USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 96-1807
P. GIOIOSO & SONS, INC.,
Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION AND CYNTHIA A.
METZLER, ACTING SECRETARY OF LABOR,
Respondents.
_________________________
PETITION FOR REVIEW OF AN ORDER OF
THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
_________________________
Before
Selya, Circuit Judge, _____________
Coffin and Bownes, Senior Circuit Judges. _____________________
_________________________
Richard D. Wayne, with whom Lisa Schneider and Hinckley, _________________ ______________ _________
Allen & Snyder were on brief, for petitioner. ______________
Barbara A.W. McConnell, with whom J. Davitt McAteer, Acting ______________________ _________________
Solicitor of Labor, Joseph M. Woodward, Associate Solicitor, and ___________________
Ann Rosenthal, Counsel for Appellate Litigation, were on brief, _____________
for respondents.
_________________________
June 13, 1997
________________________
SELYA, Circuit Judge. The petitioner, P. Gioioso & SELYA, Circuit Judge. _____________
Sons, Inc. (Gioioso), seeks review of a final order of the
Occupational Safety and Health Review Commission (the Commission)
determining that it violated the Occupational Safety and Health
Act of 1970 (OSH Act), 19 U.S.C. 651-678 (1994). The petition
purports to raise six distinct objections to the Commission's
order. The Secretary of Labor (the Secretary) maintains that we
lack jurisdiction to hear three of these objections because
Gioioso failed to raise them when it petitioned the Commission
for review of the hearing examiner's adverse decision. The
remaining objections, the Secretary tells us, are without force.
The jurisdictional question is new to this court. We
resolve it favorably to the Secretary and dispose of certain
objections on that ground. We deny the remnants of the petition
on the merits.
I. THE STATUTORY SCHEME I. THE STATUTORY SCHEME
Congress enacted the OSH Act "to assure so far as
possible . . . safe and healthful working conditions." 29 U.S.C.
651(b). The Act spins an intricate administrative web which,
among other things, separates rulemaking, enforcement, and
adjudication. See Martin v. OSHRC, 499 U.S. 144, 151 (1991). In ___ ______ _____
general, the Secretary sets mandatory safety and health standards
applicable to particular businesses. See 29 U.S.C. 651(b)(3). ___
The Occupational Safety and Health Administration (OSHA) enforces
those standards. See id. 658-659, 666. Citations issued in ___ ___
respect to alleged violations are adjudicated by the Commission.
2
See id. 659, 661. ___ ___
The Commission operates in the first instance through
administrative law judges (ALJs), who function as hearing
officers. See id. 661(j). After hearing a contested matter, ___ ___
the ALJ prepares a report. See 29 C.F.R. 2200.90(a) (1996). A ___
member of the Commission may direct review of a report on his own
motion (as long as he does so within 30 days after the docketing
date, see id. 2200.92(b)), or on application of an aggrieved ___ ___
party. See id. 2200.91(a). The instrument by which an ___ ___
aggrieved party solicits the Commission's attention is called a
petition for discretionary review (PDR), and the party must file
it within a prescribed 20-day period following the docketing
date. See id. 2200.91(b). The ALJ's report becomes the final ___ ___
order of the Commission unless review is granted "on or before
the thirtieth day following the [docketing] date." Id. ___
2200.90(d). In other words, the Commission's failure to act on a
PDR within the stipulated 30-day period is tantamount to a denial
of review.
Regardless of whether a final order comes about through
action or inaction on the Commission's part, an aggrieved party
may seek judicial review of it in the appropriate court of
appeals. See 29 U.S.C. 660(a). ___
II. THE ORIGINS OF THE DISPUTE II. THE ORIGINS OF THE DISPUTE
Gioioso is in the construction industry, specializing
in utilities. Some time ago, it contracted with the
Massachusetts Water Resources Authority (MWRA) to lay water lines
3
in Winthrop, Massachusetts. During a lengthy period beginning in
1993, it laid several thousand feet of pipe under or near the
access road to MWRA's Deer Island work site.
In the course of its endeavors, Gioioso dug an 18-foot-
long trench at the intersection of Shirley and Taft Avenues. On
October 6, 1994, Gioioso's foreman, Salvatore Santone, and a
laborer, Fernando Camara, were standing in this trench. At that
moment, several OSHA compliance officers happened to pass by the
work site.1 The meandering traffic afforded the compliance
officers a clear view of the trench and one of their number,
Edward Wells, did not like what he saw: the trench's walls were
unsloped and unsupported, the two workmen standing in the trench
were visible only from the shoulders up, and a ten-foot section
of cast metal pipe was suspended aloft from the bucket of a piece
of heavy construction equipment located at one end of the trench.
