# Petition for Writ of Certiorari — Burriss Electrical, Inc. v. Office of Occupational Safety and Health (No. 08-1251)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

vs fig) Supreme ( Court, U.S.

081251 APR 7 - 2009

In THOFFICE OF THE CLERK

SUPREME COURT OF THE UNTIED STATES

Burriss Electrical, Inc ........... Petitioner,

Occupational Safety and Health, South
Carolina Department of Labor ............
Respondent.

On Petition for Certiorari to the Supreme
Court of the State of South Carolina

PETITION FOR A WRIT OF CERTIORARI

_—

Charles F. Thompson, Jr.
Malone, Thompson & Summers
339 Heyward Street

Columbia, S.C. 29201
803-254-3300

Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

1) Did the South Carolina Court of Appeals
err in finding that Burriss knowingly violated OSHA
and deliberately subjected employees to serious risk
of harm based on a prior OSHA citation that had
been withdrawn and involved very dissimilar facts?

2) Did the South Carolina Court of Appeals
ignore uncontested evidence that Burriss had no
appreciation of the OSHA standards, or the danger,

and therefore could not have willfully violated
OSHA?

3) Did the South Carolina Court of Appeals
incorrectly find that Burriss deliberately ignored
OSHA when, in fact, the uncontroverted evidence is
that Burriss was very careful about the safety issues
it knew about?

1)

2)

List of Parties

Burriss Electrical, Inc. Burris Electrical Inc.
has no parent corporation and no publicly held
company owns 10% or more of Burris
Electrical Inc.

Occupational Safety and Health, South
Carolina Department of Labor

TABLE OF CONTENTS

Questions ii hig Greg e eeeke Gae i
I 80s oy oe ee oes eee ii
po | er re rer er eer Trees Te 1
Tet OF GORANI. 6 occ ce ccs besawan 2
CE ieee heen eee ae eues 3
hee ab eee Ne ca yee eee 4
Statutes Involved in the Case.................. 5
Staten GEG CARGO ck a hein Veen ees 5
Argument: Reasons Why Certiorari Should be
I ioe cieivnis stata hae ee oe eS
CE ace cS eee eee 17
RE Cw cs 5 nb ae See 18

1. Order of the South Carolina Court of
Appeals

2. Order of the South Carolina Supreme
Court

TABLE OF AUTHORITIES

Cases

A.E. Staley Mfg. Co. v. Secretary of Labor, 295 F.3d
1341 (D.C. Cir. 2002) givkoiierbiestiebutin i
Donovan v. Mica Const. Co., 699 F.2d 431 (8th Cir.
RE ia vies Saauguisuihcenindvesueiiceceiuidanisneeue 11
McKie Ford, Inc. v. Secretary of Labor, 191 F.3d 853
ee ee SI itiuis ds bes ented eiceeeaesiheceus laa 11
St. Joe Minerals Corp. v. Occupational Safety and Fealth
Review Com'‘n 647 F.2d 840, 845 -846 (C.A.8, 1981)....6
Valdak Corp. v. Occupational Safety and Health

Review Com'n, 73 F.3d 1466 (8th Cir. 1996)....... 11
Wright and Lopez, Inc., 8 BNA OSHC 1261, 1980 CCH

OSHD f 24,419 (No. 76-3743, 1980)..................2008. 10
Statutes
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Sree FA Wk EI ICE ie civ ceticsictstdcccscecsancoscavenel 7
Se 0 1, PAE I I Ei cousin covecsssassconncseeseneaets 8
PEPIN Fh RN IED a civvcevcnnycisdssecdsavecesanchanen 8
CR AMOME Oy. 04d HU BOE I opnisvesaveccvessnvescnsscechcuns¥eneed 8
SR PEEEy CE, 2X ROE RODD ons cnte sec sascsccestestcennesartens 8

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OPINIONS BELOW

The opinion of the South Carolina Court of
Appeals is unpublished and is reprinted in the
Appendix hereto.

The order of the South Carolina Supreme
Court denying certiorari is unreported and is
reprinted in the Appendix hereto.

JURISDICTION

This matter was originally heard before an
administrative tribunal of the state of South
Carolina. Under the Occupational Safety and
Health Administration Act, South Carolina
administers OSHA as opposed to the federal
Department of Labor. The tribunal issued its
decision on January 1, 2004 finding in favor of S.C.
OSHA.

Under South Carolina law at the time, appeal
was to a State circuit court. Burris Electrical
appealed. A hearing was held and the circuit court
issued its decision on August 3, 2006 upholding the
decision on the tribunal.

Burris Electrical appealed to the South
Carolina Court of Appeals and that court issued its
decision affirming the circuit court on January 23,
2008 and denied Burris Electrical’s Petition for
rchearing on April 18, 2008.

