It’s not uncommon for a company to get a reduction in the amount of its OSHA fine on appeal. In this case, OSHA prevailed and got a fine increased.
The agency had fined MVP Piping Co. $45,000 for two violations it found at a sewer installation site in Rossville, GA:
- a $3,000 fine for a serious violation for failing to ensure employees were wearing protective helmets, and
- a $42,000 willful violation for failing to provide cave-in protection for employees working in an excavation.
An administrative law judge (ALJ) of the Occupational Safety and Health Review Commission (OSHRC) affirmed both citations, but reduced the serious violation to $1,000 and the willful violation to $7,000 for a total of $8,000 — an 82% reduction.
OSHA appealed to OSHRC. The agency argued MVP withdrew its notice of contest for the serious violation, and for that reason, the ALJ shouldn’t have reduced the fine because when a violation is uncontested, it becomes final. OSHRC agreed with OSHA and restored the $3,000 amount of that fine.
Regarding the willful citation, OSHA argued the judge should have made the fine higher, noting $7,000 was close to the $5,000 statutory minimum for a willful violation. The ALJ had determined that the willful violation was of high gravity.
Gravity is one of several factors taken under consideration when setting OSHA penalties, and it’s the most significant one.
When determining gravity, OSHRC considers the number of exposed employees, the duration of their exposure, whether precautions could have been taken against injury and the likelihood of injury.
In this case involving MVP, the company’s foreman knowingly exposed two employees to an unprotected excavation. None of the measures taken by the company could have prevented a potentially deadly cave-in, according to OSHRC. Employees were in the excavation for 20 to 45 minutes.
The foreman also acted improperly by relying on his employees to tell him if they felt safe enough to be in the excavation without cave-in protection. Employers aren’t supposed to shift their OSHA responsibility to employees by relying on them to determine whether conditions are unsafe.
For those reasons, the OSHRC agreed the gravity of the violation was high and raised the amount of the willful violation to $22,000. The total fine for both violations is now $25,000.
(Secretary of Labor v. MVP Piping Co., OSHRC Docket No. 12-1233, 1/22/14)