Summary 2008 WY 8

Summary of Decision issued January 29, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Three Sons, LLC v. Wyoming OSHA Commission

Citation: 2008 WY 8

Docket Number: S-07-0077

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

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

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

Facts/Discussion: Three Sons challenged the Commission’s decision to uphold a citation for failing to provide its employees with proper cave-in protection in an excavation. Three Sons claimed there was insufficient evidence to support the factual findings and asserted it was subjected to administrative bias. The Court reviews an appeal from a district court review of an agency action as if it had come directly to the Court from the administrative agency and they apply the substantial evidence standard. The conclusions of law are reviewed de novo. OSHA rules require cave-in protection for trenches which are more than 5 feet deep because such trenches present an imminent danger to workers.
Soil Classification: The Court reviewed the evidence provided at the hearing from Three Sons and the OSHA compliance officers. The Court stated that there was substantial evidence to support the hearing examiner’s finding.
Trench Measurements: There was conflicting evidence in the record regarding the measurement of the trench. It was the hearing examiner’s responsibility to judge the credibility of the witnesses and weigh the evidence. The examiner concluded that the OSHA measurements of the trench were more credible. The Court stated there was substantial evidence to support the hearing examiner’s findings on the depth and configuration of the trench. Three Sons also argued that this was a short term excavation and therefore had to meet a different set of requirements. Since the hearing examiner determined the soil was Class B and not Class A, the short term excavation requirements did not apply.
Employee’s Position in the Trench: Three Sons argued that OSHA’s measurements were taken at the south end of the trench but that there was no evidence that an employee was ever that far down in the trench. The Court was not persuaded. The shovel and footprint evidence from that part of the trench were sufficient to support the hearing examiner’s conclusion that an employee in the excavation was not protected from cave-ins by an adequate protection system.
Administrative Bias: Three Sons’ first claim raised the issue of whether an employee of the agency issuing the citation was prejudiced or biased against Three Sons in deciding to issue the citation. OSHA Rules Practice and Procedure indicated that the history of previous violations is a legitimate factor in deciding what penalty to assess. Given that the Court concluded that substantial evidence existed to support the hearing examiner’s factual findings regarding the citation, Three Sons could not establish prejudice even if it were true that the agency employee was biased against it when he decided to issue the citation. The second claim was that the hearing examiner was biased because she had heard another case involving Three Sons the day before. The hearing examiner is presumed to act with honesty and integrity. Three Sons made no attempt at the hearing to have the examiner disqualified, inquire into her bias or request a continuance. The Court found nothing in the record to overcome the presumption.

Holding: The Court stated there was sufficient evidence in the record to support the hearing examiner’s decisions. Three Sons did not overcome the presumption that the hearing examiner had acted with honesty and integrity.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/yty7kh .

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