United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2007 Decided November 27, 2007
No. 06-1244
FABI CONSTRUCTION COMPANY, INC. AND
PRO MANAGEMENT GROUP,
PETITIONERS
v.
SECRETARY OF LABOR,
RESPONDENT
On Petition for Review of an Order of the
Occupational Safety and Health Administration
Joseph P. Paranac, Jr. argued the cause and filed the briefs
for petitioners.
John Shortall, Attorney, U.S. Department of Labor, argued
the cause for respondent. With him on the brief were Joseph M.
Woodward, Associate Solicitor, and Nathaniel I. Spiller, Senior
Counselor. Michael P. Doyle, Attorney, entered an appearance.
Steven D. Gordon argued the cause for amici curiae
Building Contractors Association of New Jersey, et al. in
support of petitioners. With him on the brief were Michael A.
Branca and Stephen C. Yohay.
2
Before: GINSBURG, Chief Judge, and SENTELLE and
BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Petitioners, Fabi Construction,
Inc. and Pro Management Group, seek review of the
Occupational Safety and Health Review Commission’s
(Commission’s) affirmance of several citations for violations of
the Occupational Safety and Health Act of 1970, 29 U.S.C.
§§ 651–678, (OSH Act) and regulations promulgated under it.
We deny review of the Commission’s affirmance of violations
of the General Duty Clause, 29 U.S.C. § 654(a)(1), and 29
C.F.R. § 1926.703(e)(1), and its treatment of Petitioners as a
single entity for OSH Act purposes, as these decisions are
reasonable and supported by substantial evidence. Because the
Secretary of Labor’s (Secretary’s) interpretation of “formwork”
is unreasonable and failed to provide fair notice to Petitioners,
we grant the petition for review of the 29 C.F.R.
§ 1926.703(a)(1) violation. Accordingly, we vacate the
respective citation and fine. Finally, we grant the petition for
review of the $7,000 fine assessed for Petitioners’ violation of
§ 1926.703(e)(1). We remand this fine to the Commission for
lack of findings sufficient to support raising the $2,500 fine
proposed by the Secretary.
I. Background
Keating Building Corporation, the general contractor for an
expansion of the Tropicana Hotel and Casino in Atlantic City,
New Jersey, hired Fabi Construction, Inc., and its management
company, Pro Management Group, to place concrete for its
Tropicana project. Fabi and Pro Management provided labor,
materials, and equipment for completing the concrete work.
These materials included pre-cast concrete tubs, or “Filigree
3
slabs,” which Fabi placed on site, reinforced with steel (both top
steel and reinforcing longitudinal steel, or “rebar”), and filled
with additional concrete to create the floors of the structure.
Petitioners hired Forrest Consultants and Mid-State Filigree
Systems to convert the engineer’s structural drawings into “shop
drawings,” plans Petitioners used on-site that detailed the
placement of building components such as top steel and rebar.
Inspectors from Site-Blauvelt, a private company, and Atlantic
City, checked the steel placement’s conformity with the shop
drawings before Fabi poured concrete. Because wet concrete is
substantially heavier than dry concrete, it requires additional
support, or “ shores,” while drying, or “curing.” Fabi provided
and constructed formwork to support the curing concrete.
On October 30, 2003, while Petitioners were pouring
concrete on the eighth level of what was intended to be a ten-
story parking garage, levels four through eight collapsed, killing
four of Fabi’s employees and injuring twenty-one others.
OSHA investigated the accident and cited Fabi and Pro
Management for five serious violations and one willful violation
of the OSH Act. Willful violations can carry a penalty of up to
$70,000, while serious violations are limited to penalties of up
to $7,000. 29 U.S.C. §§ 666(a) & (b).
Fabi and Pro Management contested the citations before the
Commission. In accordance with 29 U.S.C. § 661(j), the
Commission appointed an Administrative Law Judge (ALJ) to
hear the case. Just before the hearing, the Secretary withdrew
two of the citations for serious violations. After a twelve-day
hearing, the ALJ issued a Decision and Order on March 2, 2006,
vacating one serious violation, one instance of a serious
violation, and the “willful” classification for another violation,
and affirming all other citations. In doing so, the ALJ raised the
fine for one of the serious violations from $2,500 to $7,000. In
addition, the ALJ held that Fabi and Pro Management are a
4
“single entity” for OSH Act purposes. Fabi and Pro
Management filed a petition for discretionary review with the
Commission on April 20, 2006. The Commission declined to
review the case, so the ALJ’s Decision and Order became the
Commission’s final order on May 1, 2006. See id. § 661(j).
