Allied Construction & Development, Inc. v. Labor Commission Appeals Board

2013 UT App 224_________________________________________________________
THE UTAH COURT OF APPEALS
ALLIED CONSTRUCTION & DEVELOPMENT, INC.,
Petitioner,
v.
LABOR COMMISSION APPEALS BOARD,
Respondent.
Memorandum Decision
No. 20120729‐CA
Filed September 12, 2013
Original Proceeding in this Court
Darrel J. Bostwick and D. Ryan Robison, Attorneys
for Petitioner
John E. Swallow and Brent A. Burnett, Attorneys
for Respondent
JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
concurred.
DAVIS, Judge:
¶1 Allied Construction & Development, Inc. (Allied) seeks
review of the Utah Labor Commission Appeals Board’s decision
upholding the administrative law judge’s (ALJ) determination that
Allied exposed its employees to a dangerous work condition in
violation of the Occupational Safety and Health Act (OSHA). See
generally 29 C.F.R. § 1926 (2011) (Occupational Safety and Health
Act); Utah Admin. Code R614‐1‐4(B)(1) (incorporating parts of
OSHA’s chapter titled “Safety and Health Regulations for
Construction” into the Utah Labor Commission’s Occupational
Safety and Health regulations). We set aside the Board’s decision.
¶2 Allied argues that the ALJ’s determination, and the Board’s
approval thereof, is not supported by “the great weight of the
Allied Construction v. Labor Commission
evidence presented.” An “agency action [that] is based upon a
determination of fact, made or implied by the agency, [must be]
supported by substantial evidence when viewed in light of the
whole record before the court.” Utah Code Ann. § 63G‐4‐403(4)(g)
(LexisNexis 2011); see also Murray v. Labor Comm’n, 2013 UT 38, ¶ 19
(“While [section 63G‐4‐403(4)(g) of the Utah Code] does not
explicitly require a certain standard of review, it characterizes the
agency action in such a way that implies a ‘substantial evidence’
standard. This is because we can grant relief under this provision
only after reviewing the agency’s determination of fact for a lack of
substantial evidence.”).1 In other words, we will not overturn an
agency’s factual findings if they are “based on substantial evidence,
even if another conclusion from the evidence is permissible.”
Hurley v. Board of Review of the Indus. Commʹn, 767 P.2d 524, 526–27
(Utah 1988). Additionally, the party challenging factual findings
1. We reject Allied’s characterization of its argument as presenting
a question of law to be reviewed under a less deferential
correctness standard. See Intermountain Slurry Seal v. Labor Comm’n,
2002 UT App 164, ¶ 4, 48 P.3d 252 (“When reviewing a question of
law, we give no deference to the trial judge’s or agency’s
determination, because the appellate court has the power and duty
to say what the law is and to ensure that it is uniform throughout
the jurisdiction.” (citation and internal quotation marks omitted));
see also Murray v. Labor Comm’n, 2013 UT 38, ¶ 40 (categorizing the
Labor Commission’s causation decision as “‘law‐like,’”
“warrant[ing] nondeferential review” because “the ultimate
question [at issue was] the legal effect of the facts,” while also
recognizing that such a determination could have involved “a fact‐
intensive inquiry” had the facts been at issue). And, in this case, we
would reach the same result under a question of law standard of
review as we do under the standard applied. See generally Murray,
2013 UT 38, ¶ 20 (explaining that “even where section 63G‐4‐
403(4)(g) implies a ‘substantial evidence’ standard on appeal, . . .
we must look outside [the Utah Administrative Procedures Act] to
determine what that standard means”).
20120729‐CA 2 2013 UT App 224Allied Construction v. Labor Commission
must “properly present the record, by marshaling all of the
evidence supporting the findings and showing that, despite that
evidence and all reasonable inferences that can be drawn
therefrom, the findings are not supported by substantial evidence.”
Bhatia v. Department of Emp’t Sec., 834 P.2d 574, 579 (Utah Ct. App.
1992) (citation and internal quotation marks omitted). Given the
dearth of evidence in this case, we determine that Allied has
satisfied its marshaling burden.