Wells sounded the alarm (figuratively speaking) and the driver
stopped the car.
One of Wells' colleagues, Patrick Griffin, exited the
vehicle and hurried toward the trench. Griffin noticed that the
dangling pipe was connected to the bucket of a large excavating
machine by only a single attachment point and watched as it
rotated into a position parallel to the trench and directly over
the workmen's heads. When Griffin reached the trench, he
____________________
1The exquisite timing of this coincidence suggests that
Emerson's epigram ("Wherever a man commits a crime, God finds a
witness." Ralph Waldo Emerson, "Natural Religion," Essays ______
(1875)) may apply to breaches of administrative regulations as
well as to violations of the criminal code.
4
discovered that it measured no less than six feet deep and four
feet wide and had been dug in gravelly soil. No trench box was
in place to guard against a cave-in (although Santone claimed
that he and Camara had been measuring the trench to ascertain if
it could accommodate one). Moreover, because the trench lay
adjacent to the only road providing access to Deer Island,
vibrations from traffic increased the risk of a cave-in. A gas
pipe, six inches in diameter, traversed the width of the trench.
Wells corroborated many of Griffin's observations.
In due course, OSHA issued citations alleging three
serious violations (one of which the Secretary later withdrew)
and a repeat violation.2 The two serious violations (which we
shall label "A" and "B") were as follows:
A. Permitting employees to work beneath
the suspended pipe in violation of 29 C.F.R.
1926.651(e) (1996) (which instructs that
"[n]o employee shall be permitted underneath
____________________
2A serious violation occurs
if there is 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 . . . unless the employer did not, and
could not with the exercise of reasonable
diligence, know of the presence of the
violation.
29 U.S.C. 666(k). While the OSH Act does not define the term
"repeat violation," courts typically require proof that the
respondent violated the same standard on an earlier occasion in a
substantially similar fashion. See, e.g., D & S Grading Co. v. ___ ____ __________________
Secretary of Labor, 899 F.2d 1145, 1147 (11th Cir. 1990); Bunge __________________ _____
Corp. v. Secretary of Labor, 638 F.2d 831, 836-37 (5th Cir. _____ ___________________
1981); George Hyman Constr. Co. v. OSHRC, 582 F.2d 834, 838-39 ________________________ _____
(4th Cir. 1978).
5
loads handled by lifting or digging
equipment").
B. Permitting workers to use a ladder
that did not extend at least three feet above
the top of the trench in violation of 29
C.F.R. 1926.1053(b)(1) (1996) (which
directs that "[w]hen portable ladders are
used for access to an upper landing surface,
the ladder side rails shall extend at least 3
feet (.9m) above the upper landing").
The repeat violation (which we shall label "C") was as
follows:
C. Failing to provide an adequate
protective system for workers in an unshored
trench, in violation of 29 C.F.R.
1926.652(a)(1) (1996) (which provides that,
except when excavations are made entirely in
stable rock or are less than five feet in
depth, "[e]ach employee in an excavation
shall be protected from cave-ins by an
adequate protective system").
The petitioner filed a timely notice of contest. At
the outset of the hearing, it moved for disqualification on the
ground that the ALJ, several years earlier (while employed as an
attorney in the Department of Labor), had prosecuted one or more
similar cases involving Gioioso. The ALJ refused to recuse
himself. After considering the evidence, he found that the
violations had in fact occurred, accepted OSHA's
characterizations of them, and imposed penalties of $1,600 for
each of the two serious violations and $8,000 for the repeat
violation.
Gioioso petitioned the Commission for discretionary
review of the ALJ's decision. Its PDR called attention to only
three issues (described infra Part IV). The PDR generated no _____
6
interest and the ALJ's decision ripened into the Commission's
final order.3 Gioioso then sought a judicial anodyne.
III. THE JURISDICTIONAL ISSUE III. THE JURISDICTIONAL ISSUE
We turn first to the jurisdictional quandary. In
pressing its cause before this court, the petitioner raises not
only the three issues which it enumerated in the PDR but also
three additional issues, namely, whether the ALJ erred in (1)
failing to recuse himself, (2) characterizing violation B as
serious, and (3) assessing substantial penalties. The question,
then, is whether Gioioso's failure to press these points in the
PDR constitutes a forfeiture of the right to bring them before a
reviewing court. We think that it does.