Fabi and Pro Management petition this Court for review of
all the Commission’s adverse findings. First, Petitioners
challenge the Commission’s finding that they violated the OSH
Act’s General Duty Clause, 29 U.S.C. § 654(a)(1), by failing to
place top steel in accordance with shop drawings and rebar in
accordance with industry practice. They allege that these
findings are unsupported by substantial evidence. Second, they
challenge the Commission’s finding that Petitioners violated 29
C.F.R. § 1926.703(a)(1) by failing to maintain formwork so that
it would be capable of supporting the imposed loads without
failure. They claim that the Secretary’s interpretation of
“formwork” to include permanent parts of the structure is
unreasonable, failed to provide fair notice as required by the
Fifth Amendment’s Due Process Clause, and was unsupported
by substantial evidence. Third, they challenge the
Commission’s finding that they violated 29 C.F.R.
§ 1926.703(e)(1) by removing formwork without properly
testing the structure’s strength. Fabi and Pro Management
allege that the Secretary’s interpretation of “removal” of
formwork to include the step when contractors engage in
“cracking,” or lowering supporting steel several inches to allow
the structure to dry in its natural position, is unreasonable. They
also allege that the Commission’s assessment of a $7,000 fine
when the Secretary only proposed $2,500 was arbitrary and
capricious. Finally, Petitioners challenge the Commission’s
finding that they can be treated as a single entity for OSH Act
purposes.
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II. Analysis
We affirm the Commission’s decisions unless they are
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); see also AJP
Constr., Inc. v. Sec’y of Labor, 357 F.3d 70, 72–73 (D.C. Cir.
2004). In addition, we give “substantial deference” to an
agency’s interpretation of its regulations, only setting it aside if
the plain language of the regulation or “other indications of the
[agency’s] intent” require another interpretation. Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); see
Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 377
(1998); see also S.G. Loewendick & Sons, Inc. v. Reich, 70 F.3d
1291, 1294 (D.C. Cir. 1995) (deferring to the Secretary’s
interpretations of the OSH Act and regulations, not the
Commission’s, because the Secretary is the policymaker for
OSHA). Deference to the Secretary’s interpretation of her
regulations may even hold when that interpretation first appears
in the course of litigation. Auer v. Robbins, 519 U.S. 452, 462
(1997).
The OSH Act requires that “findings of the Commission
with respect to questions of fact, if supported by substantial
evidence on the record considered as a whole” be conclusive.
29 U.S.C. § 660(a); see also Fabi Constr. Co., Inc. v. Sec’y of
Labor (Fabi I), 370 F.3d 29, 33 (D.C. Cir. 2004). Under the
“substantial evidence” standard, this Court must uphold the
Commission’s findings of fact as long as there is enough
evidence in the record for a reasonable mind to agree with the
Commission. Universal Camera Corp. v. NLRB, 340 U.S. 474,
477 (1951); AJP Constr., 357 F.3d at 73. In addition, we
“ ‘must accept the ALJ’s credibility determinations . . . unless
they are patently unsupportable.’ ” Fabi I, 370 F.3d at 39
(quoting AJP Constr., 357 F.3d at 73).
6
A. General Duty Clause Violation, 29 U.S.C. § 654(a)(1)
We begin with the Commission’s findings that Fabi and Pro
Management violated the OSH Act’s General Duty Clause in
two ways: first, that Petitioners failed to place top steel in
accordance with shop drawings, and second, that they failed to
place rebar in accordance with industry practice. Petitioners
allege that the Commission’s findings are unreasonable and
unsupported by substantial evidence. For the reasons set forth
below, we disagree.
The General Duty Clause requires an employer to provide
a working environment “free from recognized hazards that are
causing or are likely to cause death or serious physical harm to
his employees.” 29 U.S.C. § 654(a)(1). To establish a violation
of the General Duty Clause, the Secretary must establish that:
(1) an activity or condition in the employer’s workplace
presented a hazard to an employee, (2) either the employer or
the industry recognized the condition or activity as a hazard,
(3) the hazard was likely to or actually caused death or serious
physical harm, and (4) a feasible means to eliminate or
materially reduce the hazard existed. Int’l Union, United Auto.,
Aerospace & Agric. Implement Workers of Am. v. Gen.
Dynamics Land Sys. Div., 815 F.2d 1570, 1577 (D.C. Cir. 1987).
In other words, “the Secretary must prove that a reasonably
prudent employer familiar with the circumstances of the industry
would have protected against the hazard in the manner specified
by the Secretary’s citation.” L.R. Willson & Sons, Inc. v.
Occupational Safety & Health Rev. Comm’n, 698 F.2d 507, 513
(D.C. Cir. 1983).
1. Top Steel
Petitioners first contend that their placement of top steel
conformed to the requirements of the General Duty Clause.
