Case: 22-60610 Document: 71-1 Page: 1 Date Filed: 04/15/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-60610
FILED
April 15, 2024
____________
Lyle W. Cayce
J.D. Abrams, L.P., Clerk
Petitioner,
versus
Occupational Safety and Health Review Commission;
Julie A. Su, Acting Secretary, U.S. Department of Labor,
Respondents.
______________________________
Petition from the Decision of the
Occupational Safety & Health Review Commission
OSHRC Docket No. 20-0452
______________________________
Before Jones, Barksdale, and Elrod, Circuit Judges.
Per Curiam: *
J.D. Abrams, L.P. (Abrams), contests an administrative law judge’s
(ALJ) affirming two citations by the Occupational Safety and Health
Administration (OSHA) for worksite violations involving excavation of a
trench: cave-in protection; and ladder-length standards. See 29 C.F.R.
§§ 1926.652(a)(1), 1926.1053(b)(1). In doing so, the ALJ concluded, inter
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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alia, that Abrams failed to establish its unpreventable-employee-misconduct
(UEM) affirmative defense. See J.D. Abrams, LP, 2022 WL 7517239, at *14–
16 (No. 20-0452, 2022) (ALJ). In response, Abrams petitioned the
Occupational Safety and Health Review Commission (Commission), which
declined to review the ALJ’s decision, resulting in its finality. The petition
for review is DENIED.
I.
Abrams, a construction company operating in Texas, has
approximately 500 employees. In November 2019, an Abrams trench-
excavation crew, led by Rivera (an installation supervisor), began
pipe/waterline installation near Austin. On 2 December 2019, a trench
box—metal reinforcement for a trench’s walls—crushed a water pipe in the
trench, causing it to explode. The next day, Rivera’s crew performed
excavation work for the trench at issue here. Because of the water-pipe
incident the day before, Rivera deliberately did not use a trench box required
for trenches deeper than five feet or when the excavation is not “made
entirely [of] stable rock”. 29 C.F.R. § 1926.652(a)(1).
Later that day, two OSHA Compliance Safety and Health Officers
(CSHOs) inspected the worksite. They measured the trench’s depth at three
points; each measurement was greater than the five-feet maximum:
respectively, five feet, eight inches; six feet; and six feet, seven inches.
Additionally, the ladder used in the trench extended two feet, eight inches
above the landing surface, shorter than the required three feet. See 29 C.F.R.
§ 1926.1053(b)(1) (requiring ladder to extend three feet above landing
surface). Abrams’ (Rivera’s) crew had worked in this trench from between
7:00 and 8:00 a.m. until the CSHOs arrived around 1:00 p.m.
OSHA issued Abrams two citations for serious violations: failing to
use cave-in protection, in violation of 29 C.F.R. § 1926.652(a)(1), meriting
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serious classification because a resulting accident could cause an employee’s
“being crushed from a cave-in”; and using a ladder not extending at least
three feet above the trench’s edge, in violation of 29 C.F.R.
§ 1926.1053(b)(1), meriting serious classification because employees were
exposed “to the hazard of falling from height”. J.D. Abrams, 2022 WL
7517239, at *6, *10; 29 U.S.C. § 666(k) (explaining serious violation).
Abrams contested the citations by asserting, inter alia, the above-
referenced UEM affirmative defense. Following a one-day hearing in
December 2021, at which three witnesses testified (one of the two above-
referenced CSHOs, Abrams’ vice president of operations, and Rivera) and
29 exhibits were introduced, the ALJ in August 2022 affirmed the citations
and assessed penalties of $7,711 for lack of cave-in protection and $5,783 for
inadequate ladder height. Abrams petitioned the Commission for
discretionary review, which declined to review the decision, resulting in its
finality. See 29 U.S.C. § 661(j) (“The report of the [ALJ] shall become the
final order of the Commission . . . , unless . . . any Commission member has
directed that such report shall be reviewed by the Commission.”); 29 C.F.R.
§ 2200.90(f) (“If no Commissioner directs review of a report . . . , the
decision of the Judge shall become a final order of the Commission.”).
II.
Regarding the below four elements of its UEM affirmative defense,
Abrams primarily challenges the ALJ’s finding that, although it satisfied the
first two, it failed to do so for the last two. As provided in Angel Bros.
Enterprises v. Walsh:
To establish [the UEM] affirmative defense, the employer has
the burden to prove that it: 1) has established work rules
designed to prevent the violation, 2) has adequately
communicated these rules to its employees, 3) has taken steps
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to discover violations, and 4) has effectively enforced the rules
when violations have been discovered.
18 F.4th 827, 832 (5th Cir. 2021) (citation omitted). Obviously, all four
elements must be satisfied.
