OAH 8-1901-20212-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF LABOR AND
INDUSTRY
|
Steve
Sviggum, Commissioner, Department of Labor and Industry, v. Michels
Pipeline Construction. |
FINDINGS OF
FACT, CONCLUSIONS AND ORDER |
The above matter came on for hearing
before Administrative Law Judge Eric L. Lipman on May 21, May 22
and June 3, 2009 at the
Office of Administrative Hearings in
Rory H. Foley, Assistant Attorney General, appeared
on behalf of the Minnesota Department of Labor and Industry, Occupational
Safety and Health Division (MN-OSHA). Aaron A. Dean, Fabyanske, Westra, Hart
& Thomson, P.A., appeared on behalf of Michels Pipeline Construction
(“Michels”).
STATEMENT OF THE ISSUES
1.
Whether Michels Pipeline Construction violated applicable
occupational health and safety regulations in the performance of work on
certain trenches as described in Citations Number 8389?
2.
Whether Michels Pipeline Construction violated applicable
occupational health and safety regulations in the performance of work on
certain trenches as described in Citations Number 8640?
3.
Whether Michels Pipeline Construction is entitled to
application of the employee misconduct affirmative defense?
FINDINGS OF FACT
1.
Michels Pipeline
Construction is engaged in the business of the construction, servicing, and
installation of petroleum and high pressure natural gas pipelines. Michels is headquartered in
2.
Michels employs
approximately 210 individuals in
3.
Michels uses
crews of 7 to 10 individuals who, with heavy equipment, install, construct and
repair underground pipelines.[3]
4.
Among Michels’
portfolio of work in
5.
Michels has a written work rule that its employees are not
to enter an unprotected trench that is 60 inches or deeper unless the trench
was properly sloped, benched or braced. This written work rule is contained in both Michels’
Safety Manual and its pocket-sized Safety Handbook.[5]
6.
All Michels
employees are issued a copy of the Safety Manual. Additionally, the pocket-sized Safety
Handbooks are made available to all employees.[6]
7.
Michels provided
safety training regarding proper trench safety practice to its employees during
its annual safety training seminars and in “tool box talks” (also known as
“tailgate talks”) at the job site before the beginning of excavation.[7]
8.
Under familiar
pipeline construction practice, whenever a trench is dug, the dirt from the
excavation is to be placed at a safe distance from the trench so as to prevent
the weight of the soil from causing a collapse of the trench walls – and
perhaps injuring workmen still inside the trench. The dirt is collected in a “spoil pile.”[8]
9.
Michels’
training frequently touched upon the “2-4-5 Rule.” The 2-4-5 rule instructs that: (1) spoil
piles from excavations should be at least two feet from the edge of any
trench to minimize the risk of a cave in, (2) any trench that is four
feet or deeper, must have ladders at a distance of at least every 20 feet; and
(3) any trench that is five feet or deeper must be sloped, benched,
shored or have a trench box in it before an employee enters the trench.[9]
10.
Additionally, Michels employees attended federally-mandated
operator qualification training (“OQ training”), utility-sponsored safety
training and OSHA-sponsored training courses.[10]
11.
The 2-4-5 rule
and proper trench safety practices were among the topics addressed in the OSHA “10
hour course” and the OSHA confined space training.[11]
12.
Michels
employees are instructed that they are permitted to refuse to undertake work
and to shut down a work site if in their judgment a work safety rule is being
violated.[12]
13.
Michels home office
supervisory employees — including Craig Beckstrand, John Restad and George Witt
— conduct unannounced safety audits of sites where Michels’ pipeline work is
underway. The purpose of these surprise
inspections is to verify and assure compliance with the requirements of
applicable safety rules and the provisions of Michels’ Safety Manual.[13]
14.
Michels
employees acknowledge their awareness that these unannounced safety inspections
could occur at any time; that they happen frequently; and that employees are
subject to discipline or dismissal if a violation of company work safety rules
is discovered during such an inspection.[14]
15.