Burris Electrical filed a writ of certiorari to

have the decision of the Court of Appeals reviewed
by the Supreme Court of South Carolina. The South

Carolina Supreme Court denied the writ, without an
opinion, on January 8, 2009.

This Court has jurisdiction to hear the final
decision of the Supreme Court of the State of South
Carolina.

STATUTES INVOLVED IN THE CASE
(a) Willful or repeated violation

Any employer who willfully or repeatedly violates
the requirements of section 654 of this title, any
standard, rule, or order promulgated pursuant to
section 655 of this title, or regulations prescribed
pursuant to this chapter may be assessed a civil
penalty of not more than $70,000 for each violation,
but not less than $5,000 for each willful violation.

29 U.S.C.A. § 666 (1990)

“Willful violation is nowhere defined in the Act, and
the legislative history is sketchy. Thus, the
Commission and the courts are charged with
determining the meaning of willfulness in light of the
policy and framework of the Act.”

St. Joe Minerals Corp. v. Occupational Safety and Health
Review Com'n 647 F.2d 840, 845 -846 (C.A.8, 1981).

STATEMENT OF THE CASE

Bad facts make for bad law. This Petition
concerns a narrow but extremely important question

about how OSHA violations should be classified.
The lower courts in this case have let the tragic
nature of the underlying facts cheapen the most
egregious classification of “willful violation” and
thereby unfairly blacken the name of the Petitioner.
If the lower decisions in this case are allowed to
stand then a willful violation will be found anytime
an employer does not consult the proper OSHA
standards and willful can be based on prior citations
even though the prior citations was withdrawn by
OSHA and arose from very dissimilar facts. Instead,
the highest regulatory condemnation should be
reserved for cases in which the employer knowingly
violated the law or, by its conduct, demonstrates it
would have violated the law even if it had been
aware of it.

A “willful violation” should be (and _ is)
reserved for employers who either knowingly violate
OSHA or for employers who unknowingly violate
OSHA but the evidence shows they would have
violated it even if they had known of OSHA
requirements. The only evidence in this case is that
Burriss made mistakes that led to a deadly accident.
Burriss never would have willfully violated OSHA
and never would have deliberately exposed its
employees to a dangerous risk.

Burriss is a small, family-run, minority-run,
electrical systems company. Burriss was the
electrical contractor for the building of the
Blythewood High School in Blythewood, South
Carolina in 2002 and 2003. (R. 28, Hearing Tr. 10).

On January 28, 2003 Burriss Electrical was
digging a trench for electrical conduit at the
Blythewood site. The trench was eight foot deep and
was far deeper than any trench Burriss had ever

dug. The operation was being supervised by a
foreman that had no experience in ditches this deep.
On the morning of January 28, several Burriss
employees were working in the trench when a
portion of the. trench wall collapsed. The cave-in
partially buried two of the employees and caused
their deaths. (R. 32, Hearing Tr. 14).

Unbeknownst to Burriss, the trench was
unsafe under OSHA standards for several reasons.
First, OSHA requires a trench over four foot deep to
have the side walls either sloped back or protected
from collapse by a protective box. Second, OSHA
requires a “competent person” (one trained on how to
apply OSHA trenching rules) to inspect the trench
daily. Finally, OSHA requires certain means of
escape no at issue in this case.

Burriss Electrical is owned by Christie
Burriss. The project manager for Burriss Electrical
is her husband Tommy Burriss. (R. 77, Hearing Tr.
59). Mr. Burriss is the only management level
employee in the company in charge of production.
He relies on superintendents at each job site to
manage day to day operations. (R. 77, Hearing Tr.
59). Mr. Burriss visits each site approximately once
a week. (R. 77, Hearing Tr. 59).

It is uncontested that the Burriss Electrical
rarely faced safety issues other than fall-protection
and electrocution. (R. 80-81, Hearing Tr. 62-63).
Burriss Electrical provided safety training on these
issues. (R. 80, Hearing Tr. 62). Other than minor
scrapes, the only significant injury a_Burriss
employee ever suffered was to fall and break an
elbow. (R. 80, Hearing Tr. 62). This occurred some
ten years prior to the cave-in. (R. 80, Hearing Tr.
62).

6

Burriss Electrical had never before dug a
trench greater than two to four feet deep. (R. 81,
Hearing Tr. 63). OSHA’s investigator even admitted
that the trench at the Blythewood cite was
unprecedented for Burriss Electrical. (R. 70,
Hearing Tr. 52). In fact, Mr. Burriss had no idea
that the Blythewood employees had dug the trench 8
feet deep and was “extremely shocked” when he saw
the ditch for the first time. (R. 84, Hearing Tr. 66).
Notably, Mr. Burriss was anticipating the trench
was only going under a three foot foundation. (R. 83,
Hearing Tr. 65). If he had known the digging was
eight feet deep, Mr. Burriss would have stopped the
work and consulted someone with experience in
trenching. (R. 85 Hearing Tr. 67). It is uncontested
that neither Mr. Burriss nor Burriss_ Electrical
(including the supervisor at the Blythewood site) had
experience in trenching deeper than four feet and
were unaware of the OSHA regulations requiring
sloping or protective devices for trenches in excess of
four feet. Likewise, they were not aware of the need
to have a “competent person” (as defined by OSHA
regulations) inspect the trench. (R. 85-87, Hearing
Tr. 67-69).

