P. Gioioso & Sons, Inc. v. Occupational Safety & Health Review Commission

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

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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

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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."

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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

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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. 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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