MN-OSHA
participates in the federal Occupational Safety and Health Administration’s
National Emphasis Program. As part of
its participation in this program, whenever MN-OSHA safety inspectors observe
trench work being performed, and their schedules permit an opportunity to stop
at the site, MN-OSHA officials undertake an unannounced inspection of the
construction site.[15]
16.
Among the impromptu inspections conducted by MN-OSHA in 2005
and 2006 were locations where Michels employees were undertaking trench work. Two
of these inspections resulted in citations for improper trench protections:
MN-OSHA Docket Numbers 8389 and 8640.[16]
MN-OSHA
Docket No. 8389 – Citation J8947:
17.
On October 17,
2005, employees of Michels were relocating a high pressure natural gas pipeline
at a site located near
18.
Senior Safety
Inspector Larry Sperling drove by the
19.
Mr. Sperling
stopped at the excavation site and initiated a trench safety inspection. He located the “competent person” in charge
of the excavation site, identified himself as a representative from MN OSHA and
initiated an “opening conference” to discuss the purpose of the inspection.[19]
20.
As part of his
inspection, Mr. Sperling measured the trench dimensions, made a quick review of
the disturbed soils, took photographs of the site and spoke to Michels
employees about the work that was underway.[20]
21.
Mr. Sperling
determined that the “L-shaped” trench was 12 feet by 10 feet long, from 3 to 6
feet wide, and up to 4 feet, 10 inches deep.
The trench walls were nearly vertical.
Sperling likewise concluded that, because the soil was previously
disturbed ground, it was Class C type soil.[21]
22.
When Mr.
Sperling arrived at the
23.
At the closing
conference with Michels’ foreman, Rick Halfmann, Sperling discussed the
proposed citations with the foreman, and a mutually agreeable abatement date
was set. Halfmann conceded to Sperling
that there was no trench box on site.[23]
24.
Rick Halfmann
had instructed his crew to follow the work guidelines that he had given earlier
in the day regarding trench safety. He
did not believe there would be a need for a trench box because the crew had
been digging at depths of around 36 inches that day and sloping had been used
on other areas of the project where the trench was 60 inches or deeper.[24]
25.
At the point at
which the excavation reached the front of the
26.
David Bader, a
heavy-machine operator with Michels, received written discipline for his entry
into an unprotected trench.[26]
27.
Mr. Halfmann
received Michels’ safety training and acknowledged that the “2-4-5 Rule” was communicated to him
orally and in writing.[27]
28.
Because his
subordinates had entered an unprotected trench that was greater than 60 inches
in depth, Mr. Halfmann received written discipline from Michels.[28]
29.
On October 27,
2005, Mr. Sperling issued his
Inspection Report and Worksheet, Exhibits B and C, which recommended issuance
of the following three Serious citations:
Citation 1, Item 1 - Serious citation - 29 C.F.R. §
1926.651 (c)(2) for failure to
provide a means of egress in a trench that was more than 4 feet deep. The
unadjusted penalty for this violation was $3,000.
After
crediting Michels for its good faith, ongoing safety programs and prior safety
record, the proposed adjusted penalty for Citation 1, Item 1 was $2,100.
Citation 1. Item 2 - Serious citation - 29 C.F.R. §
1926.651(k)(2) for failure of the
competent person on-site to ensure that excavations that employees worked in
met the standards and for the competent person’s failure to remove employees
from the excavation when the protective systems were not in place. The
unadjusted penalty for this violation was $4,000.
After
crediting Michels for its good faith, ongoing safety programs and prior safety
record, the proposed adjusted penalty Citation 1, Item 2 was $2,800.
Citation 1. Item 3 - Serious citation - 29 C.F.R. §
1926.652 (a)(1) for exposing
employees to an unprotected excavation by allowing them to work in two
unprotected trenches approximately fifty feet apart. The unadjusted penalty for
this violation was $5,000.
