16‐4128‐ag Triumph Constr. Corp. v. Secʹy of Labor

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2017

(Argued: February 5, 2018 Decided: February 14, 2018) (Published Opinion Issued: March 14, 2018)

Docket No. 16‐4128‐ag

TRIUMPH CONSTRUCTION CORPORATION,

Petitioner‐Appellant,

v.

SECRETARY OF LABOR,

Respondent‐Appellee.

PETITION FOR REVIEW FROM THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Before: WALKER, LYNCH, and CHIN, Circuit Judges.

Petition for review of a final order of the Occupational Safety and

Health Review Commission affirming a citation issued to a construction company for a repeat violation of an excavation standard and assessing a penalty

of $25,000.

PETITION DENIED.

JASON R. FINKELSTEIN (Brian L. Gardner, on the brief), Cole Schotz, P.C., New York, New York, for Petitioner‐Appellant.

A. SCOTT HECKER (Nicholas C. Geale, Acting Solicitor of Labor; Ann S. Rosenthal, Associate Solicitor of Labor; Heather R. Phillips, Counsel for Appellate Litigation, on the brief), United States Department of Labor, Washington, D.C., for Respondent‐ Appellee.

PER CURIAM:

In this case, petitioner Triumph Construction Corporation

(ʺTriumphʺ) petitions for review of a September 7, 2016, decision and order of the

administrative law judge (the ʺALJʺ), which subsequently became a final order of

the Occupational Safety and Health Review Commission (the ʺCommissionʺ),

affirming a citation issued to Triumph by the Occupational Safety and Health

Administration (ʺOSHAʺ) for a repeat violation of an excavation standard and

assessing a penalty of $25,000. Triumph Constr. Corp.,

(No.

15‐0634, 2016),

. Triumph contends that the Commission

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improperly shifted the burden of proof to Triumph and improperly classified the

violation as a repeat violation. For the reasons set forth below, we disagree and

deny Triumphʹs petition for review.1

BACKGROUND

On August 22, 2014, an employee of Triumph, the general contractor

for a public construction project to replace certain water mains, was injured in a

cave‐in at an excavation site in lower Manhattan. An OSHA officer inspected the

excavation site that afternoon. On February 13, 2015, OSHA issued Triumph a

citation for a repeat violation of

(a)(1), which provides in

relevant part:

Each employee in an excavation shall be protected from cave‐ins by an adequate protective system designed in accordance with . . . this section except when:

(i) Excavations are made entirely in stable rock; or

(ii) Excavations are less than 5 feet (1.52m) in depth and examination of the ground by a competent person provides no indication of a potential cave‐in.

1 We grant the Secretary of Laborʹs motion for publication of our February 14, 2018 summary order in this case. Triumph Constr. Corp. v. Secʹy of Labor, No. 16‐4128‐ag,

(2d Cir. Feb. 14, 2018). ‐ 3 ‐

The citation was classified as a repeat violation based on two previous citations

issued to Triumph for violating the same excavation standard: the first in 2009

and the second in 2011.

Triumph contested the February 13, 2015, citation, and a formal

evidentiary hearing was conducted before an ALJ (Coleman, A.L.J.) on January 5,

6, and 21, 2016. In a September 7, 2016, decision and order, the ALJ affirmed the

citation for a repeat violation, concluding that a preponderance of the evidence

established that Triumph violated the excavation standard and that the violation

was a repeat one.2 Because the Commission did not grant discretionary review,

the decision and order became a final order of the Commission on October 20,

2016. Triumph petitions for review.

DISCUSSION

We set aside an order by the Commission if it is ʺarbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with the law.ʺ

(2)(A); see Solis v. Loretto‐Oswego Residential Health Care Facility,

(2d Cir. 2012). We uphold factual findings if they are ʺsupported by

2 The decision and order also vacated a second citation issued to Triumph by OSHA for a serious violation of

(j)(1). The second citation is not at issue in this appeal. ‐ 4 ‐

substantial evidence on the record considered as a whole.ʺ

(a); see

Solis,

. We review legal conclusions de novo, deferring as

appropriate to the Secretaryʹs reasonable interpretation of the Occupational

Health and Safety Act (the ʺActʺ). Solis,

.

I. Burden of Proof

First, Triumph contends that the Commission improperly shifted the

burden of proof to Triumph by drawing an adverse inference from Triumphʹs

failure to produce a particular witness ‐‐ site foreman Augustin Formoso ‐‐

during the hearing.

A. Applicable Law

Although the Secretary bears the burden of proving an OSHA

violation by a preponderance of the evidence, see New York State Elec. & Gas Corp.

v. Secʹy of Labor,

(2d Cir. 1996), the ʺparty claiming the benefit

of . . . an exception must demonstrate its applicability,ʺ New York Univ. Med. Ctr.

v. N.L.R.B.,

, 413 (2d Cir. 1998). The excavation standard at

(a)(1) ʺapplies to any excavation, unless the employer shows that the

excavation meets one of two exceptions.ʺ Bardav, Inc.,

(No.

