Martin C. Heck Brick Contracting Co.

Plain-English summary

OSHA cited Heck for repeat scaffold fall-protection violations after observing employees on an unguarded scaffold about 21 feet above the ground. The underlying citation was vacated because testimony showed the employees were raising the scaffold, an activity governed by a different provision. In the later fee proceeding, the Commission found OSHA had been substantially justified in issuing the citation based on the compliance officer's observations. It held, however, that OSHA was no longer justified in continuing the case after Heck submitted employee statements saying the scaffold was being raised and OSHA failed to investigate those assertions. The Commission reversed the fee denial in part and remanded for an award of reasonable fees and expenses incurred after March 26, 2004.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(g)(1); 29 C.F.R. § 1904.40(a)
• Outcome: The Commission remanded for an EAJA award covering the scaffold defense after OSHA's position ceased to be substantially justified.
• Key point: When credible new information materially weakens a citation, the government must reasonably investigate before continuing the litigation.

Full text (OSHRC public release)

Martin C. Heck Brick Contracting CO., Docket No. 04-0781

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 04-0781

MARTIN C. HECK BRICK
CONTRACTING CO.,

Respondent.

APPEARANCES:

Ian Eliasoph, Attorney; Charles F. James, Counsel for Appellate Litigation for
Occupational Safety and Health; Daniel J. Mick, Counsel for Regional Trial
Litigation; Joseph M. Woodward, Associate Solicitor for Occupational Safety and
Health; Howard M. Radzely, Solicitor of Labor; Department of Labor,
Washington, DC

For the Complainant

Donald W. Jones, Esq.; Austin E. Williamson, Esq.; Hulston, Jones & Marsh,
Springfield, MO

For the Respondent

DECISION

Before: RAILTON, Chairman; ROGERS and THOMPSON, Commissioners.

BY THE COMMISSION:

The issue on review before the Commission is whether Martin C. Heck
Contracting Company (Heck) is entitled to an award for fees and expenses under the
Equal Access to Justice Act (EAJA), 5 U.S.C. § 504. This case arose as a result of an
inspection conducted on February 25, 2004, by compliance officer (CO) Larry O.
Davidson from the Occupational Safety and Health Administration (OSHA) at a worksite
in Troy, Missouri, where Heck was engaged in masonry work on a bank building. The
Secretary issued Heck a citation alleging a repeat violation of 29 C.F.R. § 1926.451(g)(1)
for failing to provide employees with adequate fall protection while working on a
scaffold more than 10 feet above a lower level and a non-serious violation of 29 C.F.R.
§ 1904.40(a) for failing to provide an authorized government employee with records
within four hours of a request. She proposed a total penalty of $2,400. Administrative
Law Judge Ken S. Welsch vacated the repeat violation, affirmed the other-than-serious
violation, and assessed a total penalty of $200.

Upon the judge’s decision becoming a final order of the Commission, Heck filed
a timely application under the EAJA for fees and expenses incurred in defending against
the citation item alleging a repeat violation of section 1926.451(g)(1). The judge denied
Heck’s application based on his finding that the Secretary’s position in issuing and
pursuing the citation was substantially justified. For the following reasons, we reverse in
part and remand this case to the judge to calculate the amount of fees and expenses to
which Heck is entitled in accordance with this decision.

Background

On February 25, 2004, the CO observed two Heck employees standing on a
scaffold platform without fall protection. He videotaped the conditions for two to four
minutes before entering the site to conduct an inspection, which lasted about 30 minutes.
During that time, the CO observed masonry materials, including cinder blocks and five-gallon buckets, on the scaffold platform, and he also saw Heck bricklayer Mark
Cummisky walking along the scaffold platform.

After unsuccessfully trying to locate the general contractor on the site, the CO
approached a worker standing on the ground near the scaffold, showed his credentials,
and asked who was in charge. The worker identified Robert “Gene” Houston, who at that
time was located on the scaffold. Houston testified that after he climbed down from the
scaffold, he told the CO that Heck employees were in the process of raising the scaffold.
However, the CO testified that Heck employees never provided this information to him at
the site. He testified that based on his observation of the masonry materials on the
scaffold platform next to Cummisky, he concluded that the employees were performing
masonry work.

