Allied Constr. v. Labor Comm'n Appeals Bd.

• Decision Date: 12 September 2013
• Docket Number: No. 20120729–CA.,20120729–CA.
• Citation: 310 P.3d 1230,743 Utah Adv. Rep. 5
• Court: Utah Court of Appeals
• Parties: ALLIED CONSTRUCTION & DEVELOPMENT, INC., Petitioner, v. LABOR COMMISSION APPEALS BOARD, Respondent.

310 P.3d 1230

743 Utah Adv. Rep. 5

ALLIED CONSTRUCTION & DEVELOPMENT, INC., Petitioner,

v.LABOR COMMISSION APPEALS BOARD, Respondent.

No. 20120729–CA.

Court of Appeals of Utah.

Sept. 12, 2013.

Darrel J. Bostwick and D. Ryan Robison, for Petitioner.

John E. Swallow and Brent A. Burnett, for Respondent.

Judge JAMES Z. DAVIS authored this Memorandum Decision, in which Judges GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

Memorandum Decision

DAVIS, Judge:

¶ 1 Allied Construction & Development, Inc. (Allied) seeks review of the Utah Labor Commission Appeals Board's decision upholding the administrative law judge's (ALJ) determination that Allied exposed its employees to a dangerous work condition in violation of the Occupational Safety and Health Act (OSHA). See generally 29 C.F.R. § 1926 (2011) (Occupational Safety and Health Act); Utah Admin. Code R614–1–4(B)(1) (incorporating parts of OSHA's chapter titled “Safety and Health Regulations for Construction” into the Utah Labor Commission's Occupational Safety and Health regulations). We set aside the Board's decision.

¶ 2 Allied argues that the ALJ's determination, and the Board's approval thereof, is not supported by “the great weight of the evidence presented.” An “agency action [that] is based upon a determination of fact, made or implied by the agency, [must be] supported by substantial evidence when viewed in light of the whole record before the court.” Utah Code Ann. § 63G–4–403(4)(g) (LexisNexis 2011); see also Murray v. Labor Comm'n, 2013 UT 38, ¶ 19, 308 P.3d 461 (“While [section 63G–4–403(4)(g) of the Utah Code] does not explicitly require a certain standard of review, it characterizes the agency action in such a way that implies a ‘substantial evidence’ standard. This is because we can grant relief under this provision only after reviewing the agency's determination of fact for a lack of substantial evidence.”). ¹ In other words, we will not overturn an agency's factual findings if they are “based on substantial evidence, even if another conclusion from the evidence is permissible.” Hurley v. Board of Review of the Indus. Comm'n, 767 P.2d 524, 526–27 (Utah 1988). Additionally, the party challenging factual findings must “properly present the record, by marshaling all of the evidence supporting the findings and showing that, despite that evidence and all reasonable inferences that can be drawn therefrom, the findings are not supported by substantial evidence.” Bhatia v. Department of Emp't Sec., 834 P.2d 574, 579 (Utah Ct.App.1992) (citation and internal quotation marks omitted). Given the dearth of evidence in this case, we determine that Allied has satisfied its marshaling burden.

¶ 3 The outcome of this case turns on “[t]he mute ‘testimony’ of a shovel.” The Utah Occupational Safety and Health Division of the Labor Commission (UOSH), which issued the citation against Allied, interpreted, and the ALJ agreed, that a shovel left leaning upright against the exposed dirt wall of a trench dug by Allied was indicative of Allied's violation of the OSHA regulation prohibiting a trench to be excavated lower than two feet below the trench support system. See29 C.F.R. § 1926.652(e)(2)(i). A UOSH compliance officer was dispatched to Allied's work site after receiving “a call from a concerned citizen that there were people working in a trench and that they weren't protected in the trench.” No more information was provided as to the identity of the caller, the caller's vantage point, what the caller specifically observed, or when. At the work site, the compliance officer observed a shovel of ordinary size leaning against the exposed dirt wall of the trench and noticed that the trench's support system panel was raised above the height of the shovel, approximately eight feet above the trench floor. Though the compliance officer admitted that he did not see anyone in the trench during his site visit, he concluded that an employee must have been in the trench after the panel was raised to explain the presence of the upright shovel. Otherwise, the shovel must have been leaning against the trench panel before the panel was raised and remained upright while the panel was lifted, which the officer considered less likely.

¶ 4 However, both the compliance officer and the Allied supervisor in charge of the trench project testified that it was entirely possible that the shovel remained upright after the panel was lifted from behind it and simply shifted from leaning against the panel to leaning against the trench's dirt wall. The supervisor acknowledged that he did not observe whether the panel was raised from behind the shovel or whether an employee placed the shovel in the trench before or after the panel was lifted and testified that he “would guarantee that [the panel] was not over two feet off the bottom ... when people were down in there working.”

¶ 5 The supervisor further explained that because the trench project required Allied to acquire a “slide rail” shoring system that cost upwards of $300,000, its employees are “pretty careful how they pull [the panels] up ... [and] how they treat this [safety system].” Indeed, OSHA specifically requires that trench support panels be removed gently. See29 C.F.R. § 1926.652(e)(1)(v) ( “Members [of a trench support system] shall be [removed] slowly so as to note any indication of possible failure of the remaining members of the structure or possible cave-in of the sides of the excavation.”). Likewise, the officer testified that he had not seen a slide rail system before his visit to Allied's work site and that he was not familiar with how that particular system worked at the time of his visit. Nor was he apprised of the nature of the project or that it required compliance with exacting specifications that routinely involved the shoring panels being raised to adjust the trench's trajectory.

¶ 6 Notwithstanding this...