The accident was simply a tragic accident
born of a lack of knowledge about proper trenching
techniques. There was not one shred of evidence
that anyone with Burriss knew of the OSHA
trenching standards or proceeded despite knowing of
the danger.

Following an inspection of the cave-in,
Complainant issued two citations consisting of five
violations:

Citation 4

1. SCCR 71, 1-1926.651(k)(1) Failure to make
daily inspections of excavations ... by a
competent person,

Citation 3

1. SCCR 71, 1926.21(b)(2) Failure to instruct
each employee [on proper trenching] . . . no
trench hazard recognition and avoidance
safety training provided to employees in
trench in excess of 7 feet deep .. ..

2. SCRR 71, 1-1926.100(a) Failure to require
employees working in areas where there is a
possibility of head injury .. . no protective
helmets worn by 4 employees in trench in
excess of 7 feet deep at Building C area.

3. SCRR 71, 1-1926.651(c)(2) Failed to locate
a stairway, ladder, ramp or other safe means
of egress in trench excavation...

4. SCCR 71, 1-1926.652.(a)(1) Failed to
protect each employee in an excavation from
cave-in by an adequate protection system
fand] SCCR 71, 1-1926.652(b)(1)(i) Failed to
slope excavations at an angle not steeper than
one and one-half horizontal to one vertical...

Following the accident, Burriss Electrical fully
cooperated with OSHA and spent considerable
resources improving its safety program. Burriss
destroyed the trench where the accident occurred

and started over with a new trench that exceeded
OSHA standards. (R. 117-123, Hearing Tr. 101-107).

Burriss Electrical did not contest the validity
of any of the citations and did not contest the
classifications of any of the violations within citation
3. The sole issue contested by Burriss Electrical was
the classification of citation 4 as “willful.”

The Trial Court: ‘The trial court found
willfulness based on evidence that Burriss could
have know of the proper safety standards, should
have. known of them, and had the opportunity to
learn of the appropriate standards. (R 15-17, Order,
pp. 5-7). That court flat ignored the requirement
that it find a knowing violation or that Burriss
proceeded in the face of an appreciated risk. In
addition to misapprehending the appropriate legal
standard, the trial court got very sidelined with an
incorrect perception that Burriss was trying to plead
ignorance as a defense to a finding of willfulness.
The real task, which the trial court ignored, was to
find evidence that Burriss would have proceeded
even if it knew of the applicable safety standards.
The only evidence cited by the trial court that came
close to addressing the OSHA’s unmet burden is
evidence that Burriss Electrical was cited in the past
for not having a competent person. As explained
below, however, this could not be used to support a
finding of willfulness.

The trial court also misapprehended Tommy
Burriss’ testimony as an admission that he knew
(prior to the accident) that his foreman was not a
“competent person” as that term is defined under the
OSHA regulations. In addition the trial court
incorrectly noted as important that Burriss had

opportunity to learn of the trench condition. (R. 16,
Order p. 6). Finally, the trial the court
misapprehended that Mr. Burriss had knowledge
before the accident that the trench was “dangerous”
and “horrifying.” (R. 16, Order p. 6).

The Court of Appeals: The Court of
Appeals continued the errors of the trial court. That
court affirmed the trial court by agreeing that the
prior citation could be used as evidence that Burriss
did know of the requirement to have a competent
person on trenching. Like the trial court, the Court
of Appeals also ignored the uncontested evidence
that Burriss clearly did not know the technical
meaning of “competent person” nor was it aware of
the danger and therefore could not have willfully
violated OSHA. The Court of Appeals disregarded
caselaw making clear that, before a prior incident
could be used to find a willful violation, it must
involve similar factual circumstances. Finally, the
Court of Appeals was clearly wrong in finding that
Burriss ignored OSHA safety standards.

ARGUMENT

The Court Incorrectly Used a Prior Citation as
Evidence that Burriss Knew of the
Requirement for a Competent Person on
Trenching

The touchstone of the court of appeal’s
decision is that Burriss knew of the OSHA
“competent person” standard prior to the 2003
accident because Burriss had been cited, and had not

10

appealed, a citation for the same standard in 2000.
The court reasoned that, therefore, Burriss had
opportunity to learn the standard, should have
known the standard and therefore was consciously
indifferent toward it.’ There are several critical
errors in this chain of logic.