At an informal conference held at the OSHA area office in St. Louis on March 26,
2004, about a month after the inspection, Heck representative Jerry Brothers of Brittany
Inc. presented Leland Darrow, the CO’s supervisor and a Strategic Team Leader at
OSHA’s St. Louis office, with two written statements from Houston and another
employee, Perry Walsh. In the statements, the employees maintained that they were in
the process of raising the scaffold at the time of the inspection. Upon receipt of these
statements, Darrow reviewed the CO’s videotaped observations and determined that
Heck employees were not raising the scaffold at the time of the inspection. At the
hearing before Judge Welsch, Heck submitted the employees’ written statements into
evidence, and testimony by Houston and Cummisky, both of whom the Secretary
presented as witnesses, corroborated the written assertions that employees were raising
the scaffold.

In vacating the alleged repeat violation of section 1926.451(g)(1), the judge found
that because the evidence failed to show that the employees on the scaffold were engaged
in masonry work as alleged, the Secretary failed to establish the applicability of the
standard.

See Astra Pharmaceutical Prods. Inc. , 9 BNA OSHC 2126, 2129, 1981 CCH
OSHD ¶ 25,578, pp. 31,899-900 (No. 78-6247, 1981), aff’d in pertinent part , 681 F.2d 69
(1st Cir. 1982) (Secretary must establish applicability of cited standard, noncompliance
with its terms, employee exposure to the hazard, and employer knowledge of the hazard).
Crediting the corroborative testimony of employees Houston and Cummiskey that they
were raising the scaffold, the judge found that such activity was covered by another
standard, section 1926.451(g)(2), which applies to scaffold erecting and dismantling.

Discussion

Under the EAJA, a prevailing party that meets certain size and financial eligibility
requirements may be reimbursed for its fees and expenses unless the Secretary
demonstrates that she was substantially justified or that special circumstances make an
award unjust. 5 U.S.C. § 504(a)(1) and (b)(1); s ee also Commission EAJA Rule 105, 29
C.F.R. § 2204.105, and Commission EAJA Rule 106, 29 C.F.R. § 2204.106. The test of
whether the Secretary’s action is substantially justified is essentially one of
reasonableness in law and fact. Contour Erection and Siding Systems Inc. , 18 BNA
OSHC 1714, 1716 (No. 96-0063, 1999). Here, it is undisputed that Heck meets the
eligibility requirements for an EAJA award. Thus, the only question at issue is whether
the Secretary’s action was substantially justified.

In denying Heck’s EAJA application, the judge found that the Secretary had a
reasonable basis for citing and prosecuting Heck for the alleged violation. See
Commission EAJA Rule 106(a), 29 C.F.R. 2204.106(a) (position of Secretary includes
her litigation position as well as her action or inaction prior to the litigation). Noting that
his resolution of the case ultimately rested on a credibility determination in favor of the
testimony of the two Heck employees over that of the CO, the judge reasoned that “the
Secretary cannot be held accountable for not anticipating how the court would resolve
credibility issues and weigh evidence.”

We agree that the Secretary was substantially justified in issuing Heck a citation
on March 5, 2004, for violating section 1926.451(g)(1). The record shows that the
information gathered by the CO at the inspection reasonably supported his view at that
time that Heck had failed to provide employees working on a scaffold with adequate fall
protection. Specifically, the CO observed employee Cummisky standing and walking on
a scaffold platform approximately twenty-one feet above the ground without any fall
protection. The platform faced the wall of a building that appeared to be in the process
of having bricks laid. Alongside Cummisky on the platform were masonry materials,
including a supply of cinder blocks and one or more five-gallon buckets. In addition, the
CO testified that an employee at the site told him that Heck was performing masonry
work at the site. According to the CO, he saw none of the typical indicators that he
would have expected to see where employees are raising a scaffold, such as “uprights
placed up at a higher level than the scaffold,” “platforms placed up on higher levels,” and
“cross braces placed on the uprights that they are placing on a higher level to take the
scaffold up.” Thus, he did not ask the employees during the inspection whether they
were raising the scaffold, nor did they provide him with that information.