7
Specifically, they assert that the Secretary failed to show by
substantial evidence that they violated the fourth element of the
General Duty Clause for two reasons: first, they abated the
hazard by following Mid-State Filigree Systems’s shop
drawings for placing top steel, and second, the abatement
method the Secretary proposed—following Forrest
Consultants’s shop drawings—was infeasible. Petitioners claim
that by abutting the top steel to the crash wall and inserting the
top steel into the columns an average of four inches, they abated
the hazard. They claim that this placement satisfied their duties
under this clause because they followed the shop drawings that
Mid-State prepared for the placement of top steel. Mid-State’s
drawings did not show the top steel-to-column connections at all
and showed the top steel stopping before the crash wall without
attaching to the wall in any way. But based on testimony from
one of the Secretary’s experts and the face of the shop drawings
themselves, the ALJ found that Forrest Consultants prepared the
shop drawings that were meant to be used for top steel
placement, not Mid-State. In making her finding, the ALJ cited
a Mid-State shop drawing as persuasive evidence that it was not
meant for the purpose Petitioners assert. Mid-State’s drawing
contains blown-up depictions of cross-sections of slabs and
some of the reinforcing steel to be placed within them. But
instead of detailing the placement of top steel within the slab,
the drawing points to the top part of the slab and writes, “TOP
STEEL AS REQ’D (BY OTHERS).” The ALJ found that the
“others” indicated in Mid-State’s drawing were Forrest
Consultants. As support, the ALJ cited a shop drawing that
Forrest Consultants prepared and titled:
PARKING LEVELS 5 THROUGH 9
SLAB
TOP STEEL
8
One of the Secretary’s experts testified that Forrest
Consultants’s drawing required Petitioners to attach the top steel
to the crash wall and to embed the top steel into the columns
about eight inches. Petitioners discount this expert’s credibility
because he had trouble determining the precise embedment
depth in a structural drawing made on the same scale. But
“‘[w]e must accept the ALJ’s credibility determinations . . .
unless they are patently unsupportable.’” AJP Constr., 357 F.3d
at 73 (quoting Tasty Baking Co. v. NLRB, 254 F.3d 114, 124
(D.C. Cir. 2001)). Forrest Consultants’s drawing, though on a
small scale, indicates the placement of the top steel in a
pronounced way, using large, criss-crossed lines. The ALJ saw
this drawing and took it into account when she assessed the
witness’s credibility. In addition, the ALJ relied not only on this
expert’s opinion, but her own assessment of the shop drawings
in the record to make the determination that Forrest
Consultants’s shop drawings were intended to be used for the
placement of top steel. This evidence is not insubstantial.
Petitioners also claim that the Secretary failed to put forth
substantial evidence of a feasible method to abate the top steel
hazard. Int’l Union, 815 F.2d at 1577. It is undisputed that if
Fabi and Pro Management had followed Forrest Consultants’s
shop drawings for the placement of top steel, the crash wall that
ran along the parking garage’s exterior would have blocked the
proper embedment. But Petitioners mischaracterize the
Secretary’s proposed method of abatement. The Secretary does
not contend that Petitioners should follow the shop drawings
when they are physically impossible to carry out. She only
contends that Petitioners should follow the correct shop
drawings, and when questions arise, follow industry practice by
contacting the structural engineer about discrepancies. There is
ample evidence in the record to support the finding that
contacting the structural engineer is a feasible method of
abatement. In fact, Fabi and Pro Management did just that when
9
a discrepancy arose in a shop drawing earlier in the construction
project. There is no support to Petitioners’ contention that the
Secretary failed to put forth a feasible method of abating the top
steel hazard.
Last, Petitioners contend that they were entitled to rely upon
the expertise of specialists who completed the shop drawings
and approved the placement of top steel before Fabi poured
concrete into the pre-cast filigree tubs. For this proposition, they
cite Secretary of Labor v. Sasser Electric & Manufacturing Co.,
11 O.S.H. Cas. (BNA) 2133 (Rev. Comm’n 1984), a
Commission decision which established that reasonable reliance
upon a specialist to prevent hazards outside the contractor’s area
of knowledge and over which the contractor has little to no
control, can negate the knowledge required for a General Duty
Clause violation. Id. at 2136. As the ALJ properly found,
Sasser does not control this situation. In Sasser, a contractor
that had no experience operating cranes hired a crane operator
to move a generator onto a trailer. Id. The operator, who had
sole control over the operation of the crane, successfully loaded
the generator onto a trailer, and then suddenly swung the crane
into some power lines. Id. The entire operation took several
minutes at most. The Commission found that the contractor
reasonably relied upon the expertise of this specialist to
complete his work without creating a hazard. Id.