After
crediting Michels for its good faith, ongoing safety programs and prior safety
record, the proposed adjusted penalty Citation 1, Item 3 was $3,500.[29]
30.
On November 3, 2005, MN-OSHA issued the Citations and Notification of Penalty.[30]
31.
On November 21,
2005, Michels filed a Notice of Contest.[31]
32.
On February 17,
2006, MN-OSHA filed and served a Summons and Notice to Michels.[32]
33.
On February 21,
2006, Michels answered MN-OSHA’s Complaint, asserting in part that the violations
were due to unpreventable employee misconduct.[33]
MN-OSHA
Docket No. 8640 – Citation U7336:
34.
On June 13,
2006, Michels’ employees were repairing a pipeline near
35.
There were two trenches at this site – both of which were on
36.
Senior Safety
Inspector Gary Anderson drove by the site while en route to his office from
another inspection.
37.
38.
Believing the
pipeline repair work in the eastern-most trench to be completed, Corey Stenson,
a backhoe operator with Michels, began to fill in this trench with soil. Noticing that a metal locating wire was not
properly attached to the polyvinyl chloride (PVC)
pipe in the trench, Stenson stopped the backfilling operation, exited the cab
of the backhoe and jumped into the trench.
Stenson was fastening this wire to the vinyl pipe when Inspector
Anderson approached the eastern trench.[38]
39.
Earlier
in the day, a trench box was on site, and in use, while repairs to the pipeline
were underway.[39]
40.
Mr. Stenson did
not apprise any of his co-workers that he was going to return to the trench for
additional work before entering the trench.[40]
41.
When the
locating wire was later fastened to the vinyl pipe, Stenson exited the trench
by walking atop that portion of the soil fill that he had earlier placed into
the trench.[41]
42.
Mr. Anderson
measured the eastern-most trench and determined that it was 6 feet deep; 13
feet, 9 inches long; and 6 feet, 6 inches wide.
The trench walls were vertical.[42]
43.
Mr. Anderson
measured the western-most trench and found that it was less than 5 feet deep –
and therefore too shallow to prompt the contractor to undertake sloping,
shoring or trench box safety measures.[43]
44.
Because the
trench soil was located in a roadway with an existing high pressure natural gas
line and utility wires, the soil was “previously disturbed,” and thus was
classified as Type C soil.[44]
45.
Messrs. Laxdal
and Stenson received Michels’ safety training and acknowledge that the “2-4-5 Rule” was communicated to them
orally and in writing.[45]
46.
Mr. Stenson
received written discipline for his entering an unprotected trench that was
greater than 60 inches in depth. Stenson
was required to attend an eight-hour trench safety training session, without
pay, as a condition of continued employment.
Likewise, Wyatt Laxdal, the job site foreman, received written
discipline and was required to attend an eight hour trench safety training
session, without pay, as a condition of continued employment.[46]
47.
Ensuring
Stenson’s and Laxdal’s attendance at the employer-selected course, Michels
Safety Director George Witt accompanied the men to the eight-hour training
session.[47]
48.
On June 16,
2006,
Citation 1, Item 1 - Serious citation - 29 C.F.R. §
1926.651 (c)(2) for failure to
provide a ladder or another means of access and/or egress in an excavation that
was 6 feet deep with nearly vertical walls.
The
unadjusted penalty for this violation was $2,500. After crediting Michels for its good faith,
ongoing safety programs and prior safety record the proposed adjusted penalty for
Citation 1, Item 1 was $1,500.
Citation 1, Item 2 - Serious citation - 29 C.F.R. §
1926.651 (k)(2) for Respondent’s
employees’ failure to perform the function of a competent person at the
jobsite, to take corrective action at the site, and to remove employees from
the unprotected excavation.
The
unadjusted penalty for this violation is $2,000. After crediting Michels for
its good faith, ongoing safety programs and prior safety record the proposed
adjusted penalty for Citation 1, Item 2 was $1,200.
