Summary 2007 WY 93

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Case Name: Three Sons, LLC v. Wyoming Occupational health and Safety Commission (OSHA)

Citation: 2007 WY 93

Docket Number: 06-228

Appeal from the District Court of Carbon County, Honorable Wade E. Waldip, Judge

Representing Appellant (Petitioner): John R. Hursh of Central Wyoming Law Associates, Riverton, Wyoming

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Assistant Attorney General.

Date of Decision: June 7, 2007

Issues: Whether the District Court erred in finding that the misallocation of the burden of proof by the Appellee and the Hearing Officer was harmless error. Whether the District Court erred in finding that the Appellee, even under an improper allocation of the burden of proof, met its burden without any evidence of foreseeability or preventability of the willful violation of OSHA regulation 1926.652(a)(1) requiring excavation cave-in protection, is supported by substantial evidence. Whether the District Court erred in upholding the rejection of the employee misconduct defense and holding the employer to a strict liability standard.

Holdings: In determining which party bears the burden of proof, the applicable substantive statutes are considered. When the statutes do not assign the burden of proof, the proponent of the order has both the initial burden of production and the ultimate burden of persuasion in a contested case hearing. The purpose of Wyoming's OSHA statutes is to prevent accidents and promote safety in the workplace. The statutes do not assign the burden of proof. Therefore, WOSHA, as the proponent of orders upholding citations and penalties, has both the initial burden of production and the ultimate burden of persuasion in a contested case hearing to prove an employer committed the violations. However, when unpreventable employee misconduct is provided as an affirmative defense, the employer bears the burden of pleading and proving it.

Congress has specifically imposed on the employer the responsibility to assure compliance by his own employees. The duty to assure compliance includes the obligation to prevent hazardous non-complying conduct by employees. Since the employer has the responsibility of taking all reasonable steps to eradicate preventable hazards, including imposing work rules, communicating the rules to employees, and providing training, supervision and disciplinary action designated to enforce the rules, a prima facie case is established when there is evidence of the employer's awareness of a potentially preventable hazard and introduction of proof of the employer's failure to provide adequate safety equipment or to properly instruct its employees on necessary safety precautions. Thereafter, an employer may defend the citation on the ground that, due to the existence of a thorough and adequate safety program which is communicated and enforced as written, the conduct of its employee(s) in violating that policy was idiosyncratic and unforeseeable. By its nature, information with respect to the implementation of its written safety program will be in the hands of the employer, and it is not unduly burdensome to require it to come forward with such evidence. If the employer's evidence preponderates, it has successfully established the defense of unforeseeable employee misconduct.

Although the agency has the initial burden of production and the ultimate burden of persuasion to prove that a violation occurred, it is reasonable and in accord with the usual evidentiary rules for the burden to shift upon presentation by WOSHA of a prima facie case to the employer to prove the affirmative defense of employee misconduct. Therefore, the hearing examiner properly placed upon Appellant the burden of proving the affirmative defense of unpreventable employee misconduct.

It is not enough for the government to prove the violation. In order to make the prima facie showing necessary to satisfy its burden of proof, the government must also prove the violation occurred and the employer knew or with reasonable diligence could have known the violation was likely. Proof of the employer's actual or constructive knowledge of the violation is essential to the government's prima facie case. Constructive knowledge may be shown by evidence that the employer failed to establish an adequate safety program promoting compliance with safety standards. In the case at hand, the testimony was enough to establish a prima facie case that the violation was foreseeable because of inadequacies in safety precautions, employee training and supervision. The evidence was undisputed that two of the three employees observed in the trench in violation of OSHA regulation 1926.652(a)(1) requiring excavation cave-in protection had not received excavation safety training and that only one of the employees had received any safety training at all. Given that the evidence supports the conclusion that Appellant knew, or with the exercise of reasonable care could have known, that a violation was likely, the hearing examiner's failure to specify that element of the state's burden in her written order does not give rise to reversible error.

Although an employer cannot foresee that an employee would violate a direct order and that intentional employee misconduct cannot form the basis of a citation. Appellant's principal supervisor on the job site, knew the employees had never seen a trench box or a ladder in their life. Yet despite its knowledge that the employees knew nothing about trench safety, working around trenches or safety in general, Appellant took no precautions to ensure that these employees were aware of and understood the requirements of the OSHA excavation safety standards or that they conducted themselves in accordance with them. Appellant did not do everything in its power to ensure compliance with the law. Rather, without providing any training in excavation safety to ensure these newly hired employees were aware of and understood the OSHA requirements and conducted themselves accordingly, Appellant allowed them to begin work above a trench that was over seven feet deep without supervision with the ultimate intent of having them work in the trench. Other than the testimony that one individual instructed to them not to enter the trench, the significance of which was brought into question by the evidence that another supervisor allowed the three members of his crew to enter the trench, there was no evidence Appellant did anything to ensure compliance with the law.

Where an employee is directly participating in a job, the employer may well have a duty to instruct him on the safe procedure for handling the job. On the other hand, training may be unnecessary for an employee who is wholly disassociated with the operation in question and who would not be foreseeably exposed to danger. In the present case, the employees were at the excavation site specifically for the purpose of performing work in and around the trench. They were not, therefore, "wholly disassociated with the operation in question" and it was foreseeable that they would be exposed to the dangers associated with excavation work. It was undisputed that they had no experience or training in excavation work and no one communicated any safety rules to them before leaving them to begin work around the trench. Given these facts, substantial evidence supported the district court's order affirming the hearing examiner and the order was not arbitrary.

Affirmed.

Link to case: http://tinyurl.com/yqfn89.