Contrary to Heck’s claims on review, we find that the record lacks sufficient
evidence to conclude that the CO was told during the inspection that employees were
raising the scaffold. Houston was the only Heck employee to claim in both his written
statement and his testimony that he relayed this information to the CO during the
inspection.

However, in its EAJA application, Heck itself undercuts Houston’s claim by
stating “[r]espondent’s foreman [Houston] and employees would have told the
investigator they were raising the scaffold had he inquired of them during the
inspection…” (emphasis added). Then, in a subsequent amendment to its EAJA
application, Heck backpedaled by stating that the CO may not have heard this
information. Under these circumstances, we see no reason to disturb the judge’s finding
that “neither Houston [n]or Cummisky told [CO] Davidson they were raising the
scaffold.” Accordingly, we find that the CO’s observations of an unprotected employee
in proximity of masonry materials on the scaffold platform, where there was no
indication of dismantling or erecting the scaffold, provided a reasonable basis in law and
fact for the Secretary to have cited Heck for a lack of fall protection in violation of
section 1926.451(g)(1).

We disagree, however, with the judge’s finding that the Secretary was
substantially justified in pursuing the citation through litigation after Heck presented the
written statements by Houston and Cummisky at the informal conference. Under the
EAJA, Congress adopted the “substantial justification” standard as a “caution to agencies
to carefully evaluate their case and not to pursue those which are weak or tenuous.”
William B. Hopke Co. , 12 BNA OSHC 2158, 2159, 1986-87 CCH OSHD ¶ 27,729, p.
36,255-6 (No. 81-206, 1986) (citing H.R. Rep. No. 1418, 96th Cong., 2d Sess. at 14,
reprinted in 1980 U.S. Code Cong & Ad News at 4993). In this case, the employees’
written statements weakened the Secretary’s case by creating doubts about whether the
alleged conditions were violative of the standard cited. Despite these doubts, the
Secretary proceeded with her case without making any attempt to develop additional
facts with which to evaluate the validity and reliability of the statements provided by
Heck.

As support for her claim that she was justified in proceeding with the citation as
issued, the Secretary submitted in her response to Heck’s EAJA application an affidavit
by Darrow, the CO’s supervisor, who conducted the informal conference with Heck
representative Jerry Brothers on March 26, 2004. In his affidavit, Darrow maintained
that he deemed the written statements submitted at that time by Brothers to be unreliable
because they “seemed contrary to one another, and were contradicted by the CSHO’s
videotaped documentation.” However, none of the statements he describes as
contradictory are plainly inconsistent.

Nor was Darrow’s reliance on the CO’s videotaped observations a reasonable
basis for rejecting outright the assertions made in the written statements. The videotape
showed only masonry materials and an unprotected employee walking on a scaffold
platform. It neither bolstered the CO’s interpretation of the conditions at the time of the
inspection nor discredited the assertions made in the written statements. In fact, at the
hearing, the CO himself recognized in the conditions depicted in his videotape that “to
lay more block, the scaffold would have to be raised.” Thus, by the CO’s own
assessment, reliance on the videotape was not a reasonable basis on which to dismiss the
employees’ written statements that they were raising the scaffold at the time of the
inspection.

Rather than take reasonable steps, such as interviewing the employees in
question, to acquire additional information with which to evaluate the assertions made in
the written statements, the Secretary chose to proceed with a case significantly weakened
by the claims that the conditions alleged in her citation were not valid. Under these
circumstances, we find that the Secretary’s failure to conduct further factual investigation
upon receipt of the written employee statements on March 26, 2004, was not reasonable,
and therefore her position in litigation was not substantially justified. See Consolidated
Constr. Inc. , 16 BNA OSHC 1001, 1005-6 (No. 89-2839, 1993) (where employer’s
submission of post-citation expert’s report weakened Secretary’s case-in-chief, no
substantial justification in proceeding without further development of facts).

ORDER

We remand this case to the judge with instructions to award in accordance with
Commission EAJA Rule 107, 29 C.F.R. § 2204.107, the reasonable fees and expenses for
work performed in connection with Heck’s defense of the citation item alleging a section
1926.451(g)(1) violation after March 26, 2004, when the Secretary’s position ceased to
be substantially justified.