Citation 1. Item 3 - Serious citation - 29 C.F.R. § 1926.652 (a)(1) for
Respondent’s failure to utilize an adequate protective system for employees
working in an excavation that was 6 feet deep, 13 feet 9 inches long, and 6 feet 6 inches wide, with a bottom width of
approximately 6 feet 6 inches and
Type B soil.
The
unadjusted penalty for this violation is $2,500. After crediting Michels for its good
faith, ongoing safety programs and prior safety record the proposed adjusted
penalty for Citation 1, Item 3 was $1,500.[48]
49.
Despite the
instruction of the MN-OSHA Field Compliance Manual that the “case file shall
contain documentation which refutes the more common [affirmative] defenses,”
including the affirmative defense of unpreventable employee misconduct, the
case file does not include documentation that addresses these defenses.[49]
50.
On July 14, 2006, MN-OHSA issued the Citations
and Notification of Penalty.[50]
51.
On July 26,
2006, Michels filed a Notice of Contest.[51]
52.
On October 23,
2006, MN-OHSA served and filed a Summons and Notice to Michels.[52]
53.
On November 10,
2006, Michels answered the MN-OHSA’s Complaint, asserting, in part, that the violations
were due to unpreventable employee misconduct.[53]
Procedural
History:
54.
Michels raised its claim as to the insufficiency of process
in its Answer to the Complaint and, two days before the evidentiary hearing,
requested an opportunity to be heard on this claim.[54]
55.
Under the terms
of the First Pre-Hearing Order in this matter, the undersigned established a
deadline for submissions of dispositive motions of April 30, 2009.[55]
56.
At the opening
of the evidentiary hearing, Michels moved for a recommendation that the
citations be dismissed on the grounds of improper service of the Summonses and
Complaints and for laches. The
Administrative Law Judge took Michels’ motions under advisement.
Based upon these Findings of Fact,
the Administrative Law Judge makes the following:
CONCLUSIONS
1.
The Commissioner of
Labor and Industry and the Administrative Law Judge have jurisdiction in this
matter pursuant to Minn. Stat. §§ 182.661, subd. 3 and 182.664.
2.
The Department gave proper notice of the hearing in this
matter and has fulfilled all relevant procedural requirements.
3.
The Respondent is an employer as defined by Minn. Stat. §
182.651, subd. 7.
4.
Minn. Stat. § 182.653, subd. 3, requires employers to comply
with Occupational Safety and Health Standards adopted pursuant to Minn. Stat.
Ch. 182.
5.
29 C.F.R. § 1926.651(k) requires that:
(1) Daily inspections of excavations, the
adjacent areas, and protective systems shall be made by a competent person for
evidence of a situation that could result in possible cave-ins, indications of
failure of protective systems, hazardous atmospheres, or other hazardous
conditions. An inspection shall be
conducted by the competent person prior to the start of work and as needed
throughout the shift. Inspections shall also be made after every rainstorm or
other hazard increasing occurrence. These inspections are only required when
employee exposure can be reasonably anticipated.
(2) Where the competent person finds evidence of
a situation that could result in a possible cave-in, indications of failure of
protective systems, hazardous atmospheres, or other hazardous conditions,
exposed employees shall be removed from the hazardous area until the necessary
precautions have been taken to ensure their safety.
6.
29 C.F.R. § 1926.652 (a)(1) requires that:
Each employee
in an excavation shall be protected from cave-ins by an adequate protective
system designed in accordance with paragraph (b) or (c) of this section except
when:
(i) excavations are made entirely in stable
rock, or
(ii)
excavations are less than 5 feet (1.52m) in depth and examination of the ground
by a competent person provides no indication of potential cave-ins.
7.
The Department has the burden of establishing an
Occupational Health and Safety Act violation by a preponderance of the
evidence.
8.
The Department has established by a preponderance of the
evidence that Michels’ employees were exposed to the cited hazards.
9.
The Department has proved a violation of 29 C.F.R. §
1926.651 (k)(2) and a violation of 29 C.F.R. § 1926.652 (a)(1).