Sasser does not relieve Petitioners of liability. First, the
facts in Sasser are wholly unlike those of this case. Unlike the
contractor in Sasser, Petitioners are experienced concrete
contractors that share expertise in the interpretation of shop
drawings. Also, unlike Sasser, the subcontractors who created
the shop drawings did not have sole control over them; the
President of both Fabi and Pro Management testified that he
reviewed the shop drawings, and in one instance, even directed
a revision in them. Nor did the inspectors who approved the
10
placement of reinforcing steel have sole control over it;
Petitioners interpreted the shop drawings and physically placed
the steel themselves. Even if Petitioners’ level of control was
not apparent, Sasser itself contemplates imposing liability
“when the cited hazard is under the control of a separate
company, [because] the employer has a duty to protect its
employees who are exposed to the hazards.” Id. Here, the
hazard is not under the sole control of another company; instead,
Petitioners share control over it. Sharing control is not
relinquishing control. Finally, the hazard in this case took place
over the span of several weeks at the direction of Petitioners’
management team and by the hands of Petitioners’ employees.
Petitioners had weeks to recognize and abate the hazard, unlike
the few minutes in Sasser. In short, Sasser requires reasonable
reliance on contractors. Therefore, it does not apply when an
employer has reason, by way of expertise, control, and time, to
foresee a danger to its employees. The ALJ had considerably
more evidence than is required by our deferential standard of
review to support her finding that Petitioners could not
reasonably rely on specialists to relieve themselves of liability
in this situation.
2. Rebar
Petitioners next contend that their placement of rebar
conformed to the requirements of the General Duty Clause.
Specifically, they allege that the ALJ’s finding that they “knew
or should have known” that the placement of rebar violated
industry practice was unsupported by substantial evidence and
unreasonable. It is undisputed that the approved shop drawings
did not show rebar passing through the columns along one of the
exterior walls in the structure. Fabi and Pro Management argue
that they fulfilled their duty by placing rebar in accordance with
these drawings. But the Secretary contends that Petitioners’
duty extends beyond blindly following the shop drawings when
11
the contractor actually or constructively knows that the drawings
violate industry custom.
There is enough evidence in the record, considered as a
whole, for a reasonable mind to conclude that Petitioners knew
their placement of rebar violated industry practice. The record
includes testimony that Petitioners at least had constructive
knowledge that failing to run rebar into columns violated
industry practice. One of the Secretary’s experts testified upon
cross-examination that a contractor like Fabi would know the
shop drawings erroneously failed to show rebar running through
the building’s columns because “it’s just typical that there’s
some bar reinforcing that goes into the support.” The ALJ found
this expert to be credible and qualified to render an expert
opinion on industry practice. Additionally, there is some
evidence in the record that Pro Management had actual
knowledge of this industry practice. Pro Management’s
Superintendent on the worksite testified that he was familiar
with the American Concrete Institute codes relevant to the work
he supervised, codes which require rebar to pass through
concrete columns. Finally, the ALJ found that Fabi is an
experienced concrete contractor, and as such, sufficiently
experienced to know that the shop drawings called for rebar
placement that violated industry custom and practice.
However, we cannot stop our analysis of the evidence
relating to Petitioners’ knowledge of industry practice here. It
is the responsibility of the reviewing court to “take account of
anything in the record that ‘fairly detracts’ from the weight of
the evidence supporting the [Commission’s] conclusion.”
General Elec. Co. v. NLRB, 117 F.3d 627, 630 (D.C. Cir. 1997)
(citing Universal Camera, 340 U.S. at 488). In addition to the
evidence compiled above, the record contains a post-accident
report by OSHA that states the “structural engineer was in a
unique position to address the integrity of the slab beam
12
connection to the column since he had access to all the
information, including the intent of his design.” The report’s
phrasing suggests that no other person can be expected to
double-check the engineer’s judgment in this area. But
overwhelming evidence flatly rejects this proposition.
Subcontractors create shop drawings from the engineer’s plans,
and in doing so must detail the size and placement of reinforcing
steel in the flooring-column connection. Contractors like Fabi
and Pro Management are also responsible for looking over the
shop drawings, and in one instance Petitioners’ management
even contacted the engineer to change an inaccurate design plan.
One of the Secretary’s experts testified that when there is a
problem with the shop drawings, the superintendent “should
contact the structural engineer and say, ‘There’s a problem here,
what can we do to fix it?’” Under our deferential standard of
review, “we must uphold the [Commission’s] decision even if
we would have reached a different result upon de novo review.”
Federated Logistics & Operations v. NLRB, 400 F.3d 920, 923
(D.C. Cir. 2005). Taking into account the whole record, there is
still enough evidence for a reasonable mind to conclude that
Fabi and Pro Management either knew or should have known
that they violated industry practice when they failed to run rebar
through the building’s columns.
Four trade associations, all composed of construction
contractors of one sort or another, argue that Petitioners are
shielded from liability here under the so-called Spearin doctrine
drawn from United States v. Spearin, 248 U.S. 132 (1918). We
disagree. Spearin does not shield Petitioners from liability here.
