[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 15, 2011
No. 11-10218
JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. OSHRC 10-1081
CROWTHER ROOFING & SHEET METAL OF FLORIDA,
Petitioner,
versus
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,
Respondent.
________________________
Petition for Review of a Decision of the
Occupational Safety and Health Review Commission
________________________
(December 15, 2011)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Crowther Roofing & Sheet Metal petitions this court to review the
Commission’s decision assessing a penalty against Crowther, in the sum of
$3,500, for allowing its employees to work on a steep roof without fall protection,
in violation of 29 C.F.R. § 1926.501(b)(11). In its brief,1 Crowther challenges
four of the Administrative Law Judge’s (“ALJ’s”)2 findings of fact: (1) that
Foreman Herrera had actual knowledge of Melendez’s and Valencia’s failure to
use fall protection, in violation of § 1926.501(b)(11); (2) that Crowther’s
supervisors had constructive knowledge of the violations; (3) that Crowther’s
training and enforcement program was insufficient; and (4) that Crowther’s
insufficient enforcement of its Tie-Off Rule evidenced its knowledge of
Melendez’s Valencia’s violation. We reject Crowther’s challenges to these
findings on the ground that they are supported by substantial record evidence.
In addition to these challenges, Crowther argues that the ALJ erred in
imputing Herrera’s knowledge of the § 1926.501.(b)(11) violations to Crowther.
The ALJ erred, according to Crowther, because “Herrera, who held the title of
foreman, was not on the roof at the time that [Melendez and Valencia] were
observed by OSHA to be violating fall protection rules and so he had no
1
We state the substance of the issues Crowther’s brief lays out. Four question the
sufficiency of the evidence to support the ALJ’s findings of fact; two raise legal errors.
2
The Commission elected not to review the ALJ’s decision. The ALJ’s decision
therefore became the Commission’s final order for review. The ultimate question we must
decide is whether the ALJ’s decision is supported by substantial evidence.
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knowledge of the violation which could be attributed to Crowther.” We find no
error. Among other things, Herrerra was responsible for directing the work of the
line workers, including ensuring that the workers complied with the company’s
Tie-Off Rule. Crowther also argues that the ALJ erred in rejecting its affirmative
unpreventable employee misconduct defense. Again, we find no error. To
establish its defense, Crowther had to prove that it had (1) established work rules
designed to prevent the violations; (2) adequately communicated those rules to its
employees; (3) taken steps to discover violations; and (4) where it had discovered
violations, had effectively enforced the rules. As the Commission properly
conceded, Crowther carried its burden with respect to the first two elements of the
defense. The record, however, fully supports the ALJ’s conclusion that Crowther
failed to prove the third and fourth elements. As for the third element, Crowther’s
own records indicated hundreds of OSHA violations over the preceding five years
and 100 violations in the first eight months of 2010, fifty five of which related to
fall protection.
We find no merit in any of Crowther’s challenges, and inasmuch as
substantial evidence supports the AlJ’s decision, the decision is
AFFIRMED.
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