10.
Under Minn. Stat. § 182.666, subd. 6, the Commissioner has
authority to assess fines, giving due consideration to the size of the
employer, the gravity of the violation, the good faith of the employer and the
history of previous violations.
11.
The record supports the Department’s penalty calculation
regarding the severity and probability of harm of each violation. The penalty
calculations and application of various credits in Citations J8947 and U7336
were in accordance with the MN-OSHA Field Compliance Manual and the Citation
Rating Guide.[56]
12.
Respondent
carries the burden of proof as to affirmative defenses excusing liability under
29 C.F.R. § 1926 and Minn. Rules 1400.7300, subp. 5 (2007).
13.
The evidence in
this record establishes that Michels:
(a) established a work rule to prevent the reckless behavior and unsafe trench
safety practice from occurring;[57]
(b) adequately communicated the rule to its employees through a pyramiding
series of written and oral training materials;[58]
(c) took steps to discover incidents of noncompliance through unannounced
investigations;[59]
and (d) effectively enforced the rule through progressive discipline whenever
employees transgressed it.[60]
14.
Because the
misconduct at issue could not be controlled through the exercise of reasonable
diligence, Michels is entitled to application of the employee misconduct
defense and a dismissal of the Citations.
15.
Any Finding of
Fact that is more properly characterized as a Conclusion is hereby adopted as
such and incorporated by reference.
Based upon these Conclusions, and
for the reasons explained in the accompanying Memorandum, the Administrative
Law Judge makes the following:
ORDER
1.
Michels’ Motion for Summary Disposition is DENIED.
2.
Michels has established its entitlement to application of
the employee misconduct defense and so is entitled to a judgment in its favor.
3.
The Complaints in Docket Numbers 8389 and 8640 are
DISMISSED.
Dated: July 21,
2009.
_/s/
Eric L. Lipman
_
|
ERIC
L. LIPMAN Administrative
Law Judge |
Reported: Digital Recording
No transcript prepared
Notice
is hereby given that under Minn. Stat. § 182.664, subd. 3, this decision may be
appealed to the Minnesota Occupational Safety and Health Review Board by the
employer, employee, their authorized representatives, or any party, within 30
days following the service by mail of this decision. The procedures for this appeal are set out at
Minn. Rules 5215.5000 to 5215.5210.
MEMORANDUM
Michels moved for summary disposition on its claim
that the Complaints in this matter were not properly served and that they are
otherwise barred by the equitable doctrine of laches.
In the alternative, Michels asserts that it is
entitled to dismissal of the Complaints because the regulatory violations
followed from unpreventable
employee misconduct.
I. Laches
Summary disposition is the administrative equivalent
of summary judgment.[61] Summary disposition is appropriate when there
is no genuine dispute as to the material facts of a contested case and one
party necessarily prevails when the law is applied to those undisputed facts.[62]
The equitable doctrine of laches is available to
prevent one who has not been diligent in asserting known rights from later
recovering against a party who is prejudiced by the delay in asserting claims
for recovery.[63] The state courts employ a four-factor test
when assessing the defense of laches.
The courts consider: (1) the nature of the action and the availability
of defenses to the asserted claims; (2) the reasons for the delay in asserting
claims for recovery; (3) prejudice to the defending party; and (4) policy
implications that might follow from either permitting or barring the claims.[64] Laches is a doctrine that promotes a peaceful
society by discouraging the assertion of stale claims for relief.[65]
In this case, following the issuance of the two
Citations, prompt Notice of Contests in each instance, and follow-on Complaints
and Answers to each matter, there was a long, 27-month lag between the filing
of Michels’ Answer as to Docket 8640 and the Department’s issuance of a Notice
and Order for Hearing for a contested case.
So says the Department, this was a case that “fell through the cracks.”
