To make a citation stick, one thing OSHA has to show is that the company had knowledge of the violation. A recent circuit court ruling just made that more difficult for OSHA to prove in some cases.
Walter Cobb was a supervisor for ComTran in Buford, GA. The company performs utilities work that sometimes requires underground digging.
One day, Cobb was trying to find an underground utility conduit. He wasn’t having success, so he continued to dig deeper into a trench.
At the time an OSHA inspector drove by, Cobb’s trench was six feet deep, and there was a five-feet high spoil pile of dirt less than two feet from the excavation. Cobb was alone in the trench, facing an 11-foot total wall of dirt.
OSHA inspected the site, and issued two serious citations to ComTran for failure to avoid a potential cave-in hazard:
- Excavated material wasn’t kept at least two feet from the edge of the excavation, and
- There wasn’t adequate sloping or support systems to protect employees from possible cave-in hazards.
The fines totaled $9,800.
ComTran appealed to the Occupational Safety and Health Review Commission.
An administrative law judge ruled the company had knowledge of the violation because Cobb, a supervisor, had dug the excavation and placed the spoil pile at its edge. Commission precedent said a supervisor’s knowledge of a violation was imputable to the company.
The ALJ upheld the citation, but reduced the penalty to $5,000.
ComTran next appealed to the 11th U.S. Circuit Court.
Case of first impression
The 11th Circuit hadn’t yet weighed the issue of whether a supervisor’s knowledge of his own violation was equal to the company knowing about it. Other circuits had weighed in.
The court said there was no question Cobb himself knew his work was in violation of OSHA regs — or, at the very least, he should have known.
But Cobb’s knowledge of his own violation didn’t resolve the case, according to the court.
When a supervisor knows or should have known about another employee’s OSHA violation, that knowledge is the same as the company knowing. The supervisor is the eyes and ears of the company.
But in this case, when it was the supervisor acting alone that created the violation, it must be looked at differently, according to the 11th Circuit.
OSHA normally has the burden of showing there was employer knowledge of a violation. The 11th Circuit ruled in this case that simply showing a supervisor knew about his own violation shifted the burden away from OSHA to the company. It was now up to the company to show that this was a “rogue” supervisor. The court wrote in its opinion:
“If the Secretary [of Labor, OSHA’s parent agency] seeks to establish that an employer had knowledge of misconduct by a supervisor, she must do more than merely point to the misconduct itself. To meet her prima facie [before closer inspection] burden, she must put forth evidence independent of the misconduct. This could be done, for example, with evidence of lax safety standards. But, the Secretary is the one who must provide such evidence.”
The 11th Circuit said OSHA didn’t prove its case, and it threw out the citations against ComTran. The 11th becomes the fifth circuit to make such a ruling. The states in which these circuit court opinions apply are:
- 3rd Circuit: Delaware, New Jersey, Pennsylvania, Virgin Islands
- 4th Circuit: Maryland, North Carolina, South Carolina, Virginia, West Virginia
- 5th Circuit: Louisiana, Mississippi, Texas
- 10th Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming, and
- 11th Circuit: Alabama, Florida, Georgia.
Only the 6th Circuit (Kentucky, Michigan, Ohio, Tennessee) has issued an opposite opinion. The other circuit courts haven’t taken up the matter yet.
OSHA had one more argument to try in this case. It argued that the decisions in the four other circuit courts were decided a long time ago. The 11th Circuit also rejected that argument, stating:
“Judicial decisions are not spoilable like milk. They do not have an expiration date and go bad merely with the passage of time.”
What all this means in a nutshell: When an OSHA violation is due solely to the actions of a supervisor, it will be more difficult for the agency to make a citation stick in many states.
What do you think about this ruling? Let us know in the comments below.
(ComTran Group v. U.S. Dept. of Labor, U.S. Circuit Court 11, No. 12-10275, 7/24/13)