SO ORDERED.

_/s/____

Thomasina V. Rogers

Commissioner

_ /s/ _________

Horace A. Thompson

Commissioner

Dated: __ August 2, 2006_

RAILTON, Chairman, dissenting in part:

I agree with my colleagues that the Secretary was substantially justified in issuing
the citation to Heck. I disagree with their conclusion that she was not substantially
justified to proceed with the litigation upon receipt of the unsworn employee statements.

The Commission has previously held that while the Secretary may be
substantially justified in issuing a citation, when subsequent evidence comes to light
during later stages of the litigation, which weakens and undermines her case, she must
make additional inquiry or take other steps to substantiate her continued prosecution of
the matter. See, e.g., Consolidated Constr., Inc., 16 BNA OSHC 1001, 1991-93 CCH
OSHD ¶ 29,992 (No. 89-2839, 1993); Secretary v. Contour Erection and Siding Systems
Inc., 18 BNA OSHC 1714, 1999 CCH OSHD ¶ 31,822 (No. 96-0063, 1999). In those
matters, objective evidence came to light at later stages in the litigation. That evidence
challenged the reasonableness of the Secretary’s position that the charged employer had
violated the Act. The evidence relied upon by my colleagues in this matter does not rise
to the level set by the precedents. Indeed, it is not objective in any sense of the word.
Accordingly, I disagree with their decision to reverse the judge in part and find that the
Secretary was not substantially justified in proceeding with the litigation of this case.

As they note:

At an informal conference held at the OSHA area office in
St. Louis on March 26, 2004, about a month after the
inspection, Heck representative Jerry Brothers of Brittany
Inc. presented Leland Darrow, the CO’s supervisor and a
Strategic Team Leader at OSHA’s St. Louis office, with two
written statements from Houston and another employee,
Perry Walsh. In the statements, the employees maintained
that they were in the process of raising the scaffold at the
time of the inspection. Upon receipt of these statements,
Darrow reviewed the CO’s videotaped observations and
determined that Heck employees were not raising the
scaffold at the time of the inspection.

My colleagues believe, in essence, that two self-serving statements

, only
corroborated by each other at the time of the informal conference, allow them to second-guess the CO’s videotaped observations. This selective use of hindsight, draws a line in
ocean sand, always shifting, depending on how a case is later decided at trial. The key
issue, as described below, is whether or not the secretary was reasonable , not omniscient,
in continuing with her litigation. Unfortunately, the effect of the majority’s decision is
that both the Secretary and the employer must hereafter allocate additional resources and
incur additional costs in order for the Secretary to meet the Commission’s mandate that
she conduct interviews or take other affirmative action to test the validity of
unsubstantiated statements submitted by an employer in defense of a citation.

The EAJA only requires that the Secretary act reasonably. Pierce v. Underwood ,
487 U.S. 552, 565 (1988). It is not the Commission’s role to play Monday morning
quarterback by engaging in “ post hoc reasoning” when evaluating her justification for
proceeding with a case. Christiansburg Garment CO. v. EEOC , 434 U.S. 412, 421-22
(1978); see also Beck v. Ohio , 379 U.S. 89, 96 (1964) (courts must guard against being
“subtly influenced by the familiar shortcomings of hindsight judgment”). Although the
strength of the government’s position in the litigation obviously plays an important role
in a substantial justification evaluation, the reasonableness inquiry “may not be collapsed
into [an] antecedent evaluation of the merits, for EAJA sets out a distinct legal standard.”
Cooper v. United States R.R. Ret. Bd. , 24 F.3d 1414, 1416 (D.C. Cir. 1994) (internal
quotation marks omitted).

