Denucci Constructors, L.L.C. v. Occupational Safety & Health Review Comm'n
| Decision Date | 07 July 2021 |
| Docket Number | No. 20-60710,20-60710 |
| Parties | DENUCCI CONSTRUCTORS, L.L.C., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; MARTIN WALSH, SECRETARY, U.S. DEPARTMENT OF LABOR, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Petition for Review of an Order of the Occupational Safety and Health Review Commission
Before OWEN, Chief Judge, and SMITH and GRAVES, Circuit Judges.
*
DeNucci Constructors, L.L.C. (DeNucci) petitions this court for review of a final order of the Occupational Safety and Health Review Commission (OSHRC) affirming the Occupational Safety and Health Administration's (OSHA's) issuance of a citation and Notification of Penalty(Citation) to DeNucci. Because the OSHRC administrative law judge's (ALJ's) factual findings are supported by substantial evidence, and the ALJ's implicit credibility determinations are not contradicted by incontrovertible documentary evidence or physical fact, we deny DeNucci's petition for review.
DeNucci constructs commercial buildings, as well as excavates and installs utilities. On July 30, 2018, DeNucci performed trenching and excavation work at 500 Sabine Street in Austin, Texas. Under the supervision of General Superintendent David Lucas and Foreman Jose Martin Morales, the crew began excavating around 7:15 a.m., with Miguel Hernandez operating the excavator. Hernandez's task was to dig and slope a trench that other crew members could enter to locate existing conduits and pipes for DeNucci to replace. At approximately 9:30 or 10:00 a.m., Hernandez detected sand or gravel, indicating pipes were near, and stopped excavating. Soon after, two laborers/pipe layers, Ramiro Vasquez Paz (Paz) and Daniel Ponce (Ponce), entered the trench to hand-shovel the sand and gravel to locate existing conduits and pipes.
At approximately 10:15 or 10:20 a.m., OSHA Compliance Assistance Specialist Joann Natarajan (CAS Natarajan) happened to walk by the worksite on her way to give a presentation at a nearby hotel. She observed two employees, Paz and Ponce, digging around exposed pipes in the bottom of the trench. Based on her nineteen years of experience and her visual observations of the trench's depth, angle, and slope "for about 30 seconds" from fifteen or twenty feet away, CAS Natarajan determined the trench was unsafe. She immediately called and notified OSHA regarding what she had observed but did not take any photographs or measurements. In response, OSHA sent Compliance Safety and Health Officer Darren Beck (CSHOBeck) to the worksite. In the meantime, after the conduits and pipes were exposed by hand-shoveling, Hernandez resumed excavation operations.
CSHO Beck arrived at the worksite at approximately 11:40 a.m. to begin inspecting and witnessed DeNucci's employees "dump[] a load of dirt into the bottom of the trench." CSHO Beck conducted interviews with Paz, Ponce, Superintendent Lucas, and Foreman Morales; took photographs and measurements; and spoke to DeNucci's owner. During the interviews, CSHO Beck questioned the DeNucci employees as to whether the conditions he observed reflected the conditions present when Paz and Ponce worked in the trench. He was told "that the depth and the width of the trench had not changed." Ultimately, CSHO Beck determined that the trench was not in compliance with OSHA regulations at the time Paz and Ponce were in the trench. Based on CSHO Beck's findings and determinations, OSHA issued the Citation to DeNucci, "with two serious items for violations of 29 C.F.R. § 1926.21(b)(2) and 29 C.F.R. § 1926.652(a)(1)." DeNucci filed a timely notice of contest, bringing the matter before the OSHRC, and a hearing was held before an OSHRC administrative law judge.
At the onset of the hearing, OSHA withdrew the § 1926.21(b)(2) citation item. Proceeding with the remaining item, DeNucci produced six witnesses for two days of testimony: CAS Natarajan, Ponce, Paz, Foreman Morales, Superintendent Lucas, and CSHO Beck. From that testimony, as well as numerous photographic exhibits, the ALJ found that "the trench was 8-9 feet deep" and that DeNucci "did not bench or slope any of the trench's walls at a 1:1 ratio" to that depth, as required under § 1926.652(a)(1). Further, the ALJ found that DeNucci's claims that "the excavation was materially changed," and "the configuration and dimensions of the trench" were "significantly altered," by the excavation operations between the time Paz and Ponce exited the trench and CSHO Beck inspected it "lack merit." The ALJ then affirmed the citation item and assessed a penalty of $4,746.00.DeNucci timely filed a Petition for Discretionary Review with the OSHRC. The OSHRC declined discretionary review, and DeNucci timely filed its petition for review to this court.