10‐1055, 2014),

, at *4 (emphasis original). One of the two

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exceptions is relevant here: the exception for excavations less than five feet deep.

(a)(1)(ii).

B. Application

We conclude that the ALJ did not impermissibly shift the burden of

proof. First, the ALJ properly placed the burden of proof on Triumph to

demonstrate that its site fell within the exception for excavations less than five

feet deep under

(a)(1)(ii). It was in the context of Triumphʹs

argument that ʺthe area in the excavation where [the injured worker] was

working was shallower than five feet,ʺ Sp. App. 26, that the ALJ considered

Triumphʹs failure to present Formosoʹs testimony. The ALJ relied on the missing

testimony as one of several factors to evaluate the credibility of one of Triumphʹs

testifying witnesses.3 Second, the depth of the excavation was not an issue that

turned on which party bore the burden of proof. The great weight of evidence

established that the excavation was more than five feet deep, including

(1) empirical measurements taken by OSHA recording depths of 64, 68, and 70

3 The ALJ properly placed the burden of proof on the Secretary to establish that Triumph violated

(a)(1) by demonstrating ʺby a preponderance of the evidence that: (1) the cited standard applies; (2) the terms of the standard were violated; (3) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition; and (4) one or more employees had access to the cited condition.ʺ Sp. App. 15; see New York State Elec. & Gas Corp.,

. ‐ 6 ‐

inches at the site, (2) the testimony of the injured worker, and (3) the testimony of

the cityʹs inspector.

II. Look Back Period

Next, Triumph notes that the Commission has a policy of using a

three‐year look back period to determine a repeat violation, and argues that here

the Commission failed to provide a reasoned explanation for relying on previous

violations more than three years old.

A. Applicable Law

The Act authorizes an enhanced civil penalty against any employer

who ʺrepeatedly violates . . . any standardʺ promulgated pursuant to the Act.

(a).4 Neither the Act nor OSHAʹs implementing regulations

prescribe any temporal limits for determining whether a violation is repeated. In

arguing that the Commission arbitrarily departed from its own policy, Triumph

contends that the OSHA Field Operations Manual (the ʺManualʺ), dated April 22,

4

(a) provides as follows:

Any employer who willfully or repeatedly violates the requirements of section 654 of this title, any standard, rule, or order promulgated pursuant to section 655 of this title, or regulations prescribed pursuant to this chapter may be assessed a civil penalty of not more than $70,000 for each violation, but not less than $5,000 for each willful violation. ‐ 7 ‐

2011, was in effect at the time of the February 13, 2015, citation and dictates a

three‐year look back period for assessing repeat violations ‐‐ not the five‐year

period relied on by the Commission.5 The relevant language in the Manual

provides as follows:

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.

Joint App. 653.

B. Application

We conclude that the Commission did not abuse its discretion by

relying on previous violations more than three years old, because neither the

Manual nor the Commissionʹs precedent limits OSHA to a three‐year look back

period. The Manual explicitly notes that ʺthere are no statutory limitations on

5 The Commission increased its look back period from three years to five years, but the parties dispute whether the change took place in October 2010 or in October 2015 ‐‐ in other words, before or after Triumphʹs February 13, 2015, citation. We need not resolve that dispute, however, because we uphold the Commissionʹs decision even assuming, as Triumph argues, that the three‐year period applies. ‐ 8 ‐

the length of time that a prior citation was issued as a basis for a repeated

violationʺ and describes a policy that ʺshall generally be followed.ʺ Joint App. 653

(emphasis added). The Manual is ʺonly a guide for OSHA personnel to promote

efficiency and uniformity, [is] not binding on OSHA or the Commission, and

[does] not create any substantive rights for employers.ʺ Hackensack Steel Corp.,

(No. 97‐0755, 2003),

, at *7. Moreover, the

Commissionʹs precedents establish that ʺthe time between violations does not

bear on whether a violation is repeated.ʺ Hubbard Constr. Co.,

(No. 11‐3022, 2013),

, at *11 (citation and internal quotation

marks omitted); accord J.C. Stucco & Stone, Inc.,

(Nos. 14‐1558

and 15‐0342, 2016),

, at *19 & n.53 (upholding a repeat violation

based on a previous violation more than three years old, and noting that the

three‐year limit for repeated violations in the Manual ʺis not binding on the

Commissionʺ); Active Oil Serv., Inc.,

(No. 00‐0553, 2005),

, at *6. Finally, this was Triumphʹs third violation in six years.

CONCLUSION

Triumphʹs petition for review is DENIED.

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