In this case, aside from the bald assertions made by Heck’s bricklayers, there was
no objectively reliable indication that employees were raising the scaffold. OSHA team
leader Darrow stated in his affidavit that, upon receipt of the written statements at the
post-citation informal conference, he reviewed the CO’s video and stills, which showed
at least one employee standing and walking on the scaffold near masonry supplies. He
saw none of the typical indicators that he would have expected to see in circumstances
where employees were raising a scaffold, such as upright extensions to support platforms
at a higher level. He showed photographic stills from the videotape to Heck’s
representative, who also acknowledged that he could not see any indication in the
depiction of the physical conditions at the site that employees were raising the scaffold.
The cited standard’s requirement for fall protection would apply to a bricklayer standing
and walking on a scaffold platform. Thus, the Secretary’s evaluation of her case at that
juncture was reasonable in both law and fact.

At the hearing, foreman Houston’s testimony regarding the method by which
Heck employees were raising the scaffold was vague and inconsistent. When questioned
about the conditions depicted in the videotape, Houston initially stated that employees
had already raised the platform on which bricklayer Cummisky stood and walked, but
later stated that the platform on which Cummisky stood was “where our material had
been, and everything had to be raised up.” Cummisky was similarly unclear in his
testimony. When shown photo stills from the videotape, he initially stated that they
showed him “conversing with a laborer about raising the boards … to the next level,” but
when asked how far along they were in raising the scaffold, he was unable to provide any
specificity and merely repeated: “We were raising the board. That’s all I know; raising
the boards.” At one point during his testimony when asked to describe scenes depicted in
photos from the video, his response was to state, “I don't really recall what we were
doing there.”

When the Secretary rested her case-in-chief, Heck moved to dismiss the fall
protection item. In denying the motion, the judge stated that the Secretary had “at least
set out a prima facia case that there were no guardrails,” and that the remaining issues
were whether the company was engaged in raising the scaffolding, and if so, whether the
standard applied in such circumstances. The Secretary’s reliance throughout the
proceedings on the compliance officer’s documented observations of the physical
conditions at the site over the unsubstantiated assertions of Heck’s employees was
reasonable even though the judge ultimately decided the weight of evidence against her.
As the judge stated in his decision denying Heck’s petition for an award under the EAJA,
“[t]he Secretary cannot be held accountable for not anticipating how the court would …
weigh the evidence.” Under these circumstances, I would find that the Secretary’s case
was “justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood ,
487 U.S. at 565. Accordingly, I dissent from the majority’s decision here to hold the
Secretary accountable for how the judge weighed the evidence in this case.

_/s/ _______

W. Scott Railton

Chairman

Dated: August 2, 2006

Secretary of Labor,

Complainant

v.

OSHRC Docket No. 04-0781

Martin C. Heck Brick Contracting Co.,

EAJA

Respondent.

Appearances:

Leigh Burleson, Esquire                                                 Donald W. Jones, Esquire, Esquire

Kathleen Butterfield, Esquire                                                        Hulston, Jones & Marsh

Office of the Solicitor      r                                                          Springfield, Missouri

U. S. Department of Labor                                                      For Respondent

Kansas City, Missouri

For Complainant

Before: Administrative Law Judge Ken S. Welsch

DECISION AND ORDER

DISMISSING EAJA APPLICATION

Martin C. Heck Brick Contracting Co. (MCHB) seeks an award for fees and
expenses in accordance with the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, 29
C.F.R. §2204.101, et seq ., which it incurred in its defense against repeat Citation No. 1,
alleging a violation of 29 C.F.R. § 1926.451(g)(1), issued on March 5, 2004. The
violation was vacated after a hearing by Decision and Order dated December 2, 2004.
The decision became a final order of the Review Commission on January 7, 2005.
MCHB’s application for fees and expenses, dated January 31, 2005, as amended in its
reply dated May 11, 2005, claims costs totaling $6,371.42.

For the reasons discussed, MCHB’s application is denied.

Background

In February 2004, MCHB, a masonry contractor, was engaged in laying bricks
and blocks to the exterior of a new addition to a bank in Troy, Missouri. On February 25,
2004, Occupational Safety and Health Administration (OSHA) Compliance Officer Larry
Davidson observed, from across the street of the bank, an employee of MCHB standing
on a supported frame scaffold approximately 21 feet above the ground. The scaffold
lacked guardrails, and the employee was not utilizing personal fall protection. Based on
the inspection, OSHA issued repeat and other-than-serious citations to MCHB on March
5, 2004. MCHB timely contested the citations.