First, Burriss did appeal the 2000 “competent
person citation.” The court of appeals mistakenly
found that Burriss only appealed a citation for a
scaffolding issue that was issued by OSHA at the
same time. However, both citations were issued
under the same “Report Number 0185-01.” (R. 168).
By letter dated September, 20, 2000, Burriss clearly
appealed “Report Number 0185-01.” (R. 170).
Uncontestably, this included both citations and
therefore both citations were appealed.

What happened next is also irrefutable. The
competent person citation disappeared and was
neither discussed, nor pursued by OSHA, nor
incorporated in the settlement agreement that
resolved Burriss’ appeal. (R. 165). The testimony
makes this clear as well. OSHA never discussed the
competent person citation with Burriss. The entire
focus was on the scaffolding citation. (R. 87-89,
Hearing Tr. 69-71). The competent person citation
was not discussed in the informal conference, nor in
the settlement discussions, and was dropped from,
and played no part in, the settlement agreement. (R.
86, Hearing Tr. 68); (R. 87-89, Hearing Tr. 69-71, R.
161, Ex. 1).

It is outrageous that the court of appeals
bases a willful finding on a citation that was dropped
by OSHA. In basing its decision finding a willful
violation based on a prior citation that was dropped
by OSHA, the court is effectively using a dismissed

charge as a prior conviction. This must be incorrect
or else OSHA could always establish willfulness by
simply charging employers with baseless allegations
and then withdrawing them. It is denial of a
fundamental fairness to use prior charges against
employers when those charges are dropped or
dismissed.

Even If The Court of Appeals Could Consider
the Prior Charge, There is Still No Evidence
that Burriss Intentionally Avoided Knowledge
or Consciously Disregarded the Standard

Even if the court could have properly
considered the withdrawn charge, it inappropriately
concluded that Burriss intentionally disregarded this
notice of the proper standard. Despite correctly
noting that a simple “indifference” to the prior
charge or notice of the standard was not enough to
support a finding of willfulness,! the court of appeals
found that Burriss “intentionally disregard{ed]” that
knowledge.

There was no. evidence of intentional
disregard of the standard. In fact, the evidence
makes clear that Burriss simply did not know about
and did not understand the competent person
standard.

Q: Did you know anything about the OSHA
trenching standards?

an Employer's mere familiarity with the requirements of an applicable
standard does not, in itself, establish willfulness.” Wright and Lopez,
Inc., 8 BNA OSHC 1261, 1980 CCH OSHD 24,419 (No. 76-3743,
1980).

A: No

Q: Did you know what a competent person
meant?

A: No.
(R. 85, Hearing Tr. p. 67).
Q: I didn’t remember the one that addressed

the competent person. I remember the one
that addressed the scaffolding issue.

(R. 86, Hearing Tr. p. 68)

A: Basically, the way I interpreted it at the
time of this document and before the
accident that we did not have a competent
person on site ... now that I know what a
competent person definition is by OSHA
and my definition are two different things

(R. 97, Hearing Tr. p. 79).

OSHA did not introduce any evidence to
refute Mr. Burriss testimony on this point. In fact,
OSHA itself is to blame for Mr. Burriss’s failure to
understand or appreciate the prior standard because
OSHA paced no emphasis upon it and dropped the
citation from the report. Had OSHA emphasized
this charge, or had at least not dropped it, it is likely
that Mr. Burriss would have noticed it, appreciated
it, and taken action to correct it.

There is flatly no evidence that Burriss
ignored knowledge gained from a prior citation. The
court of appeals did not cite a single piece of evidence
to support this conclusion.

The Court Failed to Address the Fact that the
Prior Citation Could Not Be Used as Notice
Because tne Factual Circumstances Were
Entirely Different

The court of appeals hinged its decision on the
prior citation for failure to provide a competent
person. However, courts have uniformly held that,
for a prior incident to support a willful finding, the
prior incident must clearly demonstrate, to the
employer, the danger to be avoided. The court of
appeals completely ignored this argument. See
Donovan v. Mica Const. Co., 699 F.2d 431 (8th Cir.
1983) Gob foreman was aware of the prior cave-in
and nevertheless instructed work to _ proceed,
however, there was insufficient evidence of the
nature and extent of the prior cave-in); A.E. Staley
Mfg. Co. v. Secretary of Labor, 295 F.3d 1341 (D.C.
Cir. 2002) (Willful violation found based on plain
indifference where employer was aware that
prisoner had been repeatedly injured by the same
inmate before and took no action to prevent a
recurrence); McKie Ford, Inc. v. Secretary of Labor,
191 F.3d 853 (8th Cir. 1999) (Willful violation
through plain indifference found where employer
knew employees were using a freight-only elevator
and one employee had been injured on the freight
elevator before); Valdak Corp. v. Occupational Safety
and Health Review Com'n, 73 F.3d 1466 (8th Cir.
1996) (Willful violation through plain indifference
found where employer knew that a safety device was
broken and knew that the safety device was the only
thing that prevented the injury involved).