We begin with bedrock. In the administrative state,
exhaustion of administrative remedies is "generally required."
Weinberger v. Salfi, 422 U.S. 749, 765 (1975). This requirement __________ _____
is more than a matter of form. "Insisting on exhaustion forces
parties to take administrative proceedings seriously, allows
administrative agencies an opportunity to correct their own
errors, and potentially avoids the need for judicial involvement
altogether." Portela-Gonzalez v. Secretary of the Navy, 109 F.3d ________________ _____________________
74, 79 (1st Cir. 1997). In this way, the exhaustion doctrine
creates a win-win situation: adhering to it simultaneously
enhances the efficacy of the agency, fosters judicial efficiency,
____________________
3By its inaction, the Commission effectively adopted the
ALJ's recommended findings and report. We sometimes will refer
to these findings as if they had been made by the Commission in
the first instance.
7
and safeguards the integrity of the inter-branch review
relationship. See Power Plant Div., Brown & Root, Inc. v. OSHRC, ___ ____________________________________ _____
673 F.2d 111, 113 (5th Cir. 1982); see also Ezratty v. ___ ____ _______
Commonwealth of Puerto Rico, 648 F.2d 770, 774 (1st Cir. 1981) ____________________________
(stating that the "doctrine serves interests of accuracy,
efficiency, agency autonomy and judicial economy").
The OSH Act warmly embraces the exhaustion doctrine.
It provides in relevant part that persons such as Gioioso who are
"adversely affected or aggrieved by an order of the Commission"
may obtain judicial review in the "court of appeals for the
circuit in which the violation is alleged to have occurred." 29
U.S.C. 660(a). The right to judicial review, however, is
carefully cabined. Congress specifically directed that "[n]o
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." Id. The regulations complement the statute, ___
explaining that an aggrieved party's failure to file a PDR "may
foreclose court review of the objections to the [ALJ's]
decision." 29 C.F.R. 2200.91(f).
Interestingly, the commentary accompanying this part of
the regulations directs the reader to the Third Circuit's opinion
in Keystone Roofing Co. v. OSHRC, 539 F.2d 960 (3d Cir. 1976), ____________________ _____
for guidance. The Keystone court considered the question of ________
whether the OSH Act "permits a reviewing court to consider an
employer's objection to an OSHA citation which was argued to the
8
OSHA hearing examiner, but which was neither the subject of a
petition to the . . . [Commission] for discretionary review, 29
C.F.R. 2200.91, nor the subject of review by the full
Commission at the direction of a single member, 29 U.S.C.
661(i)." Id. at 961. The court answered this question in the ___
negative. See id. at 964. ___ ___
Although the rule announced in Keystone makes eminently ________
good sense both textually (that is, as a matter of statutory
interpretation) and practically (that is, as a matter of policy),
the petitioner attempts to elude its grasp. Gioioso first notes
that the regulations say only that an aggrieved party's failure
to file a PDR "may foreclose court review of . . . objections to ___
the [ALJ's] decision." 29 C.F.R. 2200.91(f) (emphasis
supplied). Gioioso contends that the use of the word "may"
implies that raising the objections in the PDR is not a
prerequisite to judicial review. We disagree. For one thing,
the regulations cannot alter the statutory scheme. For another
thing, the statute leaves a door ajar for cases in which
extraordinary circumstances obtain. See 29 U.S.C. 660(a). The ___
regulation's use of the verb "may" is no doubt intended to
preserve this narrow exception to the exhaustion doctrine, not to
widen it beyond all recognition.4
The petitioner has a fallback position. It maintains
that it in fact "urged" the three omitted issues "before the
____________________
4We need not dwell on the exception itself as the petitioner
does not even venture to suggest that extraordinary circumstances
existed in this case.
9
Commission" in the statutorily required sense. The linchpin of
this assertion is the petitioner's claim that urging an objection
before the ALJ is functionally and legally equivalent to urging
it before the Commission. The Fifth Circuit has encouraged the
petitioner's view, suggesting in dicta that an objection might be
preserved for judicial review if the aggrieved party articulated
it sufficiently before the ALJ. See Cleveland Consolidated, Inc. ___ ____________________________
v. OSHRC, 649 F.2d 1160, 1165 (5th Cir. 1981) (assuming, without _____
deciding, that an issue had been preserved for judicial review
because it was "evident from the record below," even though the
aggrieved party did not specify it in the PDR).