Citation No. 1 alleged a repeat violation of 29 C.F.R. § 1926.451(g)(1) for failing
to protect an employee on a supported scaffold by guardrails from falling approximately
21 feet to the ground. The citation proposed a penalty of $2,000.00.

Citation No. 2, alleged an other-than-serious violation of 29 C.F.R. § 1904.40(a)
for failing to provide copies of OSHA Forms 300 and 330-A within four hours of their
request. The citation proposed a penalty of $400.00.

The hearing was held in St. Louis, Missouri, on September 2, 2004. By Decision
and Order dated December 2, 2004, Citation No. 1, alleging a repeat violation of
§1926.451(g)(1), was vacated. Citation No. 2, in violation of §1904.40(a), was affirmed
and a penalty of $200.00 was assessed.

On November 29, 2004, MCHB petitioned the Review Commission for
discretionary review. The Commission declined to review the case and the court’s
Decision and Order became final on January 7, 2005. MCHB then moved for an award
of fees and expenses under the EAJA on January 31, 2005. The Secretary filed her
answer in response to the EAJA application on April 7, 2005. MCHB filed its reply on
May 11, 2005. MCHB’s application, as amended, seeks attorney’s fees totaling
$5,306.25 plus expenses in the amount of $1,065.17

Equal Access to Justice Act

EAJA applies to proceedings before the Commission through §10(c) of the
Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. §651, et seq . The
purpose of the EAJA is to ensure that an eligible applicant is not deterred from seeking
review of, or defending against, unjustified actions by the Secretary of Labor. K.D.K.
Upset Forging Inc ., 12 BNA OSHC 1857, 1859 (No. 81-1932, 1986). An award of fees
and expenses under the EAJA is made to an eligible applicant who is the prevailing party
if the Secretary’s action is found to be without substantial justification and there are no
special circumstances which make the award unjust. Asbestos Abatement Consultation &
Engineering , 15 BNA OSHC 1252 (No. 87-1522, 1991). While the applicant has the
burden of persuasion to show that it meets the eligibility requirements, the Secretary has
the burden to establish that her position in the proceeding was substantially justified. See
Commission Rules, 29 C.F.R. §§ 2204.105 and 2204.106.

The Secretary argues that MCHB is not entitled to an award under the EAJA
because she was substantially justified in prosecuting the case; special circumstances
render an award unjust; and MCHB seeks fees and expenses unconnected or unrelated to
MCHB, or the matter it prevailed upon and in amounts above those allowable
(Secretary’s Answer, p. 2).

Eligibility

The party seeking an award for fees and expenses must submit an application
within thirty days of the final disposition in an adversary adjudication. 5 U.S.C.
§504(a)(2). There is no dispute that MCHB timely filed its application.

The party seeking an award must also meet the eligibility requirements.
Commission Rule 2204.105(b)(4) requires an eligible employer to be a “corporation. . .
.that has a net worth of not more than $7 million and employs not more than 500
employees.” Eligibility is determined as of the date the notice of contest was filed. See
Commission Rule 29 C.F.R. § 2204.105(c).

The record in this case shows that MCHB, a Missouri corporation, employed
approximately 15 employees in February 2004 (Tr. 229). MCHB’s EAJA application
provides financial information in the form of a balance sheet showing assets and
liabilities as of March 24, 2004, the date of the notice of contest.

The net worth
reflected in the balance sheet is substantially less than $7 million.

Although the balance sheet is not signed by the preparer, there is little doubt that
MCHB meets the eligibility requirements of the EAJA. The Secretary agrees that MCHB
is an eligible applicant (Secretary’s Answer, p. 2). Even if there was doubt about
MCHB’s eligibility, it is not necessary to require MCHB to file an amended balance
sheet because, as discussed, the Secretary was substantially justified in prosecuting this
case.

Prevailing Party

In the instant case, MCHB seeks EAJA based on the court’s vacating Citation No.
1, alleging a repeat violation of §1926.451(g)(1), by Decision and Order dated December
2, 2004. The Secretary agrees, and the record supports a finding that MCHB was the
prevailing party as to Citation No. 1 (Secretary’s Answer, p. 2). K.D.K. Upset Forging,
Inc. , 12 BNA OSHC 1856, 1857 (No. 81-1932, 1986).

