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By: Geoffrey S. Pope Published: March 2021

In OSHA Citation Contests, It's OK to Make the Secretary Prove Every Element of His Case

When a construction industry employer receives a citation from OSHA, it can be a difficult call in deciding whether or not to contest the citation (or parts of it).

The maximum penalties for OSHA violations have been increased over the past several years, and a “Repeat” or “Willful” violation in 2021 can set you back as much as $136,532.  (The maximum for “Serious” or “Other Than Serious” items is now $13,653).

If you wish to contest any part of a citation, you must deliver a written Notice of Contest to the OSHA office that issued the citation within 15 working days (Saturdays, Sundays, and federal holidays excluded). This deadline is of the hard-and-fast variety, and the running of the 15 days is not tolled if you agree to an informal conference with the  issuing office to discuss, and possibly resolve, the citation.

Because of this inflexible deadline, it’s usually a good idea to draft and forward a Notice of Contest within a couple of days of receiving the citation.  Be sure to include the Inspection Number, identify clearly which item(s) you wish to contest, and whether you are disputing each violation item itself, the classification, the penalty amount(s) and/or the necessity or any time specified for abatement.  Delivery by any pretty much any means is permissible, but we generally prefer Federal Express, or some other means that generates written proof of receipt.

A Notice of Penalty, or parts of it, can be withdrawn, and in nearly all cases, it’s advisable to make a firm decision as to whether you want to pursue matters through litigation and a trial only after having all citation items reviewed by an attorney experienced in OSHA matters.

Keep in mind, however, that (especially if there are no “Willful” or “Repeat” citation items) often your chances of prevailing in a contest proceeding will be sufficiently poor, that your best course of action may be to attempt to negotiate with OSHA some reduction in the penalties (or number of items) pay a penalty, undertake some supplemental training of your workers, accept a limited blemish on your safety record, and move on.

Employers are at some disadvantage in contest proceedings.  The Department of Labor has a cadre of specialist attorneys (paid by the taxpayers).  Few private attorneys have much experience in OSHA contests, and I have never come across one whose practice consisted in large part of defending employers in such matters.  Acts, omissions, admissions made to the OSHA inspector, and knowledge on the part of anyone with authority to tell anyone else what to do (even if such “supervisor” is a mere “lead man”) may bind your company.  And, although the Administrative Law Judges are remarkably knowledgeable and even-handed in deciding legal questions, I have perceived some tendency to treat as worthy of belief even doubtful testimony by the Compliance Officers.  There are additional ways in which the procedures tend to favor the government.

Accordingly, we often discourage clients from contesting citations, especially if the matter is likely to come down to “he said, she said” fact disputes pitting the Compliance Officer’s word against that of a business owner (or an employee who might be looking to please the employer, or cover his own wrongdoing or poor judgment).  Nonetheless, if there exists a defense — especially one based on the law, and not dependent on casting doubt on the truthfulness of government witnesses —thought should be given to contesting the citation.  That someone may have been injured (even fatally) is legally irrelevant, and the existence of a violative condition, while indispensable, is just one element, and not the whole, of the Secretary’s prima facie case.

The case of Secretary v. Shelley & Sands, Inc. is a good example of how, with persistence and good legal reasoning, even a “Repeat” violation sometimes may be overcome.

In that case, the respondent had a public contract to remove and replace the roadway deck of a bridge over an interstate highway.  The first phase of the project was to install plywood, called “false work,” beneath the bridge structure’s traffic lanes, to prevent debris from falling onto the highway.

After the false work had been installed, the contractor removed the bridge’s concrete deck.  The following day, an OSHA inspector espied two crew members preparing the bridge for pouring concrete, by installing metal brackets onto the I-beams, and then placing wooden beams into the brackets.  The crew members were not tied off while working from the false work, even though the edges were unprotected, and there were lifelines available to tie off to.

A ”Repeat” citation for a fall-protection violation was issued, contested, and affirmed following trial.  The case went up for review by the OSH Review Commission.  The applicability and violation of the standard having been conceded, the sole issue on review was whether the Secretary had proved that the respondent had notice of the unsafe condition.

The trial judge found that the Secretary had established “constructive knowledge,” based on the employer’s failure to adequately communicate to the employees that (contrary to the employees’ evident understanding) there was no exception to the fall protection mandate while standing on “false work.”  The judge also relied on an earlier, 2015 violation involving false work, the same fall protection standard, and the same foreman.

Upon review, however, the Commission found that the Secretary, and the ALJ, had placed too much reliance on the foreman’s statement to the Compliance Officer that the reason the employees had not been tied off was that “they were on false work.”  The CO and trial judge had interpreted that statement as an admission that the workers had been given to understand that the fall-protection rules somehow didn’t apply while standing on false work, but the Commission articulated three alternative interpretations it deemed plausible.  Because the Secretary had the burden to establish inadequate communication of the rule, and the Commission found the CO’s testimony concerning the foreman’s belief too vague to carry that burden, the foreman’s statement was overruled as a “smoking gun” admission.

The Commission also declined to base an “inferential leap” to a like conclusion, based on the respondent’s earlier violation, as following the 2015 violation the foreman had been  suspended without pay for seven weeks, required to meet with the company’s owner and safety director, and warned that he would be closely monitored going forward.

The Commission also found that the respondent had an energetic safety program, and that while its employees had failed to follow its fall-protection rule, the same had been adequately communicated, and effectively enforced.

The Commission reversed the trial judge’s decision, and vacated the lone citation item, demonstrating that the Commission is not unwilling to hold the Secretary to his burden to prove all of the elements of an OSHA citation.

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