This dictum distorts the clear congressional intent.5
We believe it follows from the bifurcation of duties contained in
the statutory scheme, as well as from plain meaning, that the OSH
Act precludes judicial review of those objections not urged in
front of the Commission. To be specific, the OSH Act
acknowledges the existence of two separate adjudicators the
Commission and the ALJs and assigns very different
responsibilities to each. The Commission members, whom the
President appoints based on their training, expertise, and
experience, see 29 U.S.C. 661(a), carry out the broad ___
adjudicatory functions required by the OSH Act. Conversely, the
ALJs' functions are case-specific. This division of labor
____________________
5This dictum goes much further than the position originally
taken by the Fifth Circuit in McGowan v. Marshall, 604 F.2d 885, _______ ________
889-91 (5th Cir. 1979). Our preference is for that court's
earlier iteration.
10
carries with it disparate responsibilities, leaving in the
Commission's hands the task of ensuring the development of a
cohesive body of decisional rules which comport with the
objectives of the OSH Act.
Given this framework, we think that the wiser course is
to construe the statute according to its letter. Only if an
issue is actually called to the attention of the Commission,
through the PDR or by a Commission member's spontaneous
initiative, will the Commission have the informed opportunity
that Congress intended a meaningful chance to correct a mistake
before an order becomes final. Thus, the model that Congress
envisioned can function optimally only if the aggrieved party
alerts the Commission to those issues which that party thinks are
worthy of review. Accord McGowan v. Marshall, 604 F.2d 885, 890- ______ _______ ________
91 (5th Cir. 1979); Keystone, 539 F.2d at 963. ________
The language set forth in the OSH Act drives home the
point. While the statute recognizes the existence of both the
Commission and the ALJs, compare 661(a) with 661(e), it _______ ____
specifically precludes judicial review of those issues which
"h[ave] not been urged before the Commission." 29 U.S.C. ______________________
660(a) (emphasis supplied). In our view, the omission of the
term "ALJ" or words of like import from section 660(a) can only
be regarded as intentional, not inadvertent. See Russello v. ___ ________
United States, 464 U.S. 16, 23 (1983) (explaining that "where ______________
Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally
11
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion") (citation and internal
quotation marks omitted); 2A Norman J. Singer, Sutherland Stat. ________________
Const. 47.23 (5th ed. 1992) (explaining that the inference that ______
an omission is an intentional exclusion is strengthened "where a
thing is provided in one part of the statute and omitted in
another"). In short, we agree with the Fifth Circuit's
statement, albeit in a case that predates Cleveland Consolidated, ______________________
that "[t]he language of section 660(a) indicates that proceedings
targeted towards the Commission, not those before the ALJs, are
the predicate to judicial review." McGowan, 604 F.2d at 890. _______
The language of the statute is not only plain, but it
is also fortified by the regulations (which, if ambiguity lurks,
are deserving of deference, see Chevron U.S.A., Inc. v. Natural ___ ____________________ _______
Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)),6 and ________________________________
by the agency's stated adherence to the Third Circuit's seminal
decision in Keystone, 539 F.2d at 964. Against this backdrop, we ________
are persuaded that merely raising an issue before the ALJ no
matter how clearly fails to preserve the issue for judicial
review. Something more is needed: the issue thereafter must be
____________________
6The regulations underscore the importance that the agency
attaches to raising an issue before the Commission. 29 C.F.R. ______ ___ __________
2200.91(d) exemplifies this emphasis. It provides, inter alia, _____ ____
that a PDR should state specifically why review should be
directed, including whether the ALJ's "decision raises an
important question of law, policy or discretion" and "whether
review by the Commission will resolve a question about which the
Commission's [ALJs] have rendered differing opinions." These
directives would be emptied of meaning if we construed the
statute to relieve the aggrieved party of any responsibility to
identify issues with particularity in the PDR itself.
12
brought to the Commission's attention either by its inclusion in
a PDR or by the unilateral act of a single commissioner.
Consistent with this conclusion, we next examine the
PDR which Gioioso filed. We find absolutely no reference in it
either to the alleged mischaracterization of the ladder violation
or to the supposedly excessive nature of the penalty assessments.
Because Gioioso failed to urge these objections before the
Commission, we are without jurisdiction to entertain them.