¶3 The outcome of this case turns on “[t]he mute ‘testimony’ of
a shovel.” The Utah Occupational Safety and Health Division of the
Labor Commission (UOSH), which issued the citation against
Allied, interpreted, and the ALJ agreed, that a shovel left leaning
upright against the exposed dirt wall of a trench dug by Allied was
indicative of Allied’s violation of the OSHA regulation prohibiting
a trench to be excavated lower than two feet below the trench
support system. See 29 C.F.R. § 1926.652(e)(2)(i). A UOSH
compliance officer was dispatched to Allied’s work site after
receiving “a call from a concerned citizen that there were people
working in a trench and that they weren’t protected in the trench.”
No more information was provided as to the identity of the caller,
the caller’s vantage point, what the caller specifically observed, or
when. At the work site, the compliance officer observed a shovel of
ordinary size leaning against the exposed dirt wall of the trench
and noticed that the trench’s support system panel was raised
above the height of the shovel, approximately eight feet above the
trench floor. Though the compliance officer admitted that he did
not see anyone in the trench during his site visit, he concluded that
an employee must have been in the trench after the panel was
raised to explain the presence of the upright shovel. Otherwise, the
shovel must have been leaning against the trench panel before the
panel was raised and remained upright while the panel was lifted,
which the officer considered less likely.
¶4 However, both the compliance officer and the Allied
supervisor in charge of the trench project testified that it was
entirely possible that the shovel remained upright after the panel
20120729‐CA 3 2013 UT App 224Allied Construction v. Labor Commission
was lifted from behind it and simply shifted from leaning against
the panel to leaning against the trench’s dirt wall. The supervisor
acknowledged that he did not observe whether the panel was
raised from behind the shovel or whether an employee placed the
shovel in the trench before or after the panel was lifted and testified
that he “would guarantee that [the panel] was not over two feet off
the bottom . . . when people were down in there working.”
¶5 The supervisor further explained that because the trench
project required Allied to acquire a “slide rail” shoring system that
cost upwards of $300,000, its employees are “pretty careful how
they pull [the panels] up . . . [and] how they treat this [safety
system].” Indeed, OSHA specifically requires that trench support
panels be removed gently. See 29 C.F.R. § 1926.652(e)(1)(v)
(“Members [of a trench support system] shall be [removed] slowly
so as to note any indication of possible failure of the remaining
members of the structure or possible cave‐in of the sides of the
excavation.”). Likewise, the officer testified that he had not seen a
slide rail system before his visit to Allied’s work site and that he
was not familiar with how that particular system worked at the
time of his visit. Nor was he apprised of the nature of the project or
that it required compliance with exacting specifications that
routinely involved the shoring panels being raised to adjust the
trench’s trajectory.
¶6 Notwithstanding this evidence, the ALJ found “it
improbable that the panel could have been removed from the
bottom portion of the trench [and from behind the shovel] without
the shovel falling over.” The ALJ noted that the shovel’s “pointed
blade” “make[s] it less stable in an upright position, and the use of
heavy equipment to remove the panel[] makes it less likely that the
removal of the panel was a completely smooth one.” Accordingly,
the ALJ concluded that “the preponderance of the evidence shows
that at least one employee was in the trench when the unshored
bottom was deeper than 2[ feet],” at which time that employee
“leaned the shovel against the wall after the panel had been
removed.”
20120729‐CA 4 2013 UT App 224Allied Construction v. Labor Commission
¶7 We disagree and conclude that the ALJ’s determination was
a product of speculation, rather than one that was supported by
substantial evidence. “Substantial evidence is more than a mere
scintilla of evidence” and “is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Grace
Drilling Co. v. Board of Review of the Indus. Comm’n, 776 P.2d 63, 68
(Utah Ct. App. 1989) (citations and internal quotation marks
omitted). Here, there is no information as to what the anonymous
caller observed that led him or her to call UOSH in the first place.
The only witnesses that testified at the hearing, the compliance
officer and the Allied supervisor, stated that they did not observe
any employees in the trench after the panel was raised and did not
observe when or how the shovel came to be resting against the
trench wall. The ALJ’s determination upholding the citation was
based entirely on her belief that “it [was] improbable that the panel
could have been removed” by heavy equipment “without the
shovel falling over.” This presumed “improbability,” however, is
not substantial evidence that the shovel was necessarily placed in
the trench after the shoring was removed. Evidence explaining the
physics at work here was not provided by the parties, and we agree
with Allied that the ALJ relied on her own view of physics to
decide the case. Therefore, her decision was not supported by
substantial evidence. Accordingly, we set aside the Board’s
decision.
20120729‐CA 5 2013 UT App 224