By: Thomas H. Welby Published: March 2017

OSH Review Commission Reverses ALJ, Finds Employee Exposure in Partially-Shored Trench

You probably know that if the employer contests an OSHA citation, the trial will be before an Administrative Law Judge (ALJ).  (Note that, throughout this article, we are discussing proceedings in cases governed by federal OSHA, not “Little OSHAs” which exist in some states).

What you may not know is that once the trial of a citation is completed, and the ALJ renders a decision, things sometimes get complicated.  In civil litigation in New York State courts, generally there is one, and infrequently two, levels of appeal “as of right,” in which the merits will be addressed without the necessity of first asking the court’s permission.  And, in both New York and federal practice, the lawyers will virtually always know, from the inception of proceedings in the trial court, to which tribunal(s) any appeal(s) from the trial-level outcome will go, and there is rarely, if indeed ever, more than one possibility.  If you have a lawsuit in New York State Supreme Court, the first appeal will be to the Appellate Division in whichever of the four Departments the trial court was located.  If your suit is in a United States District Court, the appeal goes to the Court of Appeals in the geographical Circuit in which the District Court is located.

Uncertainty as to the identity of a potential appellate tribunal is unsettling, because for multiple purposes (including, among other things, the advisability of pursuing settlement, and how tough a settlement posture to assume) it’s critical to know which jurisdiction’s judge-made law will be applied.

Appellate courts “make law” in the form of judicial precedents, but each system has its own rules, regarding which appellate courts’ precedential decisions must be followed.  In New York practice, all lower courts must defer to the Court of Appeals (just as, in federal practice, decisions of the United States Supreme Court trump all lower court decisions).

However, if of the four New York Appellate Divisions only, say, the Second Department (and not the New York Court of Appeals) has decided a particular issue, a trial court, sitting in the First Department, must follow the Second Department precedent (although the Appellate Division, First Department or, of course, the  Court of Appeals, can overrule it).

In federal practice, while trial courts often choose to follow precedents from Circuit Courts, where their own Circuit and the Supreme Court have not spoken to the issue (especially if there exists a clear “majority rule”) such precedents are generally mere “persuasive authority,” rather than “governing precedent,” leaving the trial judge no choice but to adhere to it.

Our reason for this lesson in jurisprudence is to highlight how complicated, even exotic, OSHA appeals can be.  A party aggrieved by an ALJ’s final determination of a citation contest can petition the three-member OSH Review Commission for review.  Such review is discretionary (in OSHA practice, there are no appeals “as of right”).  One peculiarity is that, while neither the New York Appellate Division nor the U.S. Court of Appeals can decide a matter on which neither of the litigants has sought its intervention, the Commission can do so whenever it pleases, at the behest of even a single member.

Another unusual feature is that any of as many as three U.S. Courts of Appeals have both concurrent jurisdiction to review an ALJ’s decision, and the authority to review a final determination by the Commission.  Such review is always discretionary, and will seldom be granted, if the party requesting it has failed to first request review by the OSH Commission.

If you are unhappy with a final ALJ determination — and keeping in mind that (as in most civil litigation) appeals addressed to strictly legal issues enjoy greater prospects of success than those based upon findings of fact — your attorney must carefully examine the decision, identifying the legal issues that might affect the outcome, and (prior to picking a tribunal) the precedents in the Commission’s own, copious body of precedents, plus relevant precedents in the U.S. Courts of Appeals for the Circuits (1) in which the violation allegedly occurred; (2) in which the respondent has its principal office; and (3) for the District of Columbia Circuit.  (Cases from the U.S. Supreme Court, although rare, must also be checked for.)

If relevant precedents vary, as among the Commission and the several Courts of Appeals that have jurisdiction, this rare opportunity for “forum-shopping” requires that counsel pick a suitable forum only after careful research, in order to select the friendliest body of precedent.

This month’s case illustrates the Commission reviewing, and reversing, an ALJ decision that had vacated a single-item citation.  In Secretary v. Briones Utility Company, the OSHA compliance officer had seen the respondent’s employee, briefly, in a trench 10 feet long, 3 feet wide, and 7 feet deep in Type “C” (the most unstable type) of soil.  The trench was partially shored, with aluminum hydraulic shoring, at one end.  Shoring installed in the trench included two hydraulic cylinders (pistons), one above the other, that spanned the width of the trench, and pressed against vertical rails on either side.  Sandwiched between the rails and trench walls were 4-foot-wide, 8-foot-tall panels.  Measured from the center line of the cylinders, the distance to the closer end of the trench was 2 feet, and the distance to the farther end was 8 feet.  The employee was seen to be barely inside the zone within the trench in which the walls were covered by the panels, and — albeit at the direction of the Compliance Officer — he ventured briefly into what appeared to be the “unprotected zone” within the trench, in order to retrieve a ladder.

Of the elements necessary to establish the violation, only employee exposure was in controversy.  At the trial before the ALJ, while it was beyond dispute that, at the moment of the CO’s seeing the lone employee in the trench, a portion of the trench was without protection (and that the required “adequate protective system” was not completely installed) the respondent maintained that its employee was in the process of preparing the trench for the installation of an additional shore.

The ALJ found the employer’s argument convincing, as well as its further argument that the employee’s position when photographed, on the borderline of where the shoring was located, with his upper torso leaning slightly outside of the fin form, did not constitute employee exposure, especially given the CO’s concession that the true zone of protection extended a short distance (“a good two to three feet”) beyond the edge of the shore.

The ALJ vacated the citation, finding essentially that, given the lack of a definitive understanding of the protective area of the existing shoring, the Secretary had not established the violation, and that the key to the adequacy of any shoring system was whether it protects employees from a cave-in.  The fact that the entire trench was not shored, the ALJ found, did not mean that it was a violation that an employee stood in the area protected by the single shore.

As for the fact that no barrier prevented the employee from accessing the unprotected portion of the trench, the ALJ reasoned that the employee had available an egress that did not require him to pass through the unprotected zone; that clearly the respondent had (and its employees obeyed) a policy of not working in a trench without proper protection, and that the employee’s presence was necessary and calculated to facilitate the installation of additional shoring.

The Commission reversed the ALJ, affirmed the citation, and imposed a modest $1,000 penalty.  Its essential findings were twofold.  First, the Commission found that exposure had been established, in light of the predictability that the employee could stray into the “zone of danger.”   As for the respondent’s argument based on the necessity of the employee’s presence to prep the trench for the installation of an additional shore, the Commission found this to be an affirmative defense, on which the employer had the burden of proof; and that contrary to the company’s claim, the record did not show that the employee’s presence was truly necessary for the additional shore to be installed.

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