Roberts Pipeline Const., Inc. v. Secretary of Labor, 94-3726
| Decision Date | 02 May 1996 |
| Docket Number | No. 94-3726,94-3726 |
| Citation | 85 F.3d 632 |
| Parties | 17 O.S.H. Cas. (BNA) 1633 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. ROBERTS PIPELINE CONSTRUCTION, INC., Petitioner, v. SECRETARY OF LABOR and Occupational Safety & Health Administration, Respondents. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before BAUER, COFFEY and MANION, Circuit Judges.
Roberts Pipeline Construction, Inc., ("Roberts"), appeals from a decision of the Occupational Health and Safety Review Commission ("Commission") to affirm the award of $30,800 in penalties. Roberts claims that the Commission abused its discretion. We affirm.
On May 22, 1991, an OSHA inspector spotted an open trench that one of Roberts' work crew had dug to insert a T-section into a gas pipeline. The trench was eight feet long, eight and a half feet wide, and seven feet deep at its lowest point, with a smaller adjoining side trench that was five feet long, two and a half feet wide and four feet deep. The inspector observed that no shoring system had been used to protect against cave-ins. Shoring was a particular concern because the soil was the least stable type. After examining the worksite, the inspector issued a citation for a willful failure to provide shoring or equivalent protection, 29 C.F.R. § 1926.651(a)(1). The Secretary of Labor ("Secretary") later proposed a non-willful serious violation of the regulation in the alternative. The OSHA inspector also issued a second citation for seven other serious violations relating to training, safety precautions and equipment violations. 1 The serious nature of the violations made a penalty mandatory. 29 U.S.C. § 666(b).
Roberts contested the Secretary's proposed sanctions. An ALJ for the Commissioner evaluated the evidence in light of the four factors contained in 29 U.S.C. § 666(j): the gravity of violation, the size of employer's business, the employer's prior safety history and the employer's good faith. The first factor, gravity, is deemed to be the most important. The ALJ found that all eight violations were serious. Despite the Secretary's finding to the contrary, the ALJ noted that Roberts had demonstrated good faith during and after the inspection. The ALJ awarded amounts equal to the Secretary's proposed penalties.
The Commission granted Roberts' petition for discretionary review. Roberts generally asserted that the ALJ had committed an "abuse of discretion" by failing to give due consideration to the § 666(j) factors. In a split decision, the Commission affirmed the ALJ's assessments. The majority held that the ALJ had considered the evidence and all of the statutory factors. The third commissioner, Commissioner Edwin G. Foulke, concurring in part and dissenting in part, concluded that the acetylene tank and ground pin violations were less grave than the ALJ found.
Roberts contends that if the Commission had made a proper de novo review of the record in light of the § 666(j) factors, the penalties would have been substantially lower. 2 When the Commission decides not to let the ALJ's determination stand as its decision, it conducts a de novo review of the judge's assessed penalties. Secretary of Labor v. Quality Stamping Products Co., 16 O.S.H.C. 1927, 1027 (OSHRC 1994). In turn, we review the Commission's assessment of penalties for an abuse of discretion. Zemon Concrete Corp. v. Occupational Safety & Health Rev. Comm'n, 683 F.2d 176, 181 (7th Cir.1982). The Commission's factual findings are conclusive to the extent that they are supported by substantial evidence. Martin v. Occupational Safety & Health Rev. Comm'n, 499 U.S. 144, 148 (1991). Although a reviewing court should give some weight to the Secretary's mathematical formula for assessing penalties when deciding whether the Commission has abused its discretion, the Commission is not conclusively bound to the specific percentages assigned under the Secretary's guidelines. See id. at 157 (); Secretary of Labor v. Hern Iron Works, Inc., 16 O.S.H.C. 1619, 1621-22 (OSHRC 1994); cf. also Zemon Concrete Corp., 683 F.2d at 181 n. 16 (). Therefore, the Commission may arrive at penalties equal in size to the Secretary's proposed penalties even if its factual findings differ somewhat.
Roberts' argument on appeal consists of pointing to mitigating evidence in the record. First, it claims that various underground structures stabilized the trench walls: a pipe running along the western wall, another pipe along the south wall, a storm drain behind the east wall and three foot deep curbstones hidden behind the north wall. However, the ALJ focussed on the low cohesiveness of the soil. Substantial evidence in the record supports this position. The OSHA inspector testified that regardless of the presence or absence of pipes, the instability of the soil was the primary concern. Second, Roberts stresses that the top of the gas pipeline was only three feet under ground, a point on which estimates vary. However, the ALJ found that the trench was seven feet deep at its deepest point, the cleared space below the gas pipeline. Helmets, shoring and a ladder for escape were therefore important. (Although perhaps the trench had been shored at the time, we note, as did ALJ, that the foreman had worked six hours the day before the inspection lying at the bottom of the trench.) Third, Roberts stresses that the sides of the pit were not perfectly vertical. However, they were not sloped sufficiently to independently meet OSHA's safety requirements, and photographs in the record show that they were actually fairly steep. Fourth, Roberts asserts that it had a safety committee and hard hats on hand. However, the ALJ found that Roberts lacked a structured safety plan, failed to ensure that the employees had actually read the safety manuals and failed to enforce the safety rules--including the hard hat rule. These findings are supported by substantial evidence. Finally, the ALJ did note that two of the...
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