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AJP Construction, Inc. v. Secretary of Labor

February 13, 2004


Before: Edwards, Sentelle, and Tