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$25K OSHA repeat violation penalty upheld after worker injured in excavation cave-in

By Kathleen Kapusta, J.D.

Denying a construction company’s petition for review of a final order of the Occupational Safety and Health Review Commission, which affirmed a citation for a repeat violation of an excavation standard and assessed a $25,000 penalty, the Second Circuit found the Commission did not improperly shift the burden of proof, nor did it improperly classify the violation as a repeat violation (Triumph Construction Corp. v. Secretary of Labor, March 14, 2018, per curiam).

In August 2014, an employee of the construction company, which was the general contractor for a public construction project, was injured in a cave-in at an excavation site. OSHA inspected the site that same day and several months later issued the company a citation for a repeat violation of an excavation standard requiring that an employee be protected from cave-ins by an adequate protective system. The standard provided for two exceptions: when excavations are made entirely in stable rock,or when they are less than five feet in depth and an examination provides no indication a potential cave-in.

Repeat violation. Because the company had two previous citations for violating the same excavation standard—one in 2009 and one in 2011—the citation was classified as a repeat violation.

Although the company contested the citation, an administrative law judge found that a preponderance of the evidence established it had violated the standard and the violation was a repeat one. The Commission did not grant discretionary review and thus the decision and order became final.

Burden of proof. In petitioning for review, the company argued that the Commission improperly shifted the burden of proof to it by drawing an adverse inference from its failure to produce the site foreman as a witness during the hearing. The Secretary bears the burden of proving an OSHA violation by a preponderance of the evidence, the appeals court observed, but the party claiming the benefit of an exception must demonstrate its applicability.

Here, because the employer claimed that “the area in the excavation where [the injured worker] was working was shallower than five feet,” the ALJ properly placed the burden of proof on Triumph to show its site fell within the applicable exception. The ALJ relied on the missing testimony as one of several factors to evaluate the credibility of one of Triumph’s testifying witnesses. Nor was the depth of the excavation an issue that turned on which party bore the burden of proof, said the court, noting that empirical measurements taken by OHSA, as well as testimony by the injured worker and a city inspector, established that the excavation was more than five feet deep. Thus, said the court, the ALJ did not improperly shift the burden of proof.

Look-back period. The company next argued that the Commission has a policy of using a three-year look-back period to determine a repeat violation, but here it failed to provide a reasoned explanation for relying on previous violations that were more than three years old. However, the court pointed out, neither OSHA nor its implementing regulations “prescribe any temporal limits for determining whether a violation is repeated.” While the company cited the applicable OSHA Field Operations Manual, which provided that “Although there are no statutory limitations on the length of time that a prior citation was issued as a basis for a repeated violation, the following policy shall generally be followed. A citation will be issued as a repeated violation if … [t]he citation is issued within 3 years of the final order date of the previous citation or within 3 years of the final abatement date, whichever is later.”

But the Manual is only a guide for OHSA personnel, the court explained, noting that it is not binding on OSHA or the Commission and does not create any substantive rights for employers. Moreover, it explicitly notes that “there are no statutory limitations on the length of time that a prior citation was issued as a basis for a repeated violation.” Observing that this was Triumph’s third violation in six years, the court found the Commission did not did not abuse its discretion by relying on previous violations more than three years old.