Abrams also maintains the ALJ’s analysis: ignores Congress’ intent
for the Occupational Safety and Health (OSH) Act; destroys the UEM
defense; and violates the Administrative Procedure Act (APA). See 29
U.S.C. §§ 654 (explaining “Duties of employers and employees” under
OSH Act), 651(b) (outlining Congress’ “declaration of purpose and policy”
for OSH Act); 5 U.S.C. § 556(d) (“[Under the APA,] [a] sanction may not
be imposed . . . except on consideration of the whole record . . . and supported
by and in accordance with the reliable, probative, and substantial
evidence”.). Finally, Abrams contests the violations’ being classified as
serious and the imposed fines.
All of Abrams’ contentions, except regarding the fines, are reviewed
under the same standard. Because the Commission declined to review the
decision (resulting in its finality), the ALJ’s factual findings are accepted “if
they are supported by substantial evidence on the record considered as a
whole, and if a reasonable person could have found what the [ALJ] found,
even if the appellate court might have reached a different conclusion”. TNT
Crane & Rigging, Inc. v. OSHRC, 74 F.4th 347, 353 (5th Cir. 2023) (citation
omitted). In other words, if “the evidence does not compel a conclusion
contrary to the one the Commission [or ALJ if the Commission declined
review] reached, we must defer to its ruling that [Abrams] failed to establish
the affirmative defense”. Angel Bros., 18 F.4th at 833 (emphasis added).
Conclusions of law are upheld unless they are “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law”. TNT Crane &
Rigging, Inc., 74 F.4th at 353 (quoting 5 U.S.C. § 706(2)(A)).
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Our review is largely controlled by our court’s above-cited decision in
Angel Bros., which involved one of the same infractions: lack of cave-in
protection. 18 F.4th at 829. There, “[t]he central issue [was] whether a
supervisor’s involvement in a subordinate employee’s violation of workplace
safety rules renders the employer liable”. Id. Our court held: “imputing the
supervisor’s knowledge . . . to the employer [was] appropriate”. Id.
In Angel Bros., our court also addressed the fourth element of the
UEM defense (effective enforcement) and deferred to the Commission’s
rejecting that defense because “substantial evidence support[ed]” the
conclusion. Id. at 832–33. Our court stated: “Angel Brothers is a large
company that performs more than a thousand excavations annually” but had
only “two [documented] instances of disciplining employees” that both
“came after OSHA inspectors uncovered the violations”. Id. at 833. When
addressing the contention that the company had a nearly perfect safety
record, our court ruled: “the Commission did not have to accept the
statistically implausible claim that although OSHA found violations during
80% of its five inspections, the company committed no safety violations the
other 6,000 or so times it performed excavations”. Id.
As noted earlier, our court ultimately held: “Because the evidence
does not compel a conclusion contrary to the one the Commission reached,
we must defer to its ruling that Angel Brothers failed to establish the
affirmative defense”. Id. Likewise, and for the following reasons, as well as
essentially for the reasons provided in the ALJ’s extremely detailed decision,
we are not compelled to reach a conclusion contrary to the ALJ’s.
A.
At issue regarding the UEM defense are whether Abrams has: “taken
steps to discover violations, and . . . effectively enforced the rules when
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violations have been discovered”. Id. at 832. First addressed is element four:
effective enforcement.
1.
The ALJ concluded Abrams failed to show it did so for its safety rules
because Abrams “provided no evidence of any discipline or enforcement
action that had been implemented as a result of its discovery of violations at
a worksite”, and the two examples provided were post-inspection related
discipline. J.D. Abrams, 2022 WL 7517239, at *16; see also Angel Bros., 18
F.4th at 833.
In reaching that conclusion, the ALJ rejected Abrams’ attempt to
introduce, in a post-hearing brief, an exhibit outlining instances of pre-
inspection discipline:
This attempt to shoehorn information, outside the hearing,
into the record is improper. Because it was not presented
during the hearing, there was no opportunity for Secretary to
object or for either party to present witness testimony to
explain or support the documents. The documents attached as
Exhibit A to [Abrams’] post-hearing brief are not a part of the
record of this proceeding and accordingly, are not considered
here.
J.D. Abrams, 2022 WL 7517239, at *16 n.21.
In an attempt to circumvent this ruling, Abrams faults the Secretary
for introducing only Abrams’ written responses to discovery requests, and
not this requested exhibit. Abrams’ contention ignores that it was its burden,
not the Secretary’s, to establish the UEM affirmative defense. See Angel
Bros., 18 F.4th at 832.
