Triumph Constr. Corp. v. Sec'y of Labor, 885 F.3d 95

Triumph Construction was cited by OSHA after a worker was injured in an excavation cave-in in Manhattan on Aug. 22, 2014; OSHA inspected that day and later issued a citation for violating 29 C.F.R. § 1926.652(a)(1).
OSHA classified the citation as a repeat violation based on two prior Triumph citations from 2009 and 2011; OSHA assessed a $25,000 penalty.
Triumph contested the citation; an ALJ held an evidentiary hearing (Jan. 5, 6, 21, 2016) and affirmed the repeat violation; the Commission declined review, making the ALJ decision final.
Triumph argued the Commission (1) impermissibly shifted the burden of proof by drawing an adverse inference from Triumph’s failure to produce foreman Augustin Formoso as a witness, and (2) improperly treated the violation as a repeat offense by relying on prior citations older than three years.
The court reviewed factual findings for substantial evidence and legal conclusions de novo, denying Triumph’s petition and upholding the repeat classification and penalty.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Burden of proof/adverse inference for missing witness	Triumph: ALJ shifted burden by drawing adverse inference from non-production of Formoso	Secretary: ALJ properly required Triumph to prove the excavation fell within the <5 ft exception and could consider missing witness testimony in credibility analysis	Held: No impermissible burden shift; ALJ properly required Triumph to show exception and missing testimony was one credibility factor; substantial evidence showed depth >5 ft
Repeat-violation look-back period	Triumph: Commission relied on prior violations older than the OSHA Field Operations Manual’s 3-year guideline and thus acted arbitrarily	Secretary: Manual’s 3-year guideline is nonbinding; no statutory time limit and Commission precedent permits longer look-back	Held: Commission did not abuse discretion; Manual is guidance only and precedent allows using violations over three years old; repeat classification upheld

Solis v. Loretto-Oswego Residential Health Care Facility, 692 F.3d 65 (2d Cir. 2012) (standards for reviewing OSHA/ALJ findings; deference to Secretary’s interpretations)
New York State Elec. & Gas Corp. v. Sec'y of Labor, 88 F.3d 98 (2d Cir. 1996) (Secretary bears burden to prove OSHA violation by preponderance)
New York Univ. Med. Ctr. v. N.L.R.B., 156 F.3d 405 (2d Cir. 1998) (party invoking an exception bears burden to establish it)