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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2004 Decided June 4, 2004
No. 03-1208
FABI CONSTRUCTION COMPANY, INC.,
PETITIONER
v.
SECRETARY OF LABOR,
RESPONDENT
On Petition for Review of an Order of the
Occupational Safety and Health Review Commission
Joseph P. Paranac, Jr. argued the cause for the petitioner.
Michael P. Doyle, Attorney, United States Department of
Labor, argued the cause for the respondent. Allen H. Feld-
man, Associate Solicitor, and Nathaniel I. Spiller, Deputy
Associate Solicitor, United States Department of Labor, were
on brief.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS and HENDERSON, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The Secretary
of Labor (Secretary), through the Occupational Safety and
Health Administration (OSHA), cited Fabi Construction Co.
(Fabi) for eight violations of OSHA safety regulations after
one of Fabi’s employees suffered a fatal fall while demolishing
a ‘‘knock-out’’ panel on the roof of a 10–story garage. Fabi
challenges each of the eight findings of violation. For the
reasons set out below, we reject each of Fabi’s challenges and
uphold the citations affirmed by the Occupational Safety and
Health Review Commission (Commission or OSHRC), 20
O.S.H. Cas. (BNA) 1535 (2003). That said, with regard to the
citations relating to the demolition itself (Citation 1, items 1a,
2, 3a; Citation 2, item 1), we find it troubling that the
Secretary cited Fabi only for failure to instruct and train
demolition workers and to ensure the panel integrity rather
than for using improper techniques to carry out the demoli-
tion.1 The Secretary’s decision in this respect is particularly
problematic because as a consequence the Commission was
not called upon to consider and failed to identify what specific
safety measures Fabi should have employed—but did not—
during the actual demolition. Nonetheless, we agree with the
Commission that the danger in the demolition method used—
drilling holes in concrete slabs while standing atop them—
was plain enough to put Fabi on notice of the need to
adequately implement demolition safety measures and that
the evidence supports the findings that Fabi did not do so.
Accordingly, we cannot say that it was error for the Commis-
sion to uphold the Secretary’s citation of Fabi for failure to
warn and instruct in advance only and not for improperly
implementing the demolition itself. Cf. W.G. Fairfield Co. v.
OSHRC, 285 F.3d 499 (6th Cir. 2002) (employer with actual
knowledge that trench-digging employees crossed busy inter-
1 OSHA has promulgated specific regulations governing demoli-
tion. See 29 C.F.R. pt. 1926, subpt. T (29 C.F.R. §§ 1926.850–
1926.860).
3
state in course of work and took no steps to prevent it
violated 29 C.F.R. § 1926.20(b)(1)).2
I.
Fabi was a subcontractor performing concrete installation
and demolition work for the construction of a 21-story Trop-
World Hotel addition atop an existing 10-story parking ga-
rage in Atlantic City, NJ. Among Fabi’s assignments was
demolition of a number of concrete ‘‘knockout’’ panels (or
slabs) that had been installed when the garage was built to
accommodate future expansion. On February 5, 1995 Fabi
demolished three knockout panels covering elevator pits on
the ground floor of the garage. Four days later, on February
9, 1995, Fabi demolished two knockout panels covering eleva-
tor shafts on the second floor. In each instance, before actual
demolition of the panel, workers stood on top of the panel and
drilled a pilot hole with a jackhammer to find out the type
and position of the steel bars, or ‘‘rebar,’’ used to reinforce
the panels. With this knowledge, workers hammered away
concrete at locations along the slab’s perimeter where the
rebar should be and then sawed through the rebar. Each of
the 5 panels was demolished without incident.
Three panels remained to be demolished on the garage
roof: one over a stairway and two over elevator shafts. The
rooftop stairway panel was, like the previous five panels,
demolished without incident. The first rooftop elevator panel
was scheduled for demolition on Saturday, June 10, 1995, by
employees Thomas Kane and Frank Caucci, under the super-
vision of foreman Charles Cincotti. Kane had been hired by
Fabi the previous month and Caucci the previous week. This
was the first knockout panel demolition project at TropWorld
for both. Before they began the demolition work, Cincotti
gave them the following instruction:
We’ll shoot our pilot hole, we’ll look for our rebar, if
anything doesn’t look, you know, where it should be,
2 We note that Fabi has not objected to the Secretary’s citation
specification.