The recusal issue presents a variation on the theme.
Although the PDR did not list this objection as an issue for
review, there was a glancing mention of it in a footnote.7 The
petitioner claims to have preserved the issue in this fashion.
But the exhaustion doctrine demands more than oblique references,
and the statute's use of the verb "urge" in this contest is
telling. See Webster's Collegiate Dictionary 1300 (10th ed. ___
1993) (defining "urge" as meaning "to present, advocate, or
demand earnestly or pressingly" or "to declare, advance, or press
earnestly a statement, argument, charge or claim"); The American
Heritage Dictionary of the English Language 1965 (3d ed. 1992)
(defining "urge" as "[t]o entreat earnestly and often repeatedly;
____________________
7The footnote reads in its entirety:
Gioioso moved to recuse the ALJ based upon
the fact that the ALJ had previously
prosecuted Gioioso for similar citations
while a solicitor and that prosecution could
impact the ALJ's judgment in this case. The
ALJ denied the motion. Later, Complainant
introduced into evidence the settlement
agreement in that case to establish the
appropriateness of the penalty in this case.
13
exhort . . . [t]o present a forceful argument, claim, or case").
In an OSHA case, an objection is not "urged" in the requisite
sense (and will not be deemed preserved for judicial review)
unless the PDR conveys the substance of the objection face up and
squarely, in a manner reasonably calculated to alert the
Commission to the crux of the perceived problem.8
The petitioner's treatment of the recusal issue fails
to meet this benchmark. As the PDR reads, the matter of recusal
is little more than a passing comment, designed to provide
information buttressing another argument rather than to carve out
an independent ground for inquiry. Since the footnote failed to
place the Commission on proper notice, it did not suffice to
preserve the issue of recusal for judicial review.
The upshot of the matter is simply this: in order to
effectuate the statute that Congress wrote and assure the
efficiency, effectiveness, and autonomy of the administrative
structure, an aggrieved party desiring to preserve an issue for
judicial review must raise it before the ALJ, articulate it
clearly in its PDR, and offer a modicum of developed
argumentation in support of it. See Durez Div. of Occidental ___ __________________________
Chem. Corp. v. OSHA, 906 F.2d 1, 5 (D.C. Cir. 1990) (refusing to ___________ ____
____________________
8To be sure, some courts have speculated that "[b]road
language in a petition for review might be sufficient to satisfy
this requirement." Power Plant, 659 F.2d at 1294 (quoting ____________
Cleveland Consolidated, 649 F.2d at 1164-65). But short of _______________________
holding that the Commission is satisfactorily alerted to an issue
if it appears anywhere in the record below (a proposition that we
already have rejected), no court has suggested that so
nondescript a reference as is contained in the quoted footnote is
enough to satisfy the imperative of section 660(a).
14
hear an issue listed as one of five issues in the PDR, but
neither discussed nor supported by citations of authority
therein); see also 29 C.F.R. 2200.91(d) ("[A] petition should ___ ____
concisely state the portions of the decision for which review is
sought."); cf. Paterson-Leitch Co. v. Massachusetts Mun. ___ _____________________ ___________________
Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988) (holding ___________________
that to preserve an issue for review on an appeal from a
magistrate's report to a district judge, a party must "spell out
his arguments squarely and distinctly"). Because the petitioner
did not satisfy this criterion with respect to three of its six
putative issues, we lack jurisdiction to hear those issues in
this proceeding.
IV. THE MERITS IV. THE MERITS
Our conclusion that we lack jurisdiction to hear three
of the petitioner's six objections marks only the end of the
beginning. We still must resolve the three preserved claims,
namely, (1) whether substantial evidence supports the finding
that the petitioner's employees worked below a suspended pipe
(Violation A); (2) whether the Commission erred in finding that
the petitioner's employees were exposed to trench-related hazards
without an adequate protection system (Violation C); and (3)
whether the record supports the rejection of the petitioner's
unpreventable employee misconduct defense. We discuss each of
these contentions separately, pausing first to delineate certain
principles affecting the standard of appellate review.
