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The Original Roofing Company, LLC v. Chief Administrative Officer of Occupational Safety and Health Administration

Supreme Court of Nevada

June 6, 2019

THE ORIGINAL ROOFING COMPANY, LLC, Appellant,
v.
CHIEF ADMINISTRATIVE OFFICER OF THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DIVISION OF INDUSTRIAL RELATIONS OF THE DEPARTMENT OF BUSINESS AND INDUSTRY, STATE OF NEVADA, Respondent.

          Appeal from a district court order granting a petition for judicial review in which respondent challenged a Nevada Occupational Safety and Health Administration Review Board's decision to overturn a workplace safety citation on the basis that appellant employer lacked knowledge of the violative conduct at issue. Eighth Judicial District Court, Clark County; James Crockett, Judge.

          Marquis Aurbach Coffing and Thomas W. Stewart, Micah S. Echols, and Adele V. Karoum, Las Vegas, for Appellant.

          State of Nevada Department of Business and Industry, Division of Industrial Relations, and Salli Ortiz, Carson City, for Respondent.

          BEFORE HARDESTY, STIGLICH and SILVER, JJ.

          OPINION

          STIGLICH, J.

         When an employer challenges a citation issued for a workplace safety violation, Nevada's Occupational Safety and Health Administration bears the burden of establishing, as part of its prima facie case, all of the essential elements of the charged violation, including that the employer had actual or constructive knowledge of the violative conduct. A supervisor's knowledge that his or her own work practices violated safety laws (or the supervisor's knowledge that employees under his or her supervision were not complying with such laws) will not be imputed to the employer unless the supervisor's violative conduct was foreseeable. Because respondent did not demonstrate the employer's actual knowledge of the violative conduct or that the supervisor's violative conduct was foreseeable under the circumstances presented, we conclude the Review Board properly overturned the citation for lack of employer knowledge. We therefore reverse the district court's order granting judicial review.

         BACKGROUND

         In July 2015, a Compliance Safety and Health Officer for Nevada Occupational Safety and Health Administration (NOSHA) conducted a safety inspection at a jobsite in Henderson, Nevada. The inspector noted that an employee and a supervisor for appellant, The Original Roofing Company, LLC (TORC), were working on a steep roof without fall protection as required by federal regulation. See 29 C.F.R. 1926.50l(b)(11) (requiring all employees to use fall protection equipment when "on a steep roof with unprotected sides and edges 6 feet (1.8 m) or more above lower levels"), [1] Both the employee and the supervisor told the inspector that they received training from TORC on fall protection and knew they were required to use it on the steep roof on which they were working. Both men admitted they disregarded their training because they found it easier to accomplish their work without using the fall protection equipment.

         The inspector imputed knowledge to TORC that its employees were not utilizing fall protection because TORC's supervisor knew of, and engaged in, the violative conduct. NOSHA issued a citation against TORC for one violation of 29 C.F.R. 1926.501(b)(11).[2] TORC contested the citation in a letter to NOSHA, and respondent, the Chief Administrative Officer of NOSHA, then filed a complaint with the Nevada Occupational Safety and Health Review Board (Review Board).

         The Review Board held a hearing on the complaint and entered a written order, in which it concluded that respondent failed to demonstrate a violation of OSHA law. Specifically, the Review Board found that while the supervisor here ignored his training to undertake a task in violation of known safety regulations and allowed the employee under his supervision to do the same, respondent did not demonstrate that TORC knew of the violative conduct at issue. The Review Board concluded the supervisor's knowledge of his own violative conduct could not be imputed to TORC because respondent failed to demonstrate that the conduct was foreseeable in light of the evidence submitted by TORC pertaining to the company's efforts to ensure compliance with OSHA laws.[3]

         Respondent petitioned the district court for judicial review of the Review Board's order. The district court granted the petition and reversed the order, holding that the Review Board lacked sufficient evidence to support its factual findings and legal conclusions. TORC appealed.

         DISCUSSION

         Our role in reviewing an administrative agency's decision is identical to that of the district court-we review the agency's decision for clear error or an arbitrary and capricious abuse of discretion and will overturn the agency's factual findings only if they are not supported by substantial evidence. Elizondo v. Hood Mach., Inc., 129 Nev. 780, 784, 312 P.3d 479, 482 (2013). An agency's fact-based conclusions of law are entitled to deference when supported by substantial evidence; however, purely legal questions are reviewed de novo. Law Offices of Barry Levinson, P.C. v. Milko, 124 Nev. 355, 362, 184 P.3d 378, 383-84 (2008). "Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion." City Plan Dev., Inc. v. State, Office of Labor Comm'r, 121 Nev. 419, 426, 117 P.3d 182, 187 (2005).

         Pursuant to NAC 618.788, the Chief Administrative Officer of NOSHA carries the burden of proof in demonstrating a violation of OSHA law by establishing: (1) the applicability of the OSHA regulation; (2) noncompliance with the OSHA regulation; (3) employee exposure to a hazardous condition; and (4) the employer's actual or constructive knowledge of the violative conduct. See Atl. Battery Co., 16 BNA OSHC 2131, 2135 (No. 90-1747, 1994). The parties agree respondent established the first three elements of a prima facie violation of OSHA law in that 29 C.F.R. 1926.501(b)(ll) applied to TORC's roofing activities; the employee and the supervisor violated the regulation by failing to utilize fall protection; and the failure to utilize fall protection exposed TORC employees to a ...


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