Stark Excavating, Incorporated v. Thomas Perez
811 F.3d 922
| 7th Cir. | 2016Background
- Stark Excavating received OSHA citations in June 2008 for a Peoria eyewear violation (not at issue), a spoil piles violation, and two willful cave-in protections violations; penalties proposed totaled $187,000 across sites.
- At the Peoria site, foreman Schupp recorded Type B soil but did not complete the bottom portion of the Daily Report that specified cave-in protection methods and slope requirements; measurements showed slopes up to 80 degrees, well beyond the 45-degree limit for Type B soil.
- OSHA officer observed Schupp at the trench and Schupp acknowledged some noncompliance after OSHA arrived; the soil type was identified as Type B, but proper slope measurements were not implemented.
- The ALJ found the Peoria cave-in violation serious, not willful, citing Stark’s safety program and lack of intentional disregard; the Commission later reversed on willfulness, affirming a willful determination and higher penalties.
- Stark challenged the Commission’s credibility-based assessment and argued a deference error; the court held substantial evidence supports the Commission’s willfulness finding and that Stark failed to prove effective enforcement of safety rules.
- Stark’s arguments regarding good faith compliance and unpreventable employee misconduct were rejected; the petition for review was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Peoria cave-in violation is willful or serious | Stark argues serious, not willful | Commission found willful based on Schupp’s awareness | Willful |
| Whether Stark’s good faith efforts negate willfulness | Stark had safety rules and training showing good faith | No evidence of effective enforcement at the site | No good faith defense; willfulness upheld |
| Appropriate standard of review for Commission credibility determinations | ALJ credibility should prevail | Commission credibility findings deserve deference | Substantial evidence supports Commission; deference to Commission proper |
| Whether Stark effectively enforced its safety rules at issue | Strict enforcement through written tickets; rules in place | Enforcement lacked consistency; tickets rarely issued | Stark failed to demonstrate effective enforcement; willfulness sustained |
Key Cases Cited
- Dukane Precast, Inc. v. Perez, 785 F.3d 252 (7th Cir. 2015) (willfulness requires awareness, seriousness, and opportunity to avoid risk)
- Chao v. Gunite Corp., 442 F.3d 550 (7th Cir. 2006) (substantial evidence standard; deference to Commission findings)
- KS Energy Services, LLC v. Solis, 703 F.3d 367 (7th Cir. 2012) (definition of substantial evidence; standard of review)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) ( Board findings reviewed with balance of impartial examiner findings)
- Allis-Chalmers Corp. v. Occupational Safety & Health Review Comm’n, 542 F.2d 27 (7th Cir. 1976) (Commission not bound by ALJ credibility determinations if supported by substantial evidence)
- Union Tank Car Co., Inc. v. Occupational Safety & Health Admin., 192 F.3d 701 (7th Cir. 1999) (limits on ALJ credibility deference; review of Commission findings)
- Super Excavators, Inc. v. Occupational Safety and Health Review Comm’n, 674 F.2d 592 (7th Cir. 1981) (role of credibility determinations when reviewing Commission decisions)
- Local 65-B Graphic Communications Conference of the Intl. Brotherhood of Teamsters v. NLRB, 572 F.3d 342 (7th Cir. 2009) (scope of credibility and evidence for Board findings)