A. Principles Affecting Review. A. Principles Affecting Review. ___________________________
15
A reviewing court customarily defers to an agency's
reasonable interpretation of a statute that it administers. See ___
Chevron, 467 U.S. at 843-44 & n.11; Strickland v. Commissioner, _______ __________ _____________
Me. Dep't of Human Servs., 96 F.3d 542, 547 (1st Cir. 1996). The _________________________
impetus for deference escalates when the agency interprets its
own regulations. See Lyng v. Payne, 476 U.S. 926, 939 (1986); ___ ____ _____
Udall v. Tallman, 380 U.S. 1, 16 (1965). In the final analysis, _____ _______
a reviewing court should respect an agency's interpretation of
its own regulation as long as the interpretation meshes sensibly
with the regulation's language and purpose. See Martin, 499 U.S. ___ ______
at 151. These principles apply to the regulations that the
Secretary of Labor promulgated to implement the OSH Act. See id. ___ ___
at 152.
The OSH Act, see 29 U.S.C. 660(a), incorporates the ___
basic judicial review provisions of the Administrative Procedure
Act. Under those provisions, agency determinations should be
upheld unless they are "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C.
706(2)(A) (1994).
The Commission's findings of fact are conclusive as
long as they are "supported by substantial evidence on the record
considered as a whole." 29 U.S.C. 660(a). The Court
delineated the contours of the "substantial evidence" standard
nearly half a century ago in Universal Camera Corp. v. NLRB, 340 ______________________ ____
U.S. 474, 477, 491 (1951), and they are by now too familiar to
warrant repetition. We mention specially, however, that the
16
standard applies with undiminished force where, as here, an
administrative body, like the Commission, does not itself hear
witnesses but instead adopts an ALJ's findings of fact. See ___
Truck Drivers & Helpers Union, Local No. 170 v. NLRB, 993 F.2d ______________________________________________ ____
990, 998-99 (1st Cir. 1993). As a corollary to the standard, the
hearing examiner's credibility determinations are entitled to
great deference. See General Dynamics Corp. v. OSHRC, 599 F.2d ___ ______________________ _____
453, 463 (1st Cir. 1979).
B. Violation A. B. Violation A. ___________
The Commission found that Gioioso breached the
excavation standard, 29 C.F.R. 1926.651(e), which mandates that
"[n]o employee shall be permitted underneath loads handled by
lifting or digging equipment." The petitioner assigns error. We
see none.
The citation underpinning Violation A states in
relevant part that Gioioso's personnel "were exposed to serious
injury while working in a trench in which a section of 12" water
line was being lowered." In adjudicating this citation, the ALJ
credited the testimony of two compliance officers who described
seeing a ten-foot section of cast metal pipe suspended from the
bucket of an excavating machine by a chain sling. As the pipe
moved, it rotated around the single point of suspension and
passed over the heads of the men who were working in the trench.
While the observations of the two compliance officers were not
entirely congruent, the ALJ determined that the modest
discrepancies in their accounts were easily explained by the
17
officers' differing vantage points. He also found that a
photograph taken shortly thereafter corroborated their testimony.
Keeping in mind the frailty of Gioioso's rebuttal its foreman,
Santone, stated only that he did not recall the pipe passing
overhead there is no principled basis on which a court could
justify substituting its judgment for the factfinder's. See ___
General Dynamics, 599 F.2d at 463. ________________
C. Violation C. C. Violation C. ___________
The Commission found that Gioioso failed to provide an
adequate protective system within the trench, thereby violating
29 C.F.R. 1926.652(a)(1). The petitioner again spies error.
We do not.
It is undisputed that the petitioner neglected to
furnish a support system, shield system, or other adequate
safeguarding within the trench as required by 29 C.F.R.
1926.652(c). Additionally, the petitioner failed to comply with
the provisions of 29 C.F.R. 1926.652(b)(1)(i) (which delineates
a protection option accomplished by the gradual sloping of the
excavation's walls). But the regulations exempt some unsloped
excavations that are less than five feet in depth, see id. ___ ___
1926.652(a)(1)(ii), and the petitioner seeks the shelter of this
exemption. The petitioner hypothesizes that its workers never
were exposed to the hazards inherent in an excavation exceeding
five feet in depth because they were standing on a pipe that
traversed the width of the trench. The ALJ rejected this
defense: although he believed it was unlikely that the workmen
18
were standing on the floor of the trench when the compliance
officers arrived, he found that "no matter where they were
standing, [they] were still inside a trench that was not
protected in accordance with 1926.652(a)(1)." We review this
essentially legal judgment de novo.
