Appeals From ALJ Decisions: It's a Two-Way Street
Often, if OSHA or the Solicitor’s office (the Department of Labor’s attorneys) feels that the case has dubious aspects, they may be willing to settle it at the outset, with one or more items being dropped, or downgraded in severity.
By THOMAS H. WELBY, P.E., ESQ.
If your company is cited for an OSHA violation, you may at first be indignant. You may feel that the citation is wholly unjustified, or that the violation was the result of an employee disregarding established safety rules. You have only 15 days to file a written Notice of Contest (a deadline having little flexibility) and you will have decisions to make, as to whether you want to devote considerable time and expense to fighting the citation.
Occasionally, there isn’t much of a choice, as in the situation where your company does public work, has several “Serious” citations within the past three years, and could lose eligibility for public contracts, if the current citation is affirmed. Potentially, at least if there is the slightest chance of overturning the new citation on the merits, you may have to fight it, almost without regard to the cost.
While there is some movement toward categorizing violations as “Willful,” in which violations carry significantly higher monetary penalties, the most common case is that you may face one, or several, “Serious” citation items, each with a few thousand dollars in proposed penalties, and the prospect of spending anywhere from roughly $10,000 to $100,000 in legal fees to take a contest from the Notice of Protest stage through pleadings, discovery (including, usually, one or several depositions) a trial lasting anywhere from a single day to a week or more, and a post-hearing brief.
Often, if OSHA or the Solicitor’s office (the Department of Labor’s attorneys) feels that the case has dubious aspects, they may be willing to settle it at the outset, with one or more items being dropped, or downgraded in severity. If OSHA thinks that, on the whole, you are a safety-conscious employer you can often negotiate a 20 percent or greater reduction in the monetary penalties as proposed.
If you are inclined at all to go through litigation, however, for several good reasons you should work with experienced and knowledgeable OSHA counsel to analyze carefully the factual and the legal merits of each citation item. In rough terms, “factual” in this context means exactly what happened that is alleged to have constituted the citation, and any analysis has to focus not on what you feel to be the truth, or hope to be the truth, but on what evidence is likely to be available to both sides. As I have written in this column previously, as the employer, you are at some disadvantage regarding the factual component of any OSHA trial, because: statements by even low-level, non-managerial employees may come into evidence as “admissions,” hearsay is admissible in OSHA proceedings, whistleblower protections permit the OSHA Compliance Officer to get in statements claimed to have been made even by unidentified employees, and the Administrative Law Judge, not exactly biased but nevertheless a Department of Labor employee, will seldom be eager to find that the Compliance Officer may have told less than the truth, the whole truth, and nothing but the truth.
What a legal analysis of the citation items must include, among other things, is whether the facts, as alleged by the Secretary and subject to the necessity of proving them by a preponderance of the evidence, match the requisite elements of the citation charged, and whether there are facts which, if proved, would establish an affirmative defense.
In many instances, if a legally oriented defense has merit, it may give you a better shot at defeating the citation than a strictly factbased citation would be. First, as we all know facts are slippery things, and proof of facts more uncertain still. Your key witness could move to Alaska on the eve of trial, or change his story while testifying. Second, the ALJs are mostly knowledgeable and usually scrupulously fair on purely legal issues. Third, while an appeal may not be cost-effective, it’s nice to know that an appeal is available, if you want one. Appeals on legal issues are addressed de novo, which means that the OSH Review Commission or U.S. Court of Appeals will make its own determination of those issues, without paying any deference to the ALJ’s legal conclusions. Factual findings, on the other hand, are considered on appeal on a “clearly erroneous” standard. The appellate tribunal will rarely go against the ALJ’s findings, especially to the extent they are based on his or her assessment of the truthfulness of witnesses testifying at trial.
While perhaps “legal” defenses are played out on a more truly level playing field than “factual” ones, there’s a downside, too, which is that the Secretary, as well as the employer, can and probably will take up on appeal any legal determination that the Solicitor believes was erroneously decided by the ALJ, and could establish a troubling legal precedent. It can happen, therefore, that an employer who has (at considerable expense) won at trial faces an appeal by an adversary whose legal fees are borne by the taxpayers, which may lead to a reversal, a new trial, or the reinstatement and affirmation of the citation items and accompanying penalties.
Two recent cases by the OSH Review Commission underscore that ALJ decisions favoring the employer can be reversed on the facts, the law, or both. In Secretary v. Mosser Construction, Inc., the ALJ, although affirming a citation for a failure to protect employees in an excavation be protected from cave-ins by a protective system, shoring, or benching, reduced the citation from “Serious” to “Other Than Serious,” and the penalty from $4,500 to $500, finding that, had an accident occurred, it would not have posed a “substantial probability” that “death or serious physical harm” would result. This appears to have been a result largely based on the trial testimony of the employer’s expert, who stated that, due to the soil characteristics at the site, it would have been subject only to a “slow raveling” of surface material, and not a catastrophic failure. The ALJ also found that employee exposure was limited to two hours, and that the excavation’s benching, although inadequate per regulations, reduced the probability of a cave-in, thus justifying the reduction in the penalty.
The OSH Review Commission in Mosser determined that the employer’s expert’s testimony did not provide an adequate link between the soil characteristics, and his opinion that the excavation was safe. This was so particularly as he failed to account for testimony to the contrary, by the employer’s jobsite “competent person,” that the soil was granular, Type B soil, requiring greater protective measures than those taken by the employer, as would be appropriate for cohesive, Type A soil.
In Secretary v. Compass Environmental, Inc., an employee holding a grease line attached to an excavator was electrocuted when the excavator came into contact with a 7,200-volt overhead transmission line. The ALJ vacated one of two “Serious” citation items (with a $6,300 penalty) alleging a failure to properly instruct the excavator operator and decedent in the recognition and avoidance of the high-voltage transmission and distribution line. In what we would characterize as a mixed question of fact and of law, the OSH Review Commission determined that the facts, as proved by the Secretary, did establish that a prudent employer ought to have anticipated the decedent’s exposure to the power lines, and recognized the potential electrocution hazard. Indeed, the employer had recognized the danger, as it had provided training on the subject to the excavator operator, but not to the decedent.
The moral here is that emotions must be laid aside, and an assessment made of your prospects not only of prevailing at trial, but of winning an appeal against a better-financed adversary, namely the government. These prospects must be weighed carefully against what it truly is that your company has at stake in the matter. The early advice of seasoned OSHA counsel in making that evaluation is strongly recommended.
About the author: Mr. Welby is a professional engineer, as well as an attorney and 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, assisted in the preparation of this article. 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.
This is part of the July 1, 2010 online edition of Construction News.
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