Spearin dealt with contractual obligations – not OSH Act
obligations to provide a safe worksite. It “held that ‘if [a]
contractor is bound to build according to plans and
specifications prepared by the owner, the contractor will not be
responsible for the consequences of defects in the plans and
specifications.’” KiSKA Constr. Corp. v. Wash. Metro. Area
13
Transit Auth. 321 F.3d 1151, 1162 (D.C. Cir. 2003) (quoting
Spearin, 248 U.S. at 136). The KiSKA court distinguished
Spearin. In KiSKA, a contractor attempted to rely on what it
purported to be the “plain meaning” of the contract language,
but this Court found that “grammatical errors . . . render the
ambiguity of the . . . provisions sufficiently obvious that KiSKA
had a duty to inquire as to the true meaning of the contract.”
Id. at 1164. KiSKA provides more support for the Secretary’s
position that obvious inconsistencies in a shop drawing should
put the contractor on notice to inquire about them instead of
“slavishly following” incorrect drawings. See Sec’y of Labor v.
Fabi Constr., Inc., 21 O.S.H. Cas. (BNA) 1595, 1599 (Rev.
Comm’n 2006) (“While the contractor may lack the engineering
expertise to overrule or ignore the shop drawings, to hold that he
must slavishly follow them ignores the fact that the contractor
has practical experience in the field and is in a position to know
when the shop drawings are contrary to generally accepted
practice.”). As was the case in KiSKA, Spearin does not extend
to the facts before us. Petitioners knew or should have known
that the drawings upon which they relied created a serious
hazard for their employees.
Petitioners also argue that the Secretary proposed an
arbitrary and infeasible method of abating the rebar hazard.
Specifically, they argue that the ALJ’s decision about a feasible
method of abatement is incoherent. Petitioners cite a portion of
the ALJ’s Decision and Order which states “the only feasible
abatement method is to install the reinforcing steel in
conformance with the drawings in the first instance.” Fabi
Constr., 21 O.S.H. Cas. (BNA) at 1599 (emphasis added). The
ALJ later states that feasible abatement could have been
accomplished by “stopping to consult the structural engineer to
ensure that the shop drawings were either properly drawn or
interpreted.” Id. at 1601. While the ALJ’s unnecessary use of
the word “only” is imprecise, it does not deprive the decision of
14
reason. The Commission reasonably found upon ample
evidence in the record that a feasible method of abatement
would have been for Petitioners to contact the structural
engineer. Petitioners did not do so; therefore, the Commission
reasonably found they failed to abate the hazard.
Last, Petitioners again attempt to rely on Sasser to relieve
themselves of liability for violating the General Duty Clause by
failing to place rebar in accordance with industry practice. For
the reasons stated above, their reliance is misplaced.
B. Formwork Maintenance Violation, 29 C.F.R.
§ 1926.703(a)(1)
Petitioners also challenge the ALJ’s finding that they
violated 29 C.F.R. § 1926.703(a)(1) by failing to maintain
formwork so that it would be capable of supporting the imposed
loads without failure. Specifically, they claim that the
Secretary’s interpretation of “formwork” to include permanent
parts of the structure is unreasonable, failed to provide fair
notice as required by the Fifth Amendment’s Due Process
Clause, and was unsupported by substantial evidence. For the
reasons set forth below, we believe the Secretary’s interpretation
of “formwork” to include permanent parts of structures is
unreasonable, and further, that announcing this interpretation for
the first time in an adjudicatory proceeding deprived Petitioners
of fair notice. For these reasons, we grant the petition for review
of this violation and vacate both the citation and fine.
Section 1926.703(a)(1) requires formwork to be “designed,
fabricated, erected, supported, braced and maintained so that it
will be capable of supporting without failure all vertical and
lateral loads that may reasonably be anticipated to be applied to
the formwork.” The Secretary cited Fabi and Pro Management
because the slabs, composed of pre-cast concrete filigree tubs,
15
reinforcing steel, and concrete poured on site, were not capable
of supporting anticipated loads without failure. Petitioners
claim that the plain language of “formwork” in the context of
the regulation cannot include permanent parts of structures like
slabs. We agree. Since the Secretary only cited Petitioners for
failing to maintain slabs, which are permanent parts of the
structure, this violation cannot stand.
We review Commission decisions “for consistency with the
Secretary’s interpretation and with the language of the
regulation, and for reasonableness.” S.G. Loewendick, 70 F.3d
at 1296. The text of the regulation provides some support for
the Secretary’s interpretation, but when read in the context of
the whole regulation, the Secretary’s interpretation fails to make
sense. The regulation defines formwork as “the total system of
support for freshly placed or partially cured concrete, including
the mold or sheeting (form) that is in contact with the concrete
as well as all supporting members including shores, reshores,
hardware, braces, and related hardware.” 29 C.F.R.
§ 1926.700(b)(2). “It is hornbook law that the use of the word
‘including’ indicates that the specified list . . . that follows is
illustrative, not exclusive.” P.R. Mar. Shipping Auth. v. ICC,
645 F.2d 1102, 1112 n.26 (D.C. Cir. 1981). The enumerated list
of supporting members—shores, reshores, and the like—is not
exhaustive. Seemingly, from this isolated text, “total system of
support” can include any part of the structure that supports
curing concrete. The illustrative list does, however, lend weight
to Petitioners’ argument that formwork only includes temporary
parts of structures. All the examples listed in the definition are
on site only until the concrete cures.