In reaching this conclusion, the ALJ relied heavily on
Ford Dev. Corp., 15 O.S.H. Cas. (BNA) 2003 (1992). There, the ________________
employer claimed that its employees were supposed to stand on a
pipe while in a trench, and that in so doing they effectively
would be exposed to a depth of only 3.5 feet (the distance from
the upper surface of the pipe to the top of the trench). The
Commission rejected this argument. It noted that the depth
exception applies only if an excavation is "less than 5 feet
(1.52m) in depth and examination of the ground by a competent
person provides no indication of a potential cave-in." 29 C.F.R.
1926.652(a)(1)(ii). The Commission then explained that "[t]he
standard speaks of the depth of the trench, not of the position
of employees in the trench." Ford Dev. Corp., 15 O.S.H. Cas. at _______________
2011. On this basis, the Commission held that the depth
exception did not apply. See id. ___ ___
The reasoning in Ford embodies a sensible construction ____
of the regulation and one that comports with its wording and
purpose. The safety standard is implicated by the depth of a
particular trench, without regard to an individual worker's
19
precise position in it.9 The notion that having workers stand on
a laid pipe within a trench is a satisfactory method of
protecting them from the risk of cave-ins is nonsense. While the
regulations are performance-oriented, they only allow employers
to choose from a limited universe of acceptable procedures, not
to jury-rig convenient alternatives and impose them on an
imperilled work force. See Conie Constr., Inc. v. Reich, 73 F.3d ___ ___________________ _____
382, 384 (D.C. Cir. 1995).
We have said enough on this score. Because the
excavation regulation applies to the trench in question whereas
the depth exception does not, the Commission's resolution of
Violation C must stand.
D. Unpreventable Employee Misconduct. D. Unpreventable Employee Misconduct. _________________________________
The Commission rejected the petitioner's affirmative
defense of unpreventable employee misconduct (the UEM defense).
The petitioner challenges this determination as a matter of law
and as a matter of fact. We reject both challenges.
The OSH Act requires that an employer do everything
reasonably within its power to ensure that its personnel do not
violate safety standards. But if an employer lives up to that
billing and an employee nonetheless fails to use proper equipment
____________________
9The record in this case aptly illustrates the wisdom of
this conclusion. A compliance officer, Griffin, testified to the
close proximity of traffic on the adjacent roads and warned that
this could cause vibrations along the trench walls, thus
heightening the risk of a cave-in. If a cave-in occurred in a
trench of this depth, Griffin believed that workers within it
would "probably . . . be buried" regardless of where they were
standing.
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or otherwise ignores firmly established safety measures, it seems
unfair to hold the employer liable. To address this dilemma,
both OSHRC and the courts have recognized the availability of the
UEM defense.
The contours of the UEM defense are relatively well
defined. To reach safe harbor, an employer must demonstrate that
it (1) established a work rule to prevent the reckless behavior
and/or unsafe condition from occurring, (2) adequately
communicated the rule to its employees, (3) took steps to
discover incidents of noncompliance, and (4) effectively enforced
the rule whenever employees transgressed it. See New York State ___ ______________
Elec. & Gas Corp. v. Secretary of Labor, 88 F.3d 98, 105 (2d Cir. _________________ __________________
1996); General Dynamics, 599 F.2d at 458-59; Jensen Constr. Co., ________________ __________________
7 O.S.H. Cas. (BNA) 1477, 1479 (1979).
The employer must shoulder the burden of proving all
four elements of the UEM defense. See Brock v. L.E. Myers Co., ___ _____ ______________
818 F.2d 1270, 1276 (6th Cir. 1987); General Dynamics, 599 F.2d ________________
at 459. Sustaining this burden requires more than pious
platitudes: "an employer must do all it feasibly can to prevent
foreseeable hazards, including dangerous conduct by its
employees." General Dynamics, 599 F.2d at 458; accord H.B. _________________ ______ ____
Zachry Co. v. OSHRC, 638 F.2d 812, 818 (5th Cir. 1981). __________ _____
The mainstay of Gioioso's argument is that the ALJ
unnecessarily required repetitive documentary proof referable to
the UEM defense. But this is smoke and mirrors; the record
reveals quite clearly that the ALJ applied the appropriate legal
21
standard in a wholly unremarkable way and found that the employer
failed to carry the devoir of persuasion on both the
implementation and enforcement components of the defense. This
deficit is fatal. Even if an employer establishes work rules and
communicates them to its employees, the defense of unpreventable
employee misconduct cannot be sustained unless the employer also
proves that it insists upon compliance with the rules and
regularly enforces them. See Centex-Rooney Constr. Co., 16 ___ __________________________
O.S.H. CAS. (BNA) 2127, 2130 (1994).
