The limitations of a two-member safety and health panel were evident again when the commissioners split over a Georgia’s construction company’s excavation protection citation.
Acting-chairman Heather MacDougall wrote she would affirm the judge’s finding that K.M. Davis Contracting, Inc. committed a serious violation of the standard, while Commissioner Cynthia L. Attwood wrote that the evidence supports a willful violation. They agreed to vacate the petition review and allow the administrative law judge’s decision to become a final order, appealable to a federal appeals court ( Sec’y of Labor v. K.M. Davis Contracting, Inc. , OSHRC, No. 12-0643, 4/26/17 ).
MacDougall also wrote that the Occupational Safety and Health Review Commission “should seek to do better” in providing timely and speedy resolutions of workplace safety and health disputes. From the original inspection to the panel’s decision, the administrative case took nearly six years to complete.
A Davis crew was working on an underground water line project for the city of Marietta when the Occupational Safety and Health Administration conducted an inspection on Aug. 17, 2011. The agency alleged Davis committed a willful violation of 29 C.F.R. 1926.652(a)(1), for failing to protect employees working in an excavation from cave-ins.
Former administrative law judge Ken S. Welsch affirmed the violation, but found that it was serious rather than willful. He assessed a $5,000 penalty.
The Secretary of Labor petitioned the review commission over the designation. Conflicting testimony over how long a Davis employee was in the unprotected excavation was the primary issue. The OSHA compliance officer said the employee was exposed for 15 minutes, while a Davis employee testified the employee was exposed to the hazard for 15 seconds.
Attwood wrote that photographic evidence discredited the employee’s testimony that exposure lasted for 15 seconds and was consistent with the inspector’s. Moreover, the violation was willful because the foreman, who admitted that the excavation was illegal, had completed trench safety training and had more than 20 years of experience.
MacDougall wrote that although Welsch failed to make credibility findings and the record contained evidence gaps, the secretary failed to prove a willful violation.
“If the Commission’s review of this case had been handled expeditiously, the case might have been appropriately remanded to a new judge,” MacDougall wrote. “I would conclude that the Commission, as the ultimate fact finder, should decide this case based on the limited record before us and the limited credibility determinations made by the judge.”
MacDougall’s term on the review commission expired April 27, but President Donald Trump has nominated her for another. Her appointment requires Senate approval and could take months.
The U.S. Department of Labor, Office of the Solicitor, represented the secretary.
Andrew N. Gross, general counsel at HB NEXT Corp. in Lawrenceville, Ga., represented Davis.
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To contact the editor responsible for this story: Paul Connolly at PConnolly@bna.com
The decision of the Occupational Safety and Health Review Commission in Secretary of Labor v. K.M. Davis Contracting, Inc. is available at http://src.bna.com/oGr.
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