The court ignored this argument probably
because the evidence that was presented makes
clear that the prior citation (even if it had not been
withdrawn) was completely dissimilar to the
Blythewood situation. The prior trench did not
involve a danger to employees, was not under the

14

same circumstances, was a shallow trench, OSHA
did not discuss the citation with Burriss, imposed no
penalty, and OSHA dropped the citation from the
final settlement. Therefore, the prior situation was
completely unlike the Blythewood situation and,
therefore did not put Burriss on nctice of the danger.

The Court Erred in Finding that Burriss Made
No effort to Aquaint Itself with Safety
Standards

The court of appeals also erred in finding that
there was evidence that Burriss made no effort to
acquaint itself with safety standards. To the
contrary, the record is clear that Burriss was well
aware of the dangers common to its operations, e.g.,
electrocution and fall protection. It is uncontested
that the Burriss Electrical rarely faced safety issues
other than fall-protection and electrocution.

Q: Before this accident, What were your
primary concerns about safety?

A: I would say fall protection and
electrocution.
A: .. . We had training on fall protection. We

discuss heat related injuries and [ would visit

the jobsites a lot of times and would

communicate to the guys, say I feel there’s a

potential issue here...
(R. 80-81, Hearing Tr. 62-63).

In fact, there was no evidence submitted by
OSHA that Burriss was unaware of other OSHA
regulations. The trial judge and the court of appeals
misread the testimony on this point. What the

1S

OHSA witness testified was that Burriss was
unaware of the trenching standards. (R. 70). Thus,
the court of appeals and the trial court, erred in
finding Burriss was not aware of the regulations or
safety standards in general.

CONCLUSION

What the court of appeals has done is to
cheapen the willful classification and make it
applicable based on a prior citation even though that
prior citation was withdrawn and was completely
disimilar. The decision also makes the willful
classification apply to any case in which the
employer could have learned of the applicable OSHA
citation and failed to do so. This would make it
applicable in any case. Instead, this Court should
correct this misapplication and re-establish that
willful only applies when an employer deliberately
violates OSHA or the evidence is such that, even if it
had known of the correct OSHA standard, it would
have violated it anyway.

Respecifully submitted

Charles F. Thompson, Jr.
Malone, Thompson, Summers & Ott
339 Heyward Street
Columbia, S.C. 29201
803-254-3300
Attorney for Appellant
May 7, 2008

16

APPENDIX

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Burriss Electrical, inc., Appellant,
Vv.

Office of Occupational Safety and Health, South
Carolina Department of Labor, Licensing and
Regulation, Respondent.

Appeal From Lexington County
Clyde N. Davis, Jr., Circuit Court Judge

Unpublished Opinion No. 2008-UP-070
Submitted January 2, 2008 — Filed January 23, 2008

AFFIRMED

Charles F. Thompson, ie. of Columbia, for
Appellant.

Joseph N. Connell, of Lugoff, for Respondent.

PER CURIAM: Burriss Electrical, Inc. (Burriss)
appeals from a South Carolina Occupational Safety
and Health Review Board (the Review Board)
decision finding Burriss in willful violation of the
South Carolina Occupational Safety and Health
Regulation 71, 1-1926.651(k)(1)(1991)[1]. After two
employees were killed when a vertical wall of an
earthen trench collapsed, the Office of Occupational
Safety and Health in the South Carolina
Department of Labor, Licensing and Regulation (the

17

Department) cited Burriss for four serious violations
and one willful violation of the South Carolina
Occupational Safety and Health Regulation (the
Act). Burriss appeals the citation for the willful
violation, arguing that (1) the Review Board
misapplied the legal standard for willful conduct in
reaching a finding of willfulness; and (2) under an
appropriate application of the standard there exists
no substantial evidence to support a finding Burriss
committed a willful violation. We affirm.[2]

FACTS

Burriss is an _ electrical systems contractor.[3]
During 2002 and 2003, Burriss served as the
electrical contractor for the building of the
Blythewood High School in Blythewood, South
Carolina. At the Blythewood site, Burriss dug a
trench approximately 121 feet long in order to install
feeder conduit for power and data communications
underneath the building. Roughly eighty feet of the
trench measured from six to eight feet deep, making
that portion of the trench wall essentially vertical.

On the morning of January 28, 2003, a portion of the
trench wall collapsed on several Burriss employees
working in the trench. The cave-in partially buried
two of the employees and caused their deaths. The
Department sent an inspector to conduct a fatality
inspection of Burriss’ Blythewood site. As a result of
the inspection, Burriss was cited for four serious
violations (Citation 3 parts 1, 2, 3, and 4) and one
willful violation (Citation 4).[4] The violations are as
follows:

Citation 3 (Serious)

1. SCCR 71, 1-1926.21(b)(2) - Failure to instruct each

employee in the recognition and avoidance of unsafe
conditions. . . no trench hazard recognition [or]
avoidance safety training provided to employees in
trench in excess of 7 feet deep...