Contrary to the petitioner's insinuations, the ALJ did
not presume to establish a per se rule requiring documentation.
Rather, he counted the absence of documentation against the
proponent of the defense in the circumstances of this case. We __________________________________
cannot fault this approach. Given the nature of the issue, there
is no reason why a factfinder must accept an employer's anecdotal
evidence uncritically. And in this instance, we agree with the
ALJ that the absence of any vestige of documentary proof was not
only a relevant datum but a telling one.
The petitioner also questions whether the Commission's
rejection of its UEM defense is supported by substantial evidence
in the record. After giving due deference to the ALJ's
credibility determinations, we conclude that the ruling passes
muster.
While the record reflects that Gioioso made a
meaningful effort to develop a satisfactory safety program, it is
much less conclusive on the issues of implementation and
22
enforcement. The petitioner's best case is that it distributes
safety manuals to all new employees; that these manuals contain
information regarding, inter alia, the lifting of loads, methods _____ ____
of trench protection, and the proper placement of ladders in
trenches; and that it supplements these materials in various
ways. The petitioner's safety chairman testified that the
company sponsors weekly "toolbox talks" at its work sites,10
monthly safety meetings for supervisory personnel, and biennial
safety seminars for all employees. But this evidence left some
fairly conspicuous gaps as to the content of the training
exercises, who conducted each session, and who attended them.
Documentation say, syllabi or attendance rosters would have
gone a long way toward filling these gaps, but the petitioner
proffered none. Absent such documentation, it cannot
persuasively argue that it effectively communicated the rules to
its employees.
The ALJ found most compelling the lack of any
substantial evidence in the record that the petitioner
effectively enforced its safety program. It provided no evidence
of unscheduled safety audits or mandatory safety checklists, and
no documentation that it ever executed its four-tiered
disciplinary policy. This lacuna in the proof undermines its
attempt to mount a viable UEM defense. See Hamilton Fixture, 16 ___ ________________
O.S.H. Cas. (BNA) 1073, 1090 (1993) (finding the evidence
____________________
10The safety chairman submitted a newsletter published by
the National Utility Contractors Association summarizing various
representative "toolbox talks."
23
insufficient where there was no proof to establish adequate
enforcement even though the written work rule was adequate),
aff'd, 28 F.3d 1213 (6th Cir. 1994). Even when a safety program _____
is thorough and properly conceived, lax administration renders it
ineffective (and, thus, vitiates reliance on the UEM defense).
See Brock, 818 F.2d at 1274, 1278 (in which the ALJ rejected a ___ _____
UEM defense when the employer could not produce records
evidencing employees' receipt of safety manuals, the occurrence
of safety meetings, and the like).
Brock also illustrates another point which has _____
pertinence here. The Brock court regarded the circumstances _____
surrounding the actions of the employer's foreman as further
evidence that the employer's program was lax. See id. at 1277. ___ ___
The case at hand is not dissimilar; Santone, the petitioner's
foreman, in effect acknowledged that his actions directly
contravened the company's safety policies. And while the
petitioner argues that a foreman should not be regarded as a
supervisor, the company's own safety manual identifies the
foreman as the "safety foreman for his crew," instructs employees
to "listen to your foreman" in respect to safety matters, and
directs foremen (along with other company safety officers) to
inspect work sites regularly and to enforce safety rules. Seen
in the context of these instructions, the foreman's breach of
safety rules supplies the basis for an inference that the
employer's implementation of safety procedures and/or its
enforcement policies left something to be desired. See id.; see ___ ___ ___
24
also H.B. Zachry, 638 F.2d at 819. The same circumstance also ____ ___________
buttresses the ALJ's finding that Gioioso's employees probably
were unaware that a threat of disciplinary action existed for
nonobservance of safety rules.
Finally, it bears mentioning that one of the violations
(Violation C) is a repeat violation. Recent violations provide
some evidence of ineffective safety enforcement. See Jensen ___ ______
Constr. Co., 7 O.S.H. Cas. (BNA) at 1479 & nn. 5-6. The ALJ was ___________
entitled to draw such an inference here.
We need go no further. Taking into account the
totality of the circumstances and the allocation of the burden of
proof, we find the petitioner's claim that the Commission
improperly rejected its UEM defense to be without merit.
The petition for review is denied and dismissed. The petition for review is denied and dismissed. _______________________________________________
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