310 P.3d 1230
Utah Ct. App.2013Background
- Allied Construction was cited by Utah Occupational Safety and Health (UOSH) for exposing employees to a dangerous trench condition in violation of OSHA trenching rules after a compliance officer visited the site.
- A concerned citizen called UOSH reporting unprotected workers in a trench; the caller’s identity, vantage point, and observations were unknown.
- At the site the compliance officer observed a shovel standing upright against the exposed dirt wall and noted a shoring panel was raised about eight feet above the trench floor; the officer did not see any workers in the trench.
- The officer concluded an employee must have been in the trench after the panel was raised (i.e., trench was unshored deeper than two feet while someone was inside) because the shovel’s upright position made it unlikely it remained standing if the panel had been lifted from behind it.
- Allied’s supervisor testified the shovel plausibly remained upright after the panel was raised (it could shift from leaning on the panel to the dirt wall), that the panel is removed slowly, and that he guaranteed panels were not more than two feet above the bottom while workers were inside.
- The ALJ credited the officer’s inference and upheld the citation; the Court of Appeals set aside the Board’s affirmation, holding the ALJ’s finding was speculative and unsupported by substantial evidence.
Issues
| Issue | Allied's Argument | Labor Commission/ALJ's Argument | Held |
|---|---|---|---|
| Whether the Board’s factual finding that an employee was in an unshored portion of the trench (based principally on an upright shovel) is supported by substantial evidence | The shovel could have remained upright after the panel was raised; no witness saw an employee in the trench; the ALJ relied on speculation and her own view of physics | The shovel’s upright position made it improbable the panel was raised from behind it without the shovel falling, so an employee must have been present after panel removal | Reversed: the finding was speculative and not supported by substantial evidence |
| Whether the agency’s factual determination must be overturned under the substantial-evidence standard | Argued the ALJ’s factual determination lacked substantial evidence and Allied properly marshaled contrary evidence | Agency contended its factual inference was permissible | Court applied substantial-evidence review and agreed Allied met marshaling burden; set aside the decision |
Key Cases Cited
- Hurley v. Board of Review of the Indus. Comm’n, 767 P.2d 524 (Utah 1988) (agency fact findings upheld if supported by substantial evidence)
- Bhatia v. Dep’t of Emp’t Sec., 834 P.2d 574 (Utah Ct. App. 1992) (party challenging agency findings must marshal the record)
- Grace Drilling Co. v. Board of Review of the Indus. Comm’n, 776 P.2d 63 (Utah Ct. App. 1989) (definition and standard for substantial evidence)
- Intermountain Slurry Seal v. Labor Comm’n, 48 P.3d 252 (Utah Ct. App. 2002) (distinguishing standards of review for legal questions vs. agency factual findings)