2. SCCR_ 71, 1-1926.100(a) - Failure to require
employees working in areas where there is a
possibility of head injury ... to be protected by
helmets [in that] . . . no protective helmets [were]
worn by 4 employees in [a] trench in excess of 7 feet
deep...

3. SCCR 71, 1-1926.651(c)(2) - Failed to locate a

stairway, ladder, ramp or other safe means of egress
in trench excavation that are 4 feet or more in depth

4. SCCR 71, 1-1926.652(a)(1) - Failed to protect each
employee in an excavation from cave-in by an
adequate protection system [and] SCCR 71, 1-
1926.652(b)(1)G) - Failed to slope excavations at an
angle not steeper than one and one-half horizontal to
one vertical...

Citation 4 (Willful)

1. SCCR 71, 1-1926.651(k)(1) - Failure to make daily
inspections of excavations . . . by a competent person
for evidence of a situation that could result in
possible cave-ins,...

A competent person is defined by the Act as:

[O]ne who is capable of identifying existing and
predictable hazards in the surroundings, or working
conditions which are unsanitary, hazardous, or
dangerous to employees, and who has authorization

19

to take prompt corrective measures to eliminate
them. In order to be a competent person for the
purpose of this standard one must have had special
training in, and be knowledgeable about soils
analysis . . . the use of protective systems, and the
requirements of this standard.

S.C. Code Regs. 71, 1-1926.650(b) (1991).

Burriss filed a notice of protest and a hearing was
held before a single Review Board member. At the
hearing, Burriss did not contest the four serious
violations under Citation 3. The only issue before
the Review Board member was the classification of a
willful violation under Citation 4.

At the hearing, Tommy Burriss testified he had been
to the Blythewood site a week prior to the excavation
of the trench. He stated it was his understanding
the trench was to be just over three feet deep. He
further testified when he finally saw the trench on
the day of the cave-in he was “extremely shocked to
see that ditch that deep.” He said “[i]t was
horrifying” and “dangerous.” He stated that had he
been at the site he “would have told people to get out
of {the] ditch . . . [t]here’s just no way [he] would
have exposed anybody to that.”

When asked whether, at the time of the cave-in, he
was aware of the Act’s trenching regulations
requiring a competent person to perform daily
inspections, Tommy Burriss stated he was not aware
of the regulations, nor did he have a copy of the
OSHA standards, general standards, or construction
standards. Yet, Tommy Burriss was questioned
about an August 2000 citation issued at a Burriss’
worksite at Stivers’ Jeep. Burriss had both erected

20

scaffolding and dug a trench at the Stivers’ Jeep
worksite. With respect to the scaffolding, the
Department cited Burriss for failure to install a
guardrail along the sides and end of the scaffolding
platforms, classified the violation as “serious,” and
proposed a $300 fine. With respect to the trench, the
Department cited Burriss for failure to perform daily
inspections by a competent person pursuant to
Regulation 71, 1-1926.651(k)(1) of the South
Carolina Code. The Department classified the
violation as “other than serious” and did not impose
a fine therefor. Burriss protested the citation for the
scaffolding violation and eventually entered a
settlement agreement wherein Burriss agreed to pay
a $120 fine and “provide refresher training for its
employees in fall protection.” But, because no
penalty was proposed for the citation for the trench
violation, Burriss did not protest the trench
violation.

Tommy Burriss admitted he read the Stivers’ Jeep
citation for lack of a competent person. Yet, at the
time of the Blythewood site accident, Tommy Burriss
testified he maintained the belief his _ site
superintendant, David Marshall was “a competent
person upon my definition.” He admitted at the
hearing, in hindsight, “now I know what a competent
person definition is by OSHA and my competent
person definition are two different things.”

The Review Board member upheld the “willful”
classification in Citation 4. Burriss filed a petition
for review by the entire Review Board. The petition
was denied. Burriss then appealed the matter to the
circuit court. The circuit court affirmed the Review
Board’s denial of discretionary review as well as the

Review Board member’s order upholding the citation
and corresponding penalty. This appeal follows.