4
you stop the job. And we would call it a day. Until
we could discuss it.
Hearing Tr. (Tr.) 281–82. When they began the task, Kane
stood on top of the panel with a jackhammer and drilled a
pilot hole in the southeast corner of the panel to check the
rebar. While he was jackhammering, Kane noticed two or
three stress cracks emanating from the pilot hole. At Kane’s
direction, Caucci periodically stepped onto the panel to strike
the pilot hole area with a sledgehammer. The final time he
did so, the northwest corner of the slab tilted up and the slab
fell into the shaft, carrying Kane and Caucci with it. Kane
managed to grab onto the floor below but Caucci fell down
the shaft to his death.
On June 10, 1995 OSHA began an investigation of Caucci’s
death. On December 8, 1995 OSHA issued Fabi three cita-
tions specifying thirteen safety violations. After a five-day
evidentiary hearing, the administrative law judge (ALJ) af-
firmed eight of the cited violations and assessed fines totaling
$31,500. Sec’y v. Fabi Constr. Co., No. 96–0097 (filed April 8,
1998), (ALJ Dec.). The Commission upheld the eight viola-
tions and the penalties as assessed by the ALJ, concluding,
without elaboration, that her ‘‘decision finding that Fabi
violated the Act with respect to the citations at issue on
review is supported by the evidence and applicable legal
precedent.’’ Sec’y v. Fabi Constr. Co., No. 96–0097, slip op.
at 2 (May 30, 2003) (Comm’n Dec). Fabi filed a timely
petition for review of the Commission’s decision.
II.
Fabi challenges each of the violations affirmed by the
Commission. Our review of the Commission’s decision is
deferential. We must treat as ‘‘conclusive’’ the Commission’s
findings of fact so long as they are ‘‘supported by substantial
evidence on the record considered as a whole,’’ 29 U.S.C.
§ 660(a); and we may ‘‘set aside the Commission’s application
of legal standards to facts only if it is arbitrary, capricious, an
abuse of discretion, or contrary to law.’’ American
5
Bridge/Lashcon v. Reich, 70 F.3d 131, 133 (D.C. Cir. 1995)
(citing 5 U.S.C. § 706(2)(A); Century Steel Erectors, Inc. v.
Dole, 888 F.2d 1399, 1403 (D.C. Cir. 1989)). Applying these
standards, we reject each of Fabi’s challenges in turn.
A. Citation 1, item 1a
First, the Commission found a serious3 violation of 29
C.F.R. § 1926.20(b)(1) and assessed a penalty of $5,000. Sec-
tion 1926.20(b)(1) provides: ‘‘It shall be the responsibility of
the employer to initiate and maintain such programs as may
be necessary to comply with [Part 1926 of title 29].’’4 The
ALJ found Fabi violated this provision because, although
Fabi maintained a written safety program and conducted
weekly on-site ‘‘toolbox talks’’ on various safety issues, ‘‘Fabi
failed to fully implement and maintain a safety program with
specific instructions about what precautions to take when
performing demolition.’’ ALJ Dec. at 7. Fabi challenges this
finding on both legal and factual grounds.
First, Fabi contends the Commission has not previously
interpreted section 1926.20(b)(1) to require ‘‘task specific
training and instructions on demolition.’’ Pet’r Br. 1. Fabi is
incorrect. In Sec’y v. Northwood Stone & Asphalt, 16 O.S.H.