In the alternative, Abrams asserts this exhibit was incorporated in its
above-referenced discovery responses that the Secretary did introduce. It,
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however, fails to cite any precedent supporting this incorporated-by-
reference contention. See also 29 C.F.R. §§ 2200.70(a) (“All exhibits offered
in evidence by a party shall be marked for identification before or during the
hearing.”), 2200.71 (applying Federal Rules of Evidence to OSHA hearings);
Fed. R. Evid. 901 (requiring authentication).
In short, Abrams fails to show that the ALJ abused its “wide discretion
to exclude irrelevant or otherwise inadmissible evidence”. UNF W., Inc. v.
NLRB, 844 F.3d 451, 463 (5th Cir. 2016); see also Turner Commc’ns Corp. v.
OSHRC, 612 F.2d 941, 945–46 (5th Cir. 1980) (rejecting petitioner’s
contention that ALJ improperly excluded irrelevant evidence). Accordingly,
Abrams fails to show evidence compelling “a conclusion contrary to the”
ALJ’s. Angel Bros., 18 F.4th at 833.
2.
Because Abrams fails to succeed on the fourth element of the UEM
defense, we need not reach the third: steps to discover violations.
Nevertheless, in the alternative and regarding that third element, Abrams
contests the ALJ’s finding it “failed to prove that it effectively took steps to
detect violations of safety rules at its worksites”. J.D. Abrams, 2022 WL
7517239, at *14. Substantial evidence, however, supports the ALJ’s finding
that Abrams did not have “a meaningful program to detect and to discourage
safety violations”. Id. at *15; see also TNT Crane & Rigging, Inc., 74 F.4th at
360.
First, although Abrams’ vice president testified that worksite-safety
audits were “documented, compiled, and presented monthly”, “no
documentation of any audit was provided”. J.D. Abrams, 2022 WL 7517239,
at *15. Second, the lack of response to the 2 December water-pipe incident
(the day before the events for which the two challenged citations were issued)
supported the inference that “safety coordinators did not consistently
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respond to near misses”. Id. Third, Abrams failed to proffer evidence from
a safety coordinator to “describe the frequency of site visits, the process for
discovering violations at a worksite, how information was communicated to
the employees during a safety audit, or the steps to remedy any compliance
issues at a worksite”. Id.
Abrams asserts certain documents (employee-safety manual, new-
hire video, trench plan, and training records) and its vice-president’s
testimony (that unannounced audits occurred and at what frequency) were
sufficient, but there is no corroborating evidence these worksite audits
occurred. See P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d 100, 109–10 (1st
Cir. 1997) (rejecting employer’s contention the ALJ “unnecessarily required
repetitive documentary proof referable to the UEM defense” because “there
is no reason why a factfinder must accept an employer’s anecdotal evidence
uncritically” and “the absence of any vestige of documentary proof was not
only a relevant datum but a telling one”); see also TNT Crane & Rigging, Inc.,
74 F.4th at 360 n.7 (“The Commission has previously found monitoring
insufficient where no evidence showed that the employer monitored
employee compliance with the rules pertaining to the specific conduct at
issue in the citation during site visits.”).
3.
Taking a different tack, Abrams asserts the ALJ’s decision:
eviscerates the purpose of the OSH Act (29 U.S.C. §§ 654, 651(b)); and
destroys the UEM defense. Regarding the Act’s purpose, Abrams’ assertion
ignores § 654(a)’s requiring employers to: “furnish . . . a place of
employment . . . free from recognized hazards”; and “comply with
occupational safety and health standards”. Additionally, to the extent
Abrams is challenging employer knowledge by citing W.G. Yates & Sons
Construction Co. v. OSHRC, 459 F.3d 604 (5th Cir. 2006), it is unavailing.
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See Angel Bros., 18 F.4th at 830–32 (rejecting contention “that a supervisor’s
knowledge cannot be imputed to the employer when the supervisor
authorizes, or takes some other active role in, a subordinate’s safety
violation”). Finally, regarding the UEM defense, Abrams essentially
contends: if it is not deserving of the protections provided by that defense,
no company is. But, as discussed supra, the ALJ’s findings regarding lack of
monitoring and enforcement are supported by substantial evidence.
4.
Abrams also asserts the ALJ’s decision violated § 556(d) of the APA.
See 5 U.S.C. § 556(d) (requiring agency decisions be made “on consideration
of the whole record . . . and supported by . . . substantial evidence”). This
contention was not presented in Abrams’ petition for discretionary review by
the Commission. See 29 U.S.C. § 660(a) (“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.”). This is not the requisite extraordinary
circumstance. In addition, this belated contention is inadequately briefed;
therefore, it is forfeited. See Fed. R. App. P. 28(8)(A) (“[T]he argument
. . . must contain: (A) [petitioner]’s contentions and the reasons for them,
with citations to the authorities and parts of the record on which [petitioner]
relies”.).