While the policy of preventing the assertion of stale
claims is a strong one, the dispute over the proper trench safety practice was
initiated at an early point by MN-OSHA, continued to be the subject of
communications between the parties and never was abandoned by the agency.[66] Michels was
in a position to preserve its defenses and evidence for a later hearing, and
was not unduly prejudiced by MN-OSHA’s admittedly slow progress in settling
this matter for a contested case hearing.
Second, and likewise problematic for
Michels, the doctrine of laches has ordinarily been applied against state
agencies only in those cases where the agency – like a private party in the
marketplace – was acting in a proprietary capacity. Indeed, in Leisure Hills v. Minnesota Department of Human Services,[67]
the Minnesota Court of Appeals held that the doctrine of laches was not
available to prevent the Department of Human Services from recouping payments
that an earlier government audit noted were then due and owing. As the Court reasoned, when administering the
Medical Assistance program – which included efforts to recoup payments from
health care providers – the agency was undertaking functions in the state’s
sovereign capacity. In such
circumstances, the defense of laches does not lie.[68]
While it is true that the Department
and its counsel have duties to enforce the workplace safety laws,[69]
MN-OSHA, when making demands for the payment of assessed penalties is not
pursuing payments for its own account. Instead, MN-OSHA’s demands arise out of a
regulatory enforcement role. Because
MN-OSHA is performing a governmental function when making claims that, under
the Minnesota
Occupational Safety and Health Act of 1973, Michels did not provide a work
place that was “free from
recognized hazards that are causing or are likely to cause death or serious
injury or harm to its employees,”[70] the holding in Leisure
Hills prevents application of the doctrine of laches. Michels is not entitled to summary
disposition on this defense to the agency’s claims.
II. Insufficient
Service of Process
Michels
asserts that it is entitled to dismissal because there was insufficient service
of process by MN-OSHA of the Complaints in these matters. Instead, Michels argues that, at best,
counsel for Michels received copies of the Complaints – and that the lawyers
were not authorized by the company to receive the service of process.
Two points
deserve special emphasis. First,
Michels’ Safety Director’s testimony as to the receipt of the Complaints in
Dockets No. 8389 and 8640 is more oblique than the argument of counsel. Mr. Witt testified that he did receive a copy
of the Complaints at some time; he is not certain when this occurred; but did
attend the informal conferences in these matters. This testimony does not discount or disprove
MN-OSHA’s claim that Michels received timely service as averred in the
Department’s affidavits of service.[71]
More importantly, to the extent that
Michels’ motion calls into question the power of the tribunal to undertake a
contested case in the first instance,[72]
it makes a dispositive motion. Under the
terms of the March 5, 2009 Pre-Hearing Order, “any dispositive motion” was due
to be filed by 4:30 p.m. on Thursday, April 30, 2009. The facts underlying its claim on the failure
of service were known to Michels before April 30, 2009 but were not detailed by
way of written motion filed on or before that date. Accordingly, any claim that it was entitled
to relief as a matter of law, was waived when it was not asserted by a written
motion filed by the close of business on April 30, 2009.[73]
II. Employee
Misconduct Defense
A “serious violation” of state work
safety standards is the:
violation of any standard, rule, or order which
creates a substantial probability that death or serious physical harm could
result from a condition which exists, or from one or more practices, means,
methods, operations, or processes which have been adopted or are in use, in
such a place of employment, unless the employer did not, and could not with the
exercise of reasonable diligence, know of the presence of the violation.[74]
As set forth in the statute, an employer is shielded
from liability for workplace safety violations, when it: (a) had an established work rule to prevent
unsafe trench repair practice from occurring; (b) adequately communicated the
rule to its employees; (c) took steps to discover incidents of noncompliance;
and (d) effectively enforced the safety rule when violations were discovered.[75] Moreover, while the scrutiny given to such a
defense is more rigorous when supervisory employees are on the job site at the
time of the violation, the presence (or even involvement) of supervisory staff
during the misconduct is not an automatic bar to assertion of the defense.[76]
In this case, Michels does not dispute that its
employees violated the applicable trench safety standards on October 17, 2005
and June 13, 2006; rather, it argues that it should not be held accountable
because the violation resulted from idiosyncratic employee conduct that it
could not control through the exercise of reasonable diligence.