Substantially Justified

In order for MCHB to be awarded costs under the EAJA, it must be determined
that the Secretary’s position in bringing this case was not substantially justified. “The
test of whether the Secretary’s action is substantially justified is essentially one of
reasonableness in law and fact.” Mautz & Oren, Inc ., 16 BNA OSHC 1006, 1009 (No.
89-1366, 1993). This reasonableness test comprises three parts. The Secretary must
show that: (1) there is a reasonable basis for the facts alleged; (2) there exists a
reasonable basis in law for the theory the Secretary propounds; and (3) the facts alleged
will reasonably support the legal theory advanced. Gaston v. Bowen , 854 F.2d 379, 380
(10 th Cir. 1988). There is no presumption that the Secretary’s position was not
substantially justified simply because she lost the case. The Secretary’s decision to
litigate does not have to be based on a substantial probability of prevailing. See S&H
Riggers & Erectors, Inc. v OSHRC , 672 F.2d 426, 430 (5 th Cir. 1982).

In this case, OSHA cited MCHB for a repeat violation of §1926.451(g)(1) which
provides:

Each employee on a scaffold more than 10 feet (3.1 m) above a lower
level shall be protected from falling to that lower level. Paragraphs
(g)(1)(i) through (vii) of this section establish the types of fall protection
to be provided to the employees on each type of scaffold. Paragraph
(g)(2) of this section addresses fall protection for scaffold erectors and
dismantlers.

The citation alleged that MCHB failed to protect an employee on a supported scaffold
approximately 21 feet above the ground level by a guardrail system.

In establishing her case, the Secretary relied on the observations and videotape of
Compliance Officer Davidson who testified that the employee was standing on the
scaffold. He testified he saw the employee stand facing the building a couple of minutes
and then saw him walk off the scaffold (Exh. C-1; Tr. 28, 79-80, 101). MCHB did not
dispute the scaffold lacked guardrails and that the employee on the scaffold was not
protected from falls by guardrails or a personal fall arrest system (Exhs. C-1, C-2).
Nothing in the videotape or Davidson’s interview of employees during his inspection on-site indicated the employee was in the process of raising the scaffold. The compliance
officer’s testimony was supported by his written inspection narrative (Exh. R-3;
Secretary’s Answer, Exh. 1). In adddition, it is noted MCHB’s counsel initially asserted
unpreventable employee misconduct and argued that the employee on the scaffold was
not working. Counsel claimed the employee was conversing with another person below
in preparation of the next day’s work (Secretary’s Answer, Exh. 2, Attachment B; Tr. 5).

Therefore, a reasonable basis existed for the facts alleged in the citation. Also,
those undisputed facts supported a violation of the requirements of § 1926.451(g)(1) . It
was not until after the citation was issued that MCHB argued that §1926.451(g)(1) did
not apply. In two employee statements prepared and furnished to OSHA by MCHB,
there was an indication the employees were in the process of raising the scaffold at the
time of OSHA’s inspection. Erecting and dismantling a scaffold is covered under
§1926.451(g)(2)

and not §1926.451(g)(1).

OSHA apparently discounted the employee statements since they came from
MCHB and instead relied upon the observations and videotape made by CO Davidson.
MCHB argues that OSHA should have conducted an additional inspection to confirm the
validity of the two employee statements. Although in hindsight this possibly should have
been done, it was not unreasonable for the Secretary to pursue the citation as issued. CO
Davidson observed no work being performed while the employee was standing on the
scaffold (Tr. 80). He observed no activity raising the scaffold. When Davidson spoke to
owner Martin Heck the next day to discuss the inspection findings and request the OSHA
300 log, there is no evidence that raising the scaffold was discussed (Tr. 56, 120).
According to CO Davidson, if someone had indicated the scaffold was being raised, he
would have evaluated the scaffold under §1926.451(g)(2) and a citation may still have
been issued for the lack of fall protection (Tr. 60). At the hearing, it became a issue of
credibility between CO Davidson’s observations and the employee’s testimony which
was resolved in favor of the employee testimony.

