Georgia (part of the Eleventh Circuit). In that case, the employer was using a carry deck crane with a 40-foot boom to install pipe in a trench. When the operator swung the boom to bring a pipe over the trench, the boom contacted a power line, and an employee in the trench was badly burned. A multi-item citation was issued. At trial, one item was dismissed, and another was downgraded from “Willful” to “Serious,” but the Secretary otherwise prevailed.
The Secretary appealed from the downgrading of the “Willful” item and, while that appeal was pending, the Eleventh Circuit Court of Appeals issued a decision in ComTran Group, Inc. v. U.S. Dept. of Labor. In ComTran, the Eleventh Circuit joined the Third, Fourth, Fifth, and Tenth Circuits, in holding that a supervisor’s knowledge of his own misconduct will not be imputed to the employer, wherefore the Secretary does not carry his burden, and establish a prima facie case with respect to employer knowledge, merely by demonstrating that a supervisor engaged in misconduct. (The Second Circuit does not appear to have taken a firm position on this question, but has described the rule just described as one “grounded in fairness”). Under the rule adopted in ComTran, knowledge must be established by showing the employer’s actual knowledge, or by constructive knowledge, based on the fact that the employer could, under the circumstances of the case, have foreseen the supervisor’s unsafe conduct.
The OSH Review Commission In Piedmont Mechanical remanded for further proceedings, in light of ComTran.
If you have taken an OSHA citation to trial, and lost, it matters greatly whether the basis for the decision was purely legal, or would have come out the same way, based on factual determinations by the ALJ. Because the cost-to-benefit analysis of appealing OSHA citations is usually unfavorable to begin with, you should know that the standard of review of factual determinations by the ALJ is whether the same were supported by “substantial evidence,” a highly deferential standard. Particular deference is given to the ALJ’s determinations of which witnesses testified truthfully, and which ones testified unreliably.
In short, if you’re contemplating a possible appeal to the OSH Review Commission, or the Court of Appeals, if the issues are largely fact-based, while I would “never say ‘never,’” your appellate prospects are, in all likelihood, poor.
Legal issues are reviewed independently, wherefore an appeal presenting only legal issues may deserve a closer look.
An important “practice pointer” in this respect is that you are not bound (as you would be in a commercial lawsuit decided in federal district court) to the Court of Appeals for the Circuit in which the alleged infraction occurred, or in which the ALJ conducted the trial.
An appeal from a final OSH Review Commission Order can be taken to any of as many as three Circuit Courts of Appeals: (1) the one in which the alleged infraction occurred; (2) the one in which the employer’s primary place of business is located; and (3) the Court of Appeals for the District of Columbia Circuit.
If you get an unfavorable outcome after the OSH Review Commission hears your appeal, or if it declines to grant a discretionary review of an unfavorable ALJ decision (which makes the latter the equivalent of a final order of the Commission) and you have any thought of an appeal to a Court of Appeals, you need to act promptly. Your attorney needs to evaluate the strength of all legal issues presented, and in doing so to identify which Circuits would be permissible ones for your appeal, and to research whether the law of one Circuit or another to which the appeal might be taken is more favorable.
Thomas H. Welby is the managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Geoffrey S. Pope, counsel to the firm, collaborates in the preparation of this series. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.