Fields Excavating, Inc. v. Secreta Ry of Labor, Occupational Safety and Health Review Commission

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0305P (6th Cir.)
File Name: 04a0305p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FIELDS EXCAVATING, INC.,
Petitioner-Appellant,
v.
SECRETA RY OF LABOR,
OCCUPATIONAL SAFETY AND
HEALTH REVIEW
COMMISSION,
Respondent-Appellee.
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No. 03-3769
On Appeal from the Occupational Safety
and Health Review Commission.
Nos. 01-0447; 01-0975.
Argued: August 13, 2004
Decided and Filed: September 9, 2004
Before: KEITH, MARTIN, and ROGERS, Circuit Judges.
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COUNSEL
ARGUED: Douglas J. Segerman, McFADDEN, WINNER
& SAVAGE, Columbus, Ohio, for Petitioner. Charles F.
James, UNITED STATES DEPARTMENT OF LABOR,
2 Fields Excavating v. Sec’y of Labor No. 03-3769
Washington, D.C., for Respondent. ON BRIEF: Douglas J.
Segerman, James S. Savage III, McFADDEN, WINNER &
SAVAGE, Columbus, Ohio, for Petitioner. Charles F. James,
Ann Rosenthal, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent.
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OPINION
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ROGERS, Circuit Judge. Fields Excavating, Inc. (“Fields”)
petitioned for review of a final order of the Occupational
Safety and Health Review Commission (the “OSHRC”)
affirming two citations for willful violations of the excavation
safety standard set forth at 29 C.F.R. § 1926.652. Because
the findings of the Administrative Law Judge (“ALJ”) in
upholding the citations were supported by substantial
evidence, we deny Fields’ petition for review.
Fields was issued two citations for failing to comply with
the safety requirements for trench excavations. The first
citation was issued after Occupational Safety and Health
Administration (“OSHA”) representatives inspected a Fields
worksite at Havener Road in South Webster, Ohio, and found
that Fields failed to slope the trench properly as required by
OSHA regulations. The second citation was issued after
OSHA representatives inspected a Fields worksite in Xenia,
Ohio, and found Fields employees working in a trench
without the equipment necessary to protect workers in the
event of a cave-in. In both cases, the violations were
considered willful.
Fields contested the citations and a hearing on both matters
was held before an ALJ. The ALJ affirmed both citations and
assessed penalties. The ALJ’s decision became the final
decision of the OSHRC when the OSHRC denied Fields’
petition for review. Fields then appealed to this court for
review of the OSHRC final order. Fields challenges the

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No. 03-3769 Fields Excavating v. Sec’y of Labor 3
ALJ’s determinations that the Havener Road site was
inadequately sloped, that both violations were willful, and
that the violation at the Xenia Road site was not caused by
unforeseeable employee misconduct.
In reviewing decisions of the OSHRC, the court will
uphold the OSHRC’s findings of fact so long as they are
supported by substantial evidence. See 29 U.S.C. § 660(a);
CMC Elec., Inc. v. OSHA, 221 F.3d 861, 865 (6th Cir. 2000).
Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. The substantial evidence test protects both
the factual findings and the inferences derived from
them, and if the findings and inferences are reasonable on
the record, they must be affirmed even if this court could
justifiably reach a different result de novo.
Nat’l Eng’g & Contracting Co. v. Herman, 181 F.3d 715,
721 (6th Cir. 1999) (internal quotations omitted).
Having had the benefit of oral argument and having studied
the record on the petition for review, the briefs of the parties,
and the applicable law, we are persuaded that the decision of
the OSHRC was supported by substantial evidence. The
Decision and Order of the ALJ demonstrates the presence of
substantial evidence in the record to support each of the
citations, and adequately refutes the arguments made in the
petition for review. See Fields Excavating, Inc., 20 O.S.H.
Cas. (BNA) 1203, 2003 OSAHRC LEXIS 31 (2003). The
issuance of a further detailed written opinion by this court
would therefore be largely duplicative and serve no useful
purpose. Accordingly, we DENY the petition for review
based upon the reasoning set out in the Decision and Order of
the ALJ.

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