The background regulatory structure demonstrates that the
Secretary’s new interpretation of formwork to include parts of
the permanent structure is beyond the bounds of reasonableness.
29 C.F.R. § 1926.703(a)(1) specifies that formwork “which is
16
designed . . . and maintained in conformance with the Appendix
to this section will be deemed to meet the requirements of this
paragraph.” The Appendix to that section provides a
“nonmandatory guideline to assist employers in complying with
formwork requirements” in the regulations. It expressly
approves
[f]ormwork which has been designed, fabricated, erected,
braced, supported, and maintained in accordance with
Sections 6 and 7 of the American National Standard for
Construction and Demolition Operations–Concrete and
Masonry Work . . . .
Within the referenced ANSI sections, Paragraph 7.1.1 provides
that:
Formwork shall be designed, fabricated, erected, supported,
braced, and maintained so that it will support all vertical
and lateral loads that may be applied until such loads can be
supported by the structure.
Given this tacit approval and assumption that formwork is
designed to hold loads in place pending the support of those
loads by the completed structure, the Secretary’s attempt to
define formwork as including permanent structure cannot be
upheld.
Not only does “formwork” appear in the definitions section
and the section under which the Petitioners received a citation,
but it also appears in § 1926.703(e), which sets forth certain
procedures prior to the “removal of formwork.” 29 C.F.R.
§ 1926.703(e). Viewed under the canon of statutory
construction known as noscitur a sociis, there are some definite
limits to the Secretary’s interpretation of formwork. Noscitur a
sociis applies where a word in a regulation is ambiguous, but
17
other text within the regulation can clarify its meaning. See Cal.
Indep. Sys. Operator Corp. v. FERC, 372 F.3d 395, 400 (D.C.
Cir. 2004). Petitioners reason that any part of a structure that
cannot be removed, even if it is part of the “total system of
support,” cannot be considered “formwork.” We agree. The
plain language of the regulation excludes permanent parts of the
structure from the definition of formwork. Although we give
“substantial deference” to the Secretary’s interpretation of
OSHA regulations, we must set it aside if the plain language of
the regulation requires another interpretation. Shalala, 512 U.S.
at 512. As a result, nonremovable parts of the structure, like
slabs that make up the floor of the parking garage at issue in this
incident, cannot be considered formwork. Therefore, any hazard
created by Petitioners’ failure to maintain the slabs cannot be the
basis for a violation of § 1926.703(a)(1).
The near uniformity in the concrete industry’s manuals and
codes in defining formwork as temporary parts of structures
provides further support for the unreasonableness of the
Secretary’s interpretation. See, e.g., HUGH BROOKS,
ENCYCLOPEDIA OF BUILDING AND CONSTRUCTION TERMS 184
(1983) (defining formwork as “temporary wood or metal
surfaces used to contain concrete until it hardens, after which
they are removed”); JIM FRANE, DICTIONARY OF CONSTRUCTION
TERMS 216 (C.M. Harris ed., 1975) (defining formwork as “a
temporary construction to contain wet concrete in the required
shape while it is cast and setting”); W.C. HUNTINGTON,
BUILDING CONSTRUCTION 143 (1981) (defining formwork as a
“temporary structure that can be disassembled in a relatively
short period of time, that is economical, and that will support the
excessive dead and live loads”); M.K. HURD, FORMWORK FOR
CONCRETE 2-1 (6th ed. 1995) (defining formwork as a
“temporary structure that supports its own weight and that of the
freshly placed concrete”) (emphasis added to all). Practically,
it makes sense that formwork is temporary. Its purpose is to
18
support freshly poured concrete while it cures. Because wet
concrete is heavier than dry concrete, formwork is no longer
necessary when concrete is dry.
The issue is complicated somewhat by a relatively new
form of concrete construction that Petitioners used on the
Tropicana project. This kind of construction uses what
Petitioners refer to as “a pre-cast concrete slab and beam that
serve as a permanent formwork for the cast-in-place concrete
poured on site.” Petitioners’ Br. at xv (emphasis added). One
of the Secretary’s experts also referred to the pre-cast concrete
tubs as “form.” Essentially, the pre-cast slabs and beams form
a concrete tub into which Petitioners place reinforcing steel and
pour concrete. These elements make up the floor of the
structure. Although this testimony supports the Secretary’s
theory that form can be permanent in a colloquial sense, the text
of § 1926.703(e) precludes permanent structures from the
definition of formwork in the context of the regulation.