MCHB’s evidence at the hearing contradicted the conclusions drawn by
Davidson. MCHB’s journeymen bricklayers who were on the scaffold testified they
were preparing to raise the scaffold when Davidson initiated the OSHA inspection. They
testified the scaffold needed to be raised in order for them to continue laying blocks (Tr.
142, 180, 182). The bricklayers stated the guardrails were removed to allow them to
raise the walk boards (Tr. 149).

Unlike §1926.451(g)(1), which the Secretary cited, §1926.451(g)(2) permits an
employer to not require employees to utilize fall protection while erecting or dismantling
the scaffold if a competent person determines under the circumstances that the
installation of such fall protection is not feasible or would create a greater hazard.
Davidson agreed the guardrails in this case may have had to be removed to raise the
scaffold (Tr. 85).

After considering the factual dispute between the parties and weighing the
testimony of witnesses, it was determined the Secretary failed to establish the
applicability of §1926.451(g)(1) to the activities performed by the bricklayers at the time
of the OSHA inspection.

Despite not finding §1926.451(g)(1) applicable, it was reasonable for the
Secretary to accept Davidson’s observations and videotape in support of the alleged
violation. During the OSHA inspection, Davidson testified that neither MCHB’s
foreman nor the bricklayer told him they were in the process of raising the scaffold (Tr.
59-60). If he had been told, Davidson testified he would have made further inquiry to see
if fall protection was feasible. In addition to not being told, there was no indication to
Davidson the scaffold was being raised (Tr. 63). Along with the employee who was
merely standing on the scaffold, he observed water buckets, grout and blocks used to
make the wall were on the scaffold (Exh. C-2; Tr. 28, 30, 68, 146). It was reasonable for
Davidson to conclude that MCHB was still performing masonry work (Tr. 27, 104).

The decision in this case was resolved in favor of MCHB based on weighing the
evidence and the credibility of witnesses. In cases before the Commission, facts need to
be proven by a preponderance of the evidence, and evidence is considered persuasive if a
reasonable mind might accept it as adequate to support a conclusion. Capital
Tunneling Inc., 15 BNA OSHC 1304 (No. 89-2248, 1991). Based on her burden, the
Secretary was unable to show the scaffold was not being raised at the time of OSHA’s
inspection.

Although §1926.451(g)(2) applied to the conditions at the worksite, the Secretary
was substantially justified in prosecuting the case under §1926.451(g)(1). She had a
reasonable basis for the facts alleged based on the observations of the compliance officer
which were supported by a videotape. MCHB did not deny the employee was on the
scaffold without fall protection. MCHB did not tell OSHA during the inspection that it
was raising the scaffold. The facts alleged supported the legal theory advanced by the
Secretary that MCHB violated §1926.451(g)(1). Thus, a reasonable basis in fact and law
existed for the theory the Secretary propounded.

The EAJA is not read to deter the Secretary from prosecuting in good faith cases
which are reasonable in advancing the objective of workplace safety and health, if such
cases are reasonably supportable in fact and law. The facts forming the basis of the
Secretary’s position do not need to be uncontradicted. Also, credibility determinations
which are not resolved in favor of the Secretary do not render the Secretary’s position
unjustified. If reasonable persons fairly disagree whether the evidence establishes a fact
in issue, the Secretary’s evidence can be said to be substantial.

If the credibility determinations in this case had been resolved in favor of the
Secretary, as opposed to MCHB, the Secretary’s claim of violation would have been
supported. “[A] case which truly turns on credibility issues is particularly ill-suited for
the reallocation of litigation fees under the EAJA.” Consolidated Construction, Inc., 16
BNA OSHC 1001, 1006 (No. 89-2839, 1993). The Secretary’s failure to prevail in this
case does not constitute a lack of substantial justification. The Secretary cannot be held
accountable for not anticipating how the court would resolve credibility issues and weigh
the evidence.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is ORDERED that:

MCHB’s EAJA application for attorney fees and expenses is DENIED.

/s/ Ken S. Welsch

KEN S. WELSCH

Judge

Date: May 31, 2005