STANDARD OF REVIEW

This court’s review of an administrative agency’s
findings of fact is limited. The court “shall not
substitute its judgment for that of the agency as to
the weight of the evidence on questions of fact” when
those facts are supported by substantial evidence.
S.C. Code Ann. §1-23-380(A)(6) (2005){5]; Dorman v.
Dep’t of Health & Envtl. Control, 350 S.C. 159, 164-
65, 565 S.E.2d 119, 122 (Ct. App. 2002). In
determining whether the agency’ decision was
supported by substantial evidence, this court need
only find, looking at the entire record on appeal,
evidence from which reasonable minds could reach
the same conclusion that the administrative agency
reached. DuRant v. S.C. Dep’t of Health & Envtl.
Control, 361 S.C. 416, 420, 604 S.E.2d 704, 706-07
(Ct. App. 2004). The mere possibility of drawing two
inconsistent conclusions from the evidence does not
prevent a _ finding from being supported by
substantial evidence. Id. at 420, 604 S.E.2d at 707.
Further, the burden is on the appellant to prove
convincingly that the agency’s”. decision is
unsupported by the evidence. See Waters v. S.C.
Land Res. Conservation Comm’n, 321 S.C. 219, 226,
467 S.E.2d 913, 917 (1996).

A court can reverse an agency’s findings, inferences,
conclusions, or decisions if they are “clearly
erroneous in view of the reliable, probative and
substantial evidence on the whole record,” or
“arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of

discretion.” S.C. Code Ann. §1-23-380(A)(6) (2005).
Further, a court may reverse where an agency’s
decision is affected by an error of law. Id.

LAW/ANALYSIS

Burriss asserts the circuit court misapplied the legal
standard for a willful violation and argues, under an
appropriate application of the standard, there is no
substantial evidence to sustain a citation for a
willful violation of the Act. We disagree.

The Act itself does not define “willful” nor has this
court had an opportunity to interpret its meaning.
In its decision, the Review Board member defined a
wilful violation as “committed voluntarily with
intentional disregard or demonstrated plain
indifference to the Act,” citing Occupational Safety
and Health Law, Mark A. Rothstein, West’s
Employment Law Series, St. Paul, Minn. 1998,
§315. See also Valdak Corp. v. Occupational Safety
and Health Review Comm’n, 73 F.3d 1466, 1468 (8th
Cir. 1996) (finding to support a classification of
“willful” there must be substantial evidence the
employer, intentionally disregarded or was plainly
indifferent to the requirements of the Act);
Intercounty Constr. Co. v. Occupational Safety and
Health Comm’n, 522 F.2d 777, 780 (4th Cir. 1975),
cert. denied, 423 U.S. 1072 (1976). When faced with
a problem of statutory construction, we accord great
deference to the interpretation given the statute by
the agency charged with its administration. See
Dunton v. S.C. Bd. of Exam’rs in Optometry, 291
S.C. 221, 223, 353 S.E.2d 132, 133 (1987) (“The
construction of a statute by the agency charged with
its administration will be accorded the most

respectful consideration and will not be overruled
absent compelling reasons.”).

In the context of occupational safety and health
laws, willfulness requires more than the constructive
knowledge or mere knowledge that would suffice for
a non-willful violation, but does not require a
showing of malicious intent. Intercounty Constr.
Co., 522 F.2d at 780, cert. denied, 423 U.S. 1072
(1976). “An act may be ‘willful’ if the offender shows
‘indifference’ to the rules; he need not be consciously
aware that the conduct is forbidden at the time he
performs it, but his state of mind must be such that,
if he were informed of the rule, he would not care.”
AJP Constr., Inc. v. Sec. of Labor, 357 F.3d 70, 74
(D.C. Cir. 2004)(citation omitted).

Employers are presumed to be familiar with
standards that affect their business; therefore,
ignorance or even misunderstanding of the
standards does not excuse noncompliance. Sec. of
Labor v. Hallmark Excavating, Inc., 6 OSHC 1898
(1978). Similarly, an omission or failure to act is
willful, if it is done voluntarily and intentionally.

Havens Steel Co. v. Occupational Safety and Health
Comm'n, 738 F.2d 397, 401 (10th Cir. 1984). °

Furthermore, a prior warning from OSHA may be a
factor in determining if willfulness exists. Valdak,
73 F.3d at 1469.

Burriss contends the circuit court’s decision contains
various misapplications of the willful standard and a
misinterpretation of the evidence and testimony
presented to the Review Board member.

The Review Board member found sufficient evidence
to sustain a willful violation of the Act as follows:

24

The preponderance of evidence shows that [Burriss]
demonstrated plain indifference to the Act in many
ways ... If not intentional disregard, [Burriss’] clear
indifference to the Act is very apparent by the
uncontested absence of knowledge of safety and
health standards applicable or potentially applicable
to a rapidly growing commercial electrical
contracting business, lack of possession of copies of
the OSHA standards for general industry or
construction, lack of [{Burriss]-provided training of
employees and supervisors for all potential hazards
of the job, reliance on general contractors to provide
adequate safety training for one’s employees, lack of
attention to the warning represented by a previous
citation related to a specific trenching safety practice
that would have helped eliminate other violations,
and lack of attention to the practices of other nearby
contractors at the same job site as to trenching
safety.