The evidence in this record establishes that
Michels: (1) has a work rule to prevent
unsafe trench repair practice from occurring; (2) adequately communicated this
rule to its employees; (3) took steps to discover incidents of noncompliance;
and (4) effectively enforced the rule when violations were discovered.
It is worth noting that Michels’
contention that, notwithstanding its internal program of safety inspections,
the only violations of applicable trench safety practice of which it has ever
been made aware are the ones that were discovered by MN-OSHA inspectors on October
17, 2005 and June 13, 2006,[77]
invites genuine skepticism. Yet, in view
of the record as a whole, Michels has even established the third prong of the
applicable four-factor test. This
conclusion, however, is a very close call; and one which, in the final
analysis, turns upon a careful assessment of the credibility of the witnesses
who testified at the evidentiary hearing and a close review of Michels’
business records.[78]
Because the misconduct at issue could not be
controlled through the exercise of reasonable diligence, Michels is entitled to
application of the employee misconduct defense and a dismissal of the Citations.
E.
L. L.
[1] Exhibit J.
[2] Ex. 61.
[3] Ex. 53; Testimony of George Witt.
[4] See, Ex. 19 and 58; Test. of G. Witt.
[5] See, e.g., Ex. 11, at 13-14; Ex. 29, at 37-39.
[6] Exs.
11, 12, and 46; Test. of R. Halfmann, Test. of
[7] See, e.g., Exs. 16, 17, 18, 40, and 41.
[8] Ex. H; Test. of L. Sperling; compare generally, Gary Bastian, Commissioner of Labor and Industry, v. Kenko, Inc., OAH Docket No. 9-1901-10044-2 (1996) ("The spoil pile presents two potential hazards (1) when placed at the edge of the trench, the soil pile can spill into the trench and injure employees; and (2) the weight of the soil pile adds additional stress to the wall of the trench which could cause a cave-in. This situation was exacerbated by the vibrations from traffic passing by on the road. The purpose of this regulation is to prevent spills and cave-ins which could cause severe injury or death to an exposed employee") (http://www.oah.state.mn.us/aljBase/19010044.rp.htm).
[9] Ex.
18; Test. of R. Halfmann, Test. of
[10] See, Exs. 13, 15, 31, 32, 35, 36, 37 and 40; Testimony of Craig Beckstrand; Test. of G. Witt.
[11] Test. of G. Witt.
[12] Test.
of R. Halfmann, Test. of
[13] See, e.g., Ex. 47, at 2 and 53.
[14] Test.
of R. Halfmann, Test. of
[15] Testimony of Larry Sperling.
[16] Exs. M, N and 57.
[17] Test. of R. Halfmann, Test. of L. Sperling; Test. of G. Witt.
[18] Test. of L. Sperling.
[19] Test. of L. Sperling.
[20]
[21] Test. of L. Sperling; see also, Ex. A (29 C.F.R. § 1926, Subpart P, Appendix A).
[22] Ex. H at 6, 13 and 14; Test. of L. Sperling.
[23] Test. of L. Sperling.
[24] Test. of R. Halfmann.
[25] Ex. H at 4, 14, 20 and 24; Test. of L. Sperling.
[26] See, Ex. 50 at 1.
[27] Ex. 18.
[28] Exs. 49 and 50.
[29] Ex. C; Test. of L. Sperling.
[30] Ex. M.
[31] Ex. R.
[32]
[33] Ex. 6. Further, on February 24, 2006, Michels filed an Amended Answer.
[34] Test. of Gary Anderson.
[35] Id; Ex. I.
[36] Test. of G. Anderson.
[37]
[38] Testimony of Corey Stenson.
[39] Test. of C. Stenson; Test. of W. Laxdal.
[40] Test. of C. Stenson; Test. of W. Laxdal.
[41] Test. of C. Stenson.