Even the ALJ admitted the Secretary’s interpretation of
formwork is “strained.” Fabi Constr., 21 O.S.H. Cas. (BNA) at
1606 (“While the Commission is sympathetic to the employer’s
objection to the Secretary’s strained interpretation of the
standard, it cannot be concluded that her interpretation is
unreasonable.”). “In an adjudicatory proceeding, the
Commission should not strain the plain and natural meaning of
words . . . .” Bethlehem Steel Corp. v. Occupational Safety &
Health Rev. Comm’n, 573 F.2d 157, 161 (3d Cir. 1978). There
is a clear purpose behind this precedent of refusing to support
strained interpretations of agency regulations: To do so “for the
purpose of alleviating a perceived safety hazard is to delay the
day when the occupational safety and health regulations will be
written in clear and concise language so that employers will be
better able to understand and observe them.” Diamond Roofing
Co. v. Occupational Safety & Health Rev. Comm’n, 528 F.2d
19
645, 650 (5th Cir. 1976). We are hopeful that in the more than
three intervening decades since the U.S. Court of Appeals for
the Fifth Circuit decided Diamond Roofing, regulations have in
fact become more clear. We do not wish to disturb the
longstanding precedent for declining to “press [the] limits [of]
judicial construction” when OSHA can easily amend the
regulation “under the flexible regulation promulgating structure”
of the OSH Act. Id. at 649; see 29 U.S.C. § 655 (detailing the
procedures the Secretary may use to promulgate OSHA
standards). If the Secretary wants to expand the definition of
formwork to include permanent parts of structures like concrete
slabs, she has alternate means to do so outside the adjudicative
process. See Bethlehem Steel, 573 F.2d at 161 (“If the language
[in the regulation] is faulty, the Secretary has the means and the
obligation to amend.”).
Even if the Secretary’s interpretation were reasonable,
announcing it for the first time in the context of this adjudication
deprives Petitioners of fair notice. Where, as here, a party first
receives actual notice of a proscribed activity through a citation,
it implicates the Due Process Clause of the Fifth Amendment.
See Martin v. Occupational Safety & Health Rev. Comm’n, 499
U.S. 144, 158 (1991) (noting that “the decision to use a citation
as the initial means for announcing a particular interpretation
may bear on the adequacy of notice to regulated parties”). Due
process requires the government to provide fair notice before
depriving a party of property. Jones v. Flowers, 547 U.S. 220,
226 (2006).
Here, Petitioners received no actual warning from OSHA
officials that § 1926.703(a)(1) would include slabs in its
definition of “formwork.” See General Elec. Co. v. EPA, 53
F.3d 1324, 1329 (D.C. Cir. 1995) (opining that an agency
warning prior to a citation would provide the required notice).
As in General Electric v. EPA, we must look to the text of the
20
regulation itself to determine whether it provides the required
notice of the Secretary’s interpretation:
[W]e must ask whether the regulated party received, or
should have received, notice of the agency’s interpretation
in the most obvious way of all: by reading the regulations.
If, by reviewing the regulations and other public statements
issued by the agency, a regulated party acting in good faith
would be able to identify, with “ascertainable certainty,” the
standards with which the agency expects parties to
conform, then the agency has fairly notified a petitioner of
the agency’s interpretation.
Id. (citing Diamond Roofing, 528 F.2d at 649). As we discussed
above, the regulations at issue do not give Petitioners fair notice
of the Secretary’s interpretation. Prior to Petitioners’ citation,
the Secretary made no announcement or any other indication of
her intention to define formwork in this manner. Furthermore,
the overwhelming agreement among industry manuals and codes
that formwork is temporary similarly fails to provide notice. For
the reasons stated above, after a good-faith review of “the
regulations and other public statements issued by the agency, a
regulated party acting in good faith” would not be able “to
identify, with ascertainable certainty, the standards with which
the agency expects parties to conform.” AJP Constr., 357 F.3d
at 76 (quoting General Elec., 53 F.3d at 1329). For these
reasons, we grant the petition for review and vacate both the
citation and fine.
C. Formwork Removal Violation, 29 C.F.R. § 1926.703(e)
Third, Petitioners challenge the ALJ’s finding that they
violated 29 C.F.R. § 1926.703(e)(1) by removing formwork
without properly testing the structure’s strength. Fabi and Pro
Management allege that the Secretary’s interpretation of
21
“removal” of formwork to include the step when contractors
engage in “cracking,” or lowering supporting steel several
inches to allow the structure to dry in its natural position, is
unreasonable. They also allege that the ALJ’s assessment of a
$7,000 fine when the Secretary only proposed $2,500 was
arbitrary and capricious.
First, we assess the reasonableness of the Secretary’s
interpretation of “removal” in the context of the regulation.