The circuit court likewise relied on similar evidence
to uphold the finding of willfulness. The court stated
the fact “[{[Burriss] made no effort to acquaint
anyone, including itself, with the occupational safety
and health regulations . . . [and] did not even possess
a copy of the occupational safety and health
standards” evidenced Burriss’ plain indifference to
general safety considerations.

We find there is evidence of a willful violation from
the complete absence of knowledge by Burriss of the
safety and health standards applicable to its
business at the time of the cave-in. Burris does not
dispute he was previously cited for various violations
of OSHA standards, one of which was simular to the
citation at issue herein. As indicated, the circuit

court found Burris made no effort whatsoever to
acquaint himself or anyone else with the applicable
standards.

An intentional] disregard or plain indifference to the
required standards suffices to demonstrate a willful
act. One cannot be aware of the existence of
regulatory standards, have the means to review and
learn them, consciously fail to do so and then use
lack of knowledge as an excuse. To willfully turn
one’s head to knowledge and to understanding the
requirements of the law after being exposed to a
Similar citation in the past is tantamount to a
conscious act, a conscious disregard, which would
meet the definition of a willful act. One’s act of
avoiding knowledge or completely disregarding it
might also be labeled as an intentional and
voluntary act. Arguably, some form of indifference,
in and of itself, without more, may not rise to the
level of a willful act. However, we need not reach
that question since the type of indifference herein
indeed rises to the level of a willful act or conscious
disregard of the existence of the standards and is
much more than just a misunderstanding or a mere
negligent or careless act. The policy of the law does
not provide a shield to one who is consciously aware
of a regulatory scheme but intentionally disregards
or chooses to disavail himself of, or avoid, such
knowledge or requirements. To do otherwise would
defeat the intent and goals of the regulatory scheme.

Because we find this evidence alone sufficient to
support a finding of willfulness, we need not
determine whether the circuit court erred in its
application of the willful standard or interpretation

of the other evidence as suggested by Burriss.
Accordingly, the circuit court’s order is

AFFIRMED.

HUFF and PIEPER, JJ., and GOOLSBY, A.J.,
concur.

[1] The text of Section 71, 1-1926.651(k)(1) does not appear in
the South Carolina Code of Regulations. Instead, subarticle 7
indicates South Carolina law incorporates the federal
Occupational Safety and Health Act (OSHA) Regulation 29
C.F.R. §1926, with a few exceptions. S.C. Code Regs. ch.71,
subart. 7 (1991). This is the case with many other South
Carolina Occupational Safety and Health Regulations. See e.g.
S.C. Code Regs. ch.71, subarts. 6 & 8 (1991).

{2] We decide this case without oral argument pursuant to Rule
215, SCACR.

{3} Burris is a family-owned business with Tommy Burriss as
project manager and his wife, Christine Burriss, as president.

[4] In addition to citing an employer for a violation, the
Department can classify the violation as: repeat, serious, or
willful. S.C. Code Ann. §41-15-320 (Supp. 2006). Additional
penalties are applied if any of these heightened classifications
are used. Id.

[5] This court notes Act 387, effective July 1, 2006, has since
modified S.C. Code Ann. §1-23-380 and certain appellate
procedures. However, we review Burriss’ claim pursuant to
S.C. Code Ann. §1-23-380(A)(6) (2005) rather than S.C. Code
Ann. §1-23-380(A)(5) (Supp. 2007) due to the fact the case arose
under the prior appellate procedure. Regardless, as applied to
this case, the only difference between the two statutes is the
numbering of the statutory provisions.

THE SOUTH CAROLINA COURT OF APPEALS

Burriss Electrical, Inc., Appellant,
v.

Office of Occupational Safety and Health, South
Carolina Department of Labor, Licensing and
Regulation, Respondent.

The Sinsaihie Clyde N. Davis
Lexington County
Trial Court Case No. 2004-CP-32-01804

OREDER DENYING PETITION FOR REHEARING

PER CURIAM: After careful consideration of the
Petition for Rehearing, the Court is unable to
discover that any material fact or principle of law
has either been overlooked or disregarded and hence,
there is no basis for granting a rehearing.

It is therefore ordered that the Petition for
Rehearing be denied.

/s/ Thomas E. Huff
/s/ Daniel Pieper
/s/ C. Paul Short
Columbia, S.C.
April 18, 2008

THE SUPREME COURT OF SOUTH
CAROLINA

Burriss Electrical, Inc., * -pellant,
Vv.

Office of Occupational Safety and Health, South
Carolina Department of Labor, Licensing and
Regulation, Respondent.

The Honorable Clyde N. Davis
Lexington County
Trial Court Case No. 2004-CP-32-01804

ee ee

OREDER DENYING PETITION FOR WRIT OF
CERTIORARI

Petition for Writ of Ceriorari Denied.,

/s/ Jean H. Toal C.J.

For the Court

January 8, 2009

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0379%3A1. Public record. Not legal advice.