[42] Test. of G. Anderson; Ex. I; see also, Test. of C. Stenson.
[43] Test. of G. Anderson; Ex. I,
[44] Test. of G. Anderson; Ex. I; see also, Test. of C. Stenson.
[45] See, Ex. 18.
[46] Exs. 21, 22, 23 and 24.
[47] Test. of G. Witt; Test. of C. Stenson; Test. of W. Laxdal.
[48] Ex. N; Test. of G. Anderson.
[49] Compare, Ex. O at V-3 and V-4.
[50] Ex. N.
[51] Ex. S.
[52]
[53] Ex. R.
[54] See, Electronic Mail Message of Aaron A Dean, Sviggum v. Michels Pipeline Constr., OAH Docket No. 8-1901-20212-2 (May 19, 2009).
[55] First Pre-Hearing Order, Sviggum v. Michels Pipeline Constr., OAH Docket No. 8-1901-20212-2.
[56] See, Ex. O at VI-21 and VI-24; Test. of L. Sperling; Test. of G. Anderson.
[57] Exs. 11 and 30.
[58] Exs. 29 – 42, 44 – 47 and 57; Test. of R.
Halfmann; Test. of
[59] Exs. 26 and 53; Testimony of John Restad; Test. of R. Halfmann; Test. of W. Laxdal; Test. of G. Witt.
[60] Exs. 21 – 24 and 49; Testimony of Craig Beckstrand; Test. of R. Halfmann; Test. of W. Laxdal; Test. of C. Stenson.
[61] See,
Pietsch v. Mn. Bd. of Chiropractic Examiners, 683 N.W.2d 303, 306 (
[62] See,
Sauter v. Sauter, 70 N.W. 2d 351, 353 (
[63] Winters
v. Kiffmeyer, 650 N.W.2d 167, 169 (
[64] M.A.D.
v. P.R., 277 N.W.2d 27, 29 (
[65]
[66] Exs. K, M, N, R, and S.
[67] Leisure Hills v. Minnesota Department of
Human Services, 480 N.W.2d 149 (
[68] Id, at 151; see also, State v. Brooks, 236 N.W. 316, 317 (Minn. 1931) ("The collection of taxes is a governmental or sovereign function of the state, and procrastination or delay on the part of its officers in the discharge of such function is not permitted to prejudice the state's right"); In the Matter of Steve Sviggum, Comm’r, Dep’t of Labor and Industry, v. John Richardson, OAH Docket No. 3-1900-17862-2 (2007) (http://www.oah.state.mn.us/aljBase/190017862%20sd%20ord.htm).
[69] Digital Recording, Preliminary Matters, 1st Day of the Evidentiary Hearing; Test. of G. Witt.
[70]
[71] Compare, Affidavit of Carrie Rohling (February 17, 2006) and Affidavit of Shana Sieben (October 23, 2006); with Test. of G. Witt.
[72] Compare generally, Year 2001 Budget Appeal of Landgren v. Pipestone County Bd. of Com'rs, 633 N.W.2d 875, 878-79 (Minn. App. 2001) ("timely service on adverse parties has long been jurisdictional ... [t]herefore if service of process is invalid, the district court lacks jurisdiction to consider the case, and it is properly dismissed") (citing cases); accord, Lewis v. Contracting Northwest, Inc., 413 N.W.2d 154, 257 (Minn. App. 1987) (“Defects in service of process are jurisdictional in nature”).
[73] Compare,
[74]
[75] See, Horne Plumbing & Heating Co., 528 F.2d 564, 568-71 (5th Cir. 1976); Secretary of Labor v. Stark Excavation, Inc., OSHRC Docket No. 07-1861 (Occupational Safety and Health Rev. Comm’n, 2008) (http://www.oshrc.gov/decisions/html_2008/07-1861.htm).
[76] See, id.
[77] Test. of J. Restad; Test. of G. Witt.
[78] Exs. 26 and 53; Test. of J. Restad; Test. of G. Witt.