Section 1926.703(e)(1) requires forms and shores to “not be
removed until the employer determines that the concrete has
gained sufficient strength to support its weight and
superimposed loads.” An employer can comply with this
regulation by following “[t]he plans and specifications . . . for
removal of forms and shores,” or by testing the concrete “with
an appropriate ASTM standard test method designed to indicate
the concrete compressive strength, and the test results indicate
that the concrete has gained sufficient strength to support its
weight and superimposed loads.” Id. There are two ways to
fulfill the regulation’s requirements: either follow a plan for
removing formwork, or use an appropriate method to test the
concrete’s strength before removing formwork. Petitioners used
the second option, but they did so seven days after pouring the
concrete. Four to five days after pouring concrete, Petitioners
“cracked” the shores that rested against the underside of the
curing concrete slabs. “Cracking” is the practice of lowering
shores several inches to allow the concrete room to sag a bit to
its natural position before retightening the shores against the
underside of the concrete. The Secretary argued, and the ALJ
agreed, that “cracking” is equivalent to removing shores, for the
simple reason that “the slab does not know that the shores have
been cracked 2 inches or it has been removed.” Fabi. Constr.,
21 O.S.H. Cas. (BNA) at 1604.
22
“The removal of forms and shores,” 29 C.F.R.
§ 1926.703(e)(1), can be interpreted to mean only the final
removal of shores, or to include the initial cracking of shores
that takes place weeks before shores are finally removed. Since
the definition of “removal” in the regulation is ambiguous, we
must give substantial deference to the Secretary’s interpretation,
and will only set it aside if it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.”
Allentown, 522 U.S. at 377. Petitioners’ and the Secretary’s
experts testified to the fact that after workmen crack the shores,
the shores no longer support the underside of the drying concrete
slab. Since the purpose of shoring is to support curing concrete,
it is “removed” when cracked. The Secretary’s interpretation is
reasonable, especially in light of the stated purpose of the OSH
Act—“to assure so far as possible every working man and
woman in the Nation safe and healthful working conditions and
to preserve our human resources.” 29 U.S.C. § 651(b). For this
reason, we deny review of this citation.
We do, however, grant review of the fine assessed for
Petitioners’ § 1926.703(e)(1) violation. We review this fine
under our familiar arbitrary and capricious standard. The
Secretary proposed a $2,500 fine for this citation. The ALJ
“assessed [the fine] as proposed” by the Secretary, and without
further explanation, raised the fine to $7,000. Fabi. Constr., 21
O.S.H. Cas. (BNA) at 1608. There must be an “adequate factual
basis” for almost tripling the penalty proposed by the Secretary.
See Sec’y of Labor v. J.A. Jones Constr. Co., 15 O.S.H. Cas.
(BNA) 2201, 2202 (Rev. Comm’n 1993). The ALJ apparently
did not recognize she was deviating from the Secretary’s
proposed fine of $2,500; in any event, she did not explain her
reason for imposing a fine of $7,000. Therefore, we remand the
fine to the Commission to explain why it deviated from the
$2,500 fine proposed by the Secretary.
23
D. Single-Entity Rule
Finally, Petitioners challenge the ALJ’s finding that they
can be treated as a single entity for OSH Act purposes. The
Commission treats companies as a single entity when (1) they
share a common worksite, (2) have interrelated and integrated
operations, and (3) share a common president, management,
supervision, or ownership. Sec’y of Labor v. C.T. Taylor Co. &
Espirit Constructors, Inc., 20 O.S.H. Cas. (BNA) 1083, 1086
(Rev. Comm’n 2003). This rule allows the Secretary to use any
violations against companies treated as a single entity against
them in either their individual or combined-entity capacities in
later proceedings. Id. at 1087 n.7.
We decline to address this argument because Petitioners
failed to raise it before the Commission. “No objection that has
not been urged before the Commission shall be considered by
the court, unless the failure or neglect to urge such objection
shall be excused because of extraordinary circumstances.” 29
U.S.C. § 660(a). Petitioners did not object to being treated as a
single entity before the Commission; therefore, they have
waived their argument that the two companies should be treated
separately for OSHA purposes. For this reason, we deny this
petition for review.
Even if Petitioners had not waived this argument, there is
substantial evidence that Fabi Construction and Pro
Management can be treated as a single entity for OSHA
purposes. The Secretary elicited testimony from the President
of both entities that he is the sole owner, officer, and shareholder
of both companies. The companies share a common main office
and office workers, and employees of Pro Management
supervise Fabi Construction employees at the worksite. Pro
Management’s Superintendent on the worksite even identified
himself as an employee of Fabi Construction to an OSHA
24
official. The three prongs of the “single-entity test” are met: the
companies “share a common worksite, have interrelated and
integrated operations, and share a common president,
management, supervision, or ownership.” Sec’y of Labor v.
Trinity Indus., Inc., 9 O.S.H. Cas. (BNA) 1515, 1518 (Rev.
Comm’n 1981).
III. Conclusion
For the reasons set forth above, the petition for review is
Granted in part and denied in part.