B.
Substantial evidence also supports the ALJ’s classifying the two
violations as serious. “Under the [OSH] Act, violations of a safety regulation
are considered ‘serious’ if ‘there is a substantial probability that death or
serious physical harm could result.’” Excel Modular Scaffold & Leasing Co. v.
OSHRC, 943 F.3d 748, 757 (5th Cir. 2019) (quoting 29 U.S.C. § 666(k)). “A
violation may be determined to be serious where, although the accident itself
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is merely possible . . . there is a substantial probability of serious injury if it
does occur.” Id. (alteration in original) (citation omitted).
The ALJ’s finding “a trench cave-in and a fall from a ladder can each
result in serious injury”, J.D. Abrams, 2022 WL 7517239, at *17, is “amply
supported by the record”, Excel Modular Scaffold & Leasing Co., 943 F.3d at
757. The ALJ classified the trench-wall violation as serious because a cave-
in could cause “serious injuries, such as contusions, fractures, suffocation,
and death”. J.D. Abrams, 2022 WL 7517239, at *17. Abrams points to the
CSHO’s admitting error in including death as a justification; Rivera agreed,
however, that an employee in the trench could get crushed and die. See, e.g.,
DiGioia Bros. Excavating, Inc., 17 BNA OSHC 1181, 1184 (No. 92-3024, 1995)
(“If a cave-in occurred in an 8-foot deep trench, it is clear that there is a
substantial probability that the likely result would be death or serious physical
harm.”).
The ALJ’s finding the ladder violation was a fall hazard that could
result in “contusions, fractures, and concussions” is also supported by
substantial evidence. J.D. Abrams, 2022 WL 7517239, at *17; see, e.g., Sw.
Bell Tel. Co. v. Chao, No. 00-60814, 2001 WL 1485847, at *8 (5th Cir. 15 Nov.
2001) (refusing to disturb “[t]he Commission’s determination that a serious
broken bone could result” from ladder violation because determination “was
based on substantial evidence in the record as a whole”).
C.
The two challenged fines are reviewed for abuse-of-discretion. See
Dan J. Sheehan Co. v. OSHRC, 520 F.2d 1036, 1041 (5th Cir. 1975) (“The
court is empowered to review the appropriateness of the penalty using an
‘abuse of discretion’ standard.”); Sw. Bell Tel. Co., 2001 WL 1485847, at *8
(“This and other courts of appeals have a long history of according great
deference to the Commission’s judgment as to the appropriate penalty when
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. . . the Commission gives consideration to the statutory factors, and when
the penalty amounts fall within the statutory mandate.”).
When assessing violations, the ALJ is to give “due consideration to
the appropriateness of the penalty with respect to the size of the business of
the employer being charged, the gravity of the violation, the good faith of the
employer, and the history of previous violations”. 29 U.S.C. § 666(j).
The statutory maximum for each serious violation was $13,494. 29
C.F.R. § 1903.15(d)(3) (2020). As stated, the two penalties are below that
amount: $7,711 and $5,783.
Abrams contends the ALJ erred by: omitting any analysis of the
CSHO’s testimony; failing to appreciate the absence of any prior citation on
its record; failing to consider the low possibility of serious injury; and not
affording it an adjustment based on good faith because Abrams
communicated its rules to its employees.
Regarding the lack of analysis of the CSHO’s testimony, Abrams’ bare
assertion that the ALJ erred by omitting the analysis does not show abuse of
discretion. For the absence of prior citations, the ALJ noted: “[t]he lack of
penalty adjustment reflects this lack of inspection history”. J.D. Abrams,
2022 WL 7517239, at *17 n.24. As discussed supra, the ALJ’s concluding
Abrams did not adequately monitor its worksites is supported by substantial
evidence. Likewise, Abrams fails to show abuse of discretion by the ALJ’s
rejecting a penalty adjustment based on Abrams’ perfect-record contention.
Abrams’ likelihood-of-serious-injury contention is also discussed supra.
Finally, regarding good faith, the ALJ rejected Abrams’ contention for
a reduction because the “safety policy was incomplete”. Id. at *18 (citing
Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001)). Abrams
again fails to show abuse of discretion. See, e.g., Gen. Motor Corp., 22 BNA
OSHC 1019, 2007 WL 4350896, at *38 (Nos. 91-2834E & 91-2950, 2007)
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(rejecting good-faith reduction when “managerial personnel knew of
widespread noncompliance . . . and tolerated as well as encouraged such
hazardous work practices”).
III.
For the foregoing reasons, the petition for review is DENIED.
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