DeNucci contends the ALJ's decision should be reversed for two reasons. First, it contends that the ALJ's factual findings are not supported by substantial evidence. Second, DeNucci maintains that the ALJ failed to explain his credibility determinations as required under statute, and OSHRC and circuit court precedent. We disagree.
We review ALJ decisions that the OSHRC declines to review under the same standard that applies to decisions of the OSHRC.1 We must accept factual findings by the OSHRC, and thus the ALJ in this case, as "'conclusive' if they are supported by 'substantial evidence on the record considered as a whole.'"2 That is, we must uphold the ALJ's factual findings "if a reasonable person could have found what the [ALJ] found," even if we "might have reached a different conclusion."3 Contentions based on speculation or derived from inferences upon inferences "do not add support to a finding of substantial evidence."4
To establish a prima facie violation of an OSHA standard, the Secretary of Labor (Secretary) must have shown: (1) the cited standard, 29C.F.R. § 1926.652(a)(1), applied; (2) DeNucci did not comply with the cited standard; (3) DeNucci employees had "access or exposure to the violative conditions"; and (4) DeNucci "had actual or constructive knowledge of the conditions."5 DeNucci contests only the second element of the Secretary's case—that DeNucci did not meet the requirements of § 1926.652(a)(1).
DeNucci does not contend that it used a trench box or otherwise shored or shielded the trench to comply with the standard under paragraph (c).7 Nor does DeNucci argue that either exception applies. Accordingly, we need assess only whether a reasonable person could have found that the trench walls were not sloped or benched at an appropriate angle in accordance with paragraph (b) when Paz and Ponce were in the trench on July 30, 2018.8
The parties jointly stipulated that the soil in the trench was Type B soil. Under paragraph (b), DeNucci was required to safeguard its Type B soiltrench by utilizing a system of benches and slopes at a 1:1 ratio (horizontal distance to vertical rise), or no more than a 45 degree angle.9 DeNucci maintains that the ALJ improperly relied on CAS Natarajan's "unsupported speculation" to "establish the condition of the excavation at the time of employee exposure," as well as "unreasonable inferences" to find that "the excavation was not materially altered prior to CSHO Beck's measurement of the excavation." Moreover, DeNucci continues, "the substantial evidence shows the excavation was not [eight] feet deep when employees worked in the trench."
First, DeNucci contends that the ALJ "improperly relied [solely] on the implausible, speculative, and conclusory testimony of CAS Natarajan" "to establish the condition of the excavation at the time of employee exposure." CAS Natarajan's testimony, DeNucci argues, is "the ALJ's only evidence alleging a non-compliant trench at [the] time employees worked within the area." However, as the Secretary correctly argues, the ALJ's findings regarding the sloping or benching of the trench walls at the time of employee exposure did not rely "solely on unsubstantiated observations by [CAS Natarajan]." Rather, the findings are also supported by the testimony of DeNucci employees and CSHO Beck's inspection findings and photographs.
Citing testimony of CSHO Beck, the ALJ found that the trench was "8-9 feet deep." Then, citing photographic exhibits and testimony of five of the six witnesses, the ALJ found that "the west and east walls of the trenchwere not sloped to 45-degrees when Ponce and Paz were in the trench," but rather "were vertical at the time the employees were in the trench and at the time CSHO Beck arrived." Citing photographic exhibits and testimony of CSHO Beck, the ALJ found that the north and south walls of the trench "had inadequate benching and/or sloping or none at all."
As for the benching and sloping of the trench walls, CSHO Beck observed that both the east and west walls of the trench were vertical. Paz and Foreman Morales conceded that the east wall was vertical the last time Paz and Ponce were in the trench, and Superintendent Lucas conceded that a "portion" of the west wall was vertical. Next, CSHO Beck testified that based on the horizontal measurements of the steps on the north wall (two and a half feet each), he determined that the north wall of the trench was benched only five feet. CSHO Beck testified that the south wall was not benched at all or adequately sloped at the time of his inspection. Photographs of the trench taken during CSHO Beck's inspection confirm this observation. Because the south wall abutted a sidewalk, CSHO Beck explained, DeNucci would have had to cut into the sidewalk to extend the trench opening...
To continue reading
Request your trial