Cas. (BNA) 2097 (1994), the Commission interpreted section
1926.20(b)(1) to mean that ‘‘an employer may reasonably be
expected to conform its safety program to any known duties
and TTT a safety program must include those measures for
detecting and correcting hazards which a reasonably prudent
employer similarly situated would adopt’’ and held that ‘‘a
reasonably prudent employer in [the employer’s] position,
having experienced numerous prior instances of a truck’s
becoming entangled in overhead power lines, would have
understood that an adequate safety program under section
1926.20(b)(1) would include specific measures to be taken
3 The Occupational Safety and Health Act sets three degrees of
violation, in order of decreasing severity: ‘‘willful,’’ ‘‘serious’’ and
‘‘not serious’’ (or ‘‘other than serious’’). 29 U.S.C. § 666.
4 Part 1926 contains ‘‘Safety and Health Regulations for Con-
struction.’’
6
when a dump truck became entangled in overhead electrical
lines.’’ Northwood Stone & Asphalt, 16 O.S.H. Cas. (BNA) at
2099 (1994).5 Consistent with precedent, the Commission
here applied section 1926.20(b)(1) to conclude that a reason-
ably prudent employer should be aware of the dangers inher-
ent in demolition—and that Fabi was in fact aware of them as
demonstrated by its use of a demolition safety video which it
showed to some, but not all, of its demolition workers—yet
failed to adequately implement a safety program addressing
the hazards.
Fabi next challenges the evidentiary sufficiency for the
citation, contending that in fact ‘‘numerous Fabi employees’’
testified they had ‘‘received specific instructions on topics
integral to demolition safety.’’ Pet’r Br. 4. The ALJ ade-
quately responded to this argument in finding the following
facts, supported by the record: Fabi’s written program did
not specifically address ‘‘demolition,’’ Fabi’s Weekly Jobsite
Safety Meeting Reports did not disclose any toolbox meeting
addressing demolition hazards in particular, there was no
evidence Caucci or Kane attended any tool box meeting
addressing any but the most basic demolition safety mea-
sures,6 Fabi’s demolition video was not shown to all demoli-
tion employees—in fact it was not shown to anyone hired
after early spring, including both Kane and Caucci—and new
hires were simply given only ‘‘brief guidelines’’ of the written
5 Although Fabi challenges the Commission’s interpretation of
section 1926.20(b)(1), Pet’r Br. at 3, we note that we will defer to
the Commission’s interpretation, as expressly adopted in the Secre-
tary’s brief, see Respondent Br. 23–24, ‘‘so long as it ‘sensibly
conforms to the purpose and wording of the regulations.’ ’’ Mont-
gomery KONE, Inc. v. Sec’y, 234 F.3d 720, 722 (D.C. Cir. 2000)
(quoting Buffalo Crushed Stone, Inc. v. Surface Transp. Bd., 194
F.3d 125, 128 (D.C. Cir. 1999)).
6 There is no evidence that Caucci attended any meetings on
demolition safety. Kane testified that the demolition topics covered
in talks he attended were ‘‘just basic, you know, stuff like, you
know, if you are working with a jackhammer you would need
goggles, dust mask, hearing protection, and the safetying off of
areas that were to be demoed.’’ Tr. 877.
7
program and told the full program was available for their
review.7
B. Citation 2, Item 1
Second, Fabi challenges the citation for serious violation of
29 C.F.R. § 1926.21(b)(2), for which it was assessed a $7,000
penalty. Section 1926.21(b)(2) provides: ‘‘The employer shall
instruct each employee in the recognition and avoidance of
unsafe conditions and the regulations applicable to his work
environment to control or eliminate any hazards or other
exposure to illness or injury.’’ We affirm the Commission’s
determination that Fabi violated this regulation.
Fabi contends that section 1926.21(b)(2) was not ‘‘meant to
extend ‘to all aspects of an employee’s job training’ or ‘to
govern specific employer instructions for each particular
task.’ ’’ Pet’r Br. 6 (quoting Klug & Smith Constr., Inc., 15
O.S.H. Cas. (BNA) 1204 (1991)).8 As the ALJ noted, however,
the Commission has given the provision just such a construc-
tion:
Section 1926.21(b)(2) requires instructions to employ-
ees on (1) how to recognize and avoid unsafe conditions
7 Fabi relies on two decisions—Sec’y v. Capitol Tunneling, 15
O.S.H. Cas. (BNA) 1304 (1991), and Sec’y v. Odyssey Contracting
Corp, 16 O.S.H. Cas. (BNA) 1753 (1994)—to argue that its safety
programs were adequate. These two unreviewed ALJ decisions,
however, are without precedential value. See Sec’y v. Star Brite
Constr. Co., 19 O.S.H. Cas. (BNA) 1687, 2001 WL 1668967, at *4 n.8
(2001) (‘‘Unreviewed administrative law judge decisions have no
precedential value.’’) (citing Sec’y v. Leone Constr. Co., 3 O.S.H.
Cas. (BNA) 1979 (1976)); accord In re Cerro Copper Prods. Co., 752
F.2d 280, 284 (7th Cir. 1985); Fred Wilson Drilling Co. v. Mar-
shall, 624 F.2d 38, 40 (5th Cir. 1980); Willamette Iron & Steel Co. v.
Sec’y, 604 F.2d 1177, 1180 (9th Cir. 1979), cert. denied, 445 U.S. 942
(1980); cf. Stanford Hosp. & Clinics v. Nat’l Labor Relations Bd.,
325 F.3d 334, 345 (D.C. Cir. 2003) (ALJ decision to which excep-
tions are not filed with National Labor Relations Board has ‘‘no
precedential value’’).
8 Klug & Smith, on which Fabi relies, is an unreviewed ALJ
decision and is therefore without precedential value. See supra
note 7.
8
they may encounter on the job, and (2) the regulations
applicable to those hazardous conditionsTTTT An em-
ployer’s instructions are adequate under section
1926.21(b) if they are ‘‘specific enough to advise em-
ployees of the hazards associated with their work and
the ways to avoid them’’ and are modeled on the
applicable standards.
Sec’y v. Superior Custom Cabinet Co., 18 O.S.H. Cas. 1019,
1020–21 (1997) (quoting El Paso Crane & Rigging Co., 16
O.S.H. Cas. at 1425 nn.6 & 7 (1993); internal citations omit-
ted); cf. Sec’y v. Pressure Concrete Constr. Co., 15 O.S.H.
Cas. (BNA) 2011, 2015 (1992) (in interpreting section
1926.21(b)(2), ‘‘the Commission and the courts have held that
an employer must instruct its employees in the recognition
and avoidance of those hazards of which a reasonably prudent
employer would have been aware’’).9 Because the Secretary
has agreed with the Commission’s interpretation of the regu-
lation, see Respondent Br. 23–24, we defer to the interpreta-
tion and uphold it ‘‘so long as it ‘sensibly conforms to the
purpose and wording of the regulations.’ ’’ Montgomery
KONE, Inc. v. Secretary of Labor, 234 F.3d 720, 722 (D.C.
Cir. 2000) (quoting Buffalo Crushed Stone, Inc. v. Surface
Transp. Bd., 194 F.3d 125, 128 (D.C. Cir. 1999)). The Com-
mission’s interpretation so conforms. The Commission’s indi-
vidualized ‘‘reasonably prudent employer’’ standard is consis-
tent with the regulation’s directive that the employer ‘‘shall
instruct each employee in the recognition and avoidance of
unsafe conditions.’’ (Emphasis added.) Further, the ALJ
reasonably found that Fabi’s instructions fell short of this
standard. The ALJ specifically found that the sole ‘‘instruc-
tion’’ in the record—‘‘Cincotti’s instruction that ‘if anything
did not look, where it should be’ ’’ Kane and Caucci should
stop demolition immediately—was not adequate because it
9 Fabi asserts that ‘‘under Commission precedent’’—namely
Capitol Tunneling, 15 O.S.H. Cas. (BNA) 1304 (1991)—Fabi was
‘‘permitted TTT to rely on Mr. Kane’s experience to perform the
demolition of the slab properly and safely.’’ Pet’r Br. 8. As
previously noted, supra note 7, Capitol Tunneling is an unreviewed
ALJ decision without precedential value.
9
‘‘provides no advice as to what condition he was referring and
provides no guidance or precautions as to what conditions
would be hazardous’’ and thus ‘‘provide[s] no measures for
detecting and correcting hazards, and gives the employees
the discretion to determine what was unsafe.’’ ALJ Dec. at
18. It is hard to quibble with the ALJ’s characterization of
Cincotti’s vague instruction.
C. Citation 1, Item 2
Third, Fabi challenges the citation for serious violation of
29 C.F.R. § 1926.503(a)(1), for which it was assessed a $5,000
penalty. Section 1926.503(a)(1) provides:
The following training provisions supplement and clarify
the requirements of § 1926.21 regarding the hazards ad-
dressed in subpart M of this part.
(a) Training Program.
(1) The employer shall provide a training program for
each employee who might be exposed to fall hazards.
The program shall enable each employee to recognize
the hazards of falling and shall train each employee in
the procedures to be followed in order to minimize
these hazards.
29 C.F.R. § 1926.503(a)(1).10 Fabi challenges the citation on
two grounds. We find neither persuasive.
First, Fabi asserts the Commission was mistaken in con-
struing section 1926.503(a)(1) to require a training program
that addresses fall hazards specific to each task employees
perform. The Commission has interpreted section
1926.503(a)(1) to require that an employer ‘‘provide the in-
structions that a reasonably prudent employer would have
given in the same circumstances,’’ Sec’y v. N & N Contrac-
tors, Inc., 18 O.S.H. Cas. (BNA) 2121, 2126 (2000). We defer
to the Commission’s interpretation because it has been
adopted by the Secretary, see Respondent Br. 31, and it
‘‘sensibly conforms to the purpose and wording of the regula-
10 Subpart M contains regulations addressing ‘‘Fall Protection.’’
10
tions,’ ’’ Montgomery KONE, Inc., 234 F.3d at 722. The
Commission’s focus on the task-specific fall hazard training is
consistent with the language of section 1926.503(a)(1) which
expressly requires that an employer provide training ‘‘for
each employee who might be exposed to fall hazards’’ that will
‘‘enable each employee to recognize the hazards of falling’’
and ‘‘to minimize these hazards.’’ (Emphases added.)
Second, Fabi contends that even under the Commission’s
interpretation of the regulation, Fabi complied with its obli-
gation to train employees regarding fall hazards during demo-
lition. The ALJ found, however, that, while Fabi trained
some employees on ‘‘floor hole openings, perimeter protec-
tion, and personal protective equipment during various phas-
es of the job,’’ it did not instruct ‘‘all of their employees in the
recognition and avoidance of fall hazards while engaged in
demolition, a component of their work activity.’’ ALJ Dec. at
10. This finding is supported by the record, which contains
no evidence that any employee received fall protection train-
ing specifically tailored to demolition or that Caucci received
any fall protection training whatsoever before being assigned
to demolish the slab but contains affirmative evidence that at
least one employee received no safety training. See Tr. 726
(testimony of compliance officer that one interviewed employ-
ee received no safety training and others were ‘‘vague TTT as
to what type of training’’ they received). Accordingly, we
conclude the ALJ permissibly determined that Fabi did not
satisfy its duty to instruct demolition employees on demolition
fall hazards.
D. Citation 1, Item 3a
Fourth, Fabi challenges the citation for serious violation of
29 C.F.R. § 1926.501(a)(2), carrying a $7,000 penalty. Sec-
tion 1926.501(a)(2) provides:
The employer shall determine if the walking/working
surfaces on which its employees are to work have the
strength and structural integrity to support employees
safely. Employees shall be allowed to work on those
11
surfaces only when the surfaces have the requisite
strength and structural integrity.
The Commission determined that Fabi violated this standard
because it ‘‘failed to exercise reasonable diligence in deter-
mining what effect, if any, the jack hammering and the
creation of a hole would have on the strength and structural
integrity of the slab,’’ noting that Fabi’s ‘‘visual review of the
slab and its structural drawings only revealed the integrity of
the slab undisturbed.’’ ALJ Dec. at 12.
Fabi challenges the Commission’s interpretation of
1926.501(a)(2) to prohibit work on a surface that is made
unsound solely as a result of demolition, in the apparent belief
that it has a duty to ensure a safe working surface only at the
start of a project. The Commission reasonably determined
otherwise. The Commission construes the second sentence of
the regulation to require that the surface be sound whenever
workers are present: ‘‘The plain language of the second
sentence clearly permits employees ‘to work on those surfaces
only when the surfaces have the requisite strength and
structural integrity.’ ’’ Sec’y v. Agra Erectors, Inc., 19 O.S.H.
Cas. (BNA) 1063, 1066 (2000) (citation omitted). Because, as
the Commission indicated, its construction is consistent with
the plain language of the regulation’s second sentence and the
Secretary has agreed, Respondent Br. 34, we defer to the
Commission’s interpretation, Montgomery KONE, Inc., 234
F.3d at 722.
Fabi also contends the Commission’s finding of a section
1926.501(a)(2) violation is inconsistent with the ALJ’s own
finding, in rejecting a separate citation against Fabi,11 that
11 The Secretary had cited Fabi for violating 29 C.F.R.
§ 1926.850(a) which provides in relevant part:
Prior to permitting employees to start demolition operations,
an engineering survey shall be made by a competent person, of
the structure to determine the condition of the framing, floors,
and walls, and possibility of unplanned collapse of any portion
of the structure. Any adjacent structure where employees may
be exposed shall also be similarly checked.
The ALJ vacated this citation.
12
site superintendent Troy Blevin competently ‘‘conducted a
pre-demolition survey TTT to determine the condition of the
slabs,’’ which included ‘‘visual observations combined with his
review of the demolition plans and structural plans’’ and ‘‘took
into the consideration of [sic] the possibility of unplanned
collapse.’’ ALJ Dec. at 15. We see no such inconsistency.
The ALJ based her finding of violation on Fabi’s failure ‘‘to
make a determination as to what the [sic] effect the pilot hole
would have upon the strength and structural integrity of the
slab TTT prior to the assignment.’’ ALJ Dec. at 11. In so
finding, the ALJ reasonably relied on ‘‘evidence from several
witnesses which supports a finding that the strength and
structural integrity of the slab was not maintained as the pilot
hole was created,’’ a proposition that should surprise no one.12
ALJ Dec. at 11; Tr. 553 (testimony of expert witness Donald
Orr); Tr. 555–57 (testimony of OSHA Engineering Chief
Mohammad Ayub).13
E. Citation 1, Item 4
Fifth, Fabi challenges the citation for serious violation of 29
C.F.R. § 1926.501(b)(1) for which Fabi was assessed a $7,000
penalty. Section 1926.501(b)(1) provides:
Unprotected sides and edges. Each employee on a walk-
ing/working surface (horizontal and vertical surface) with
an unprotected side or edge which is 6 feet (1.8 m) or
more above a lower level shall be protected from falling
12 Fabi also points to various other examinations by Fabi
employees of both the slabs and the rebar, Pet’r Br. 12. but none of
them took into account the effect of drilling on the slab’s integrity.
13 Fabi also argues that the ALJ’s violation finding ‘‘ignores the
critical fact that prior to the elevator slab’s demolition, six slabs
were safely demolished using exactly the same method as used in
demolishing the elevator slab.’’ Pet’r Br. 14. This ‘‘critical fact’’
simply means that in those instances the integrity was not weak-
ened sufficiently to cause the slab to completely fall apart; it does
not undermine the ALJ’s logical finding, supported by the expert
testimony, that drilling holes into the concrete weakens the integri-
ty of the surface.
13
by the use of guardrail systems, safety net systems, or
personal fall arrest systems.
We uphold the ALJ’s finding that Fabi violated this regula-
tion.
The ALJ based her finding of violation on the testimony of
Compliance Officer Bernard DeZalia who visited the site on
June 14, 1995 in response to a formal complaint about fall
protection. DeZalia testified that he saw four men on the
36th floor stripping reshoring forms without any fall protec-
tion despite the proximity to an elevator shaft and to the
unguarded perimeter of the building, which had fall distances
of, respectively, 10 feet and 6 stories. DeZalia testified that
he saw four workers ‘‘immediately adjacent to’’ the elevator
shaft and two workers about 10–15 feet from the edge of the
building, although he stated ‘‘they had been closer when we
approached.’’ Tr. 688–89. Fabi challenges DeZalia’s credi-
bility, pointing to Blevin’s testimony that the employees were
at least 18–21 feet from the edge and 14–16 feet from the
elevator shaft. The ALJ was entitled to credit DeZalia over
Blevin and we ‘‘ ‘must accept the ALJ’s credibility determina-
tions TTT unless they are patently unsupportable.’ ’’ AJP
Constr., Inc. v. Sec’y, 357 F.3d 70, 73 (D.C. Cir. 2004) (quoting
Tasty Baking Co. v. Nat’l Labor Relations Bd., 254 F.3d 114,
124 (D.C. Cir. 2001)). The ALJ’s determination here was
not.14
F. Citation 1, Item 5a
Sixth, Fabi challenges the citation for serious violation of 29
C.F.R. § 1926.501(b)(4)(i) and the accompanying $2,500 penal-
ty. Section 1926.501(b)(4)(i) provides: ‘‘Each employee on
walking/working surfaces shall be protected from falling
through holes (including skylights) more than 6 feet (1.8 m)
above lower levels, by personal fall arrest systems, covers, or
guardrail systems erected around such holes.’’ The ALJ
14 Fabi argues that the ALJ’s credibility determination was
inconsistent with the decision in Sec’y v. Delta Dry Wall, Inc., 15
OSHC (BNA) 1291, 1292–93 (1991), which is an unreviewed ALJ
decision of no precedential value. See supra note 7.
14
based this finding of violation as well on DeZalia’s testimony.
DeZalia testified that on the 39th floor he observed a partially
unguarded shaftway being used for access by ladders, pre-
senting a 10–foot fall distance to the floor below. He further
testified that Fabi carpenter Eugene Kabbeko told him Fabi
employees had used the shaft ladders to access the 36th floor
and identified as Fabi employees workers DeZalia saw climb-
ing the ladder to the 39th floor. Fabi challenges the credibili-
ty of both DeZalia and Kabbeko15 but again we accept the
ALJ’s credibility determinations because they are not ‘‘ ‘pat-
ently unsupportable.’ ’’ AJP Constr., Inc., 357 F.3d at 73
(quoting Tasty Baking Co., 254 F.3d at 124).16
G. Citation 1, Items 6a and 6b
Seventh, Fabi challenges the citation, and accompanying
$2,500 penalty, for serious violations of 29 C.F.R.
§ 1926.1052(b)(2) and 1926.1052(c)(1). These regulations pro-
vide:
(b) Temporary service. The following requirements apply
to all stairways as indicated:
TTTT
(2) Except during stairway construction, foot traffic is
prohibited on skeleton metal stairs where permanent
treads and/or landings are to be installed at a later
date, unless the stairs are fitted with secured tempo-
15 Fabi also asserts that to establish a violation of section
1926.501(b)(4)(i) the Secretary must demonstrate that access was
‘‘on a continuous and sustained basis,’’ Pet’r Br. 18, citing as
authority Sec’y v. Century Steel Erectors, Inc, 13 O.S.H. Cas.
(BNA) 1484, 1485 (1987), which is an unreviewed ALJ decision of no
precedential value. See supra note 7.
16 The ALJ acknowledged that Kabbekko was subsequently
discharged—according to Blevin because he refused to install fall
safety protection—and that Blevin and Kabbeko were obviously not
on good terms. Nonetheless, she expressly stated that, ‘‘in light of
the fact [Kabbeko’s] firing occurred after the inspection, the under-
signed does not automatically discredit his identification of Fabi
employees during the inspection.’’ ALJ Dec. at 25.
15
rary treads and landings long enough to cover the
entire tread and/or landing area.
TTTT
(c) Stairrails and handrails. The following requirements
apply to all stairways as indicated:
(1) Stairways having four or more risers or rising
more than 30 inches (76 cm), whichever is less, shall be
equipped with:
(i) At least one handrail; and
(ii) One stairrail system along each unprotected side
or edge.
The ALJ based these violations also on DeZalia’s testimony.
DeZalia testified that metal stairways running from the 31st
to the 34th floors had unfilled treads and landings and lacked
handrails. He further testified that he observed two persons
using the stairs, whom Kabbeko identified as Fabi employees,
and that a Fabi carpenter had told him Fabi employees used
the stairways.
Again Fabi urges the court to prefer Blevin’s contrary
testimony over DeZalia’s but again we accept the ALJ’s
permissible credibility findings. See AJP Constr., Inc., 357
F.3d at 73.17 Fabi also asserts it did not violate section
1926.1052(b)(2) or (c)(1) because it neither installed nor con-
trolled the stairway. Under Commission precedent, to estab-
lish the multi-employer worksite defense an employer must
prove by a preponderance of the evidence that it ‘‘(1) did not
create the hazardous condition, (2) did not control the viola-
tive condition such that it could have realistically abated the
condition in the manner required by the standard, and (3)
took reasonable alternative steps to protect its employees or
did not have (and could not have had with the exercise of
reasonable diligence) notice that the violative condition was
hazardous.’’ Sec’y v. Capform, Inc., 16 O.S.H. Cas. (BNA)
2040, 2041 (1994). The ALJ found there was no evidence that
17 Fabi again relies on an unreviewed ALJ decision to assail
DeZalia’s credibility. See Sec’y v. Tampa Bay Plumbing & Mech.,
Inc., 13 O.S.H. Cas. (BNA) 1045, 1047 (1987).
16
Fabi ‘‘took any action to restrict Fabi employees from using
the stairs’’ and that ‘‘with the exercise of reasonable diligence
Fabi could have known of the presence of the violative
condition,’’ which was ‘‘in plain view.’’ ALJ Dec. at 28.
Accordingly, the ALJ reasonably rejected Fabi’s proffered
defense.
H. Citation 3, Items 1a and 1b
Finally, Fabi challenges the citation (with no penalty) for
other than serious violations of 29 C.F.R. § 1926.502(i)(3)-(4)
which provides:
(I) Covers. Covers for holes in floors, roofs, and other
walking/working surfaces shall meet the following re-
quirements:
TTTT
(3) All covers shall be secured when installed so as to
prevent accidental displacement by the wind, equip-
ment, or employees.
(4) All covers shall be color coded or they shall be
marked with the word ‘‘HOLE’’ or ‘‘COVER’’ to pro-
vide warning of the hazard.
The ALJ based the findings of violation on the testimony of
Compliance Officer Kenneth Steinburg, who inspected the
site on July 6, 1995 in response to a complaint. Steinburg
testified he saw an unmarked, unsecured 3x3 plywood board
covering a hole near the 41st floor elevator. Steinburg’s
testimony provides substantial evidentiary support for the
ALJ’s findings that the elevator was used by Fabi employees
and that Fabi employees therefore ‘‘were exposed to the cited
condition.’’ ALJ Dec. at 29.18
18 Fabi challenges Steinburg’s credibility based on the unre-
viewed ALJ decision in Sec’y v. Wachsherger Roofing, 12 O.S.H.
Cas. (BNA) 1101 (1984), which has no precedential value. See
supra note 7.
17
***
For the foregoing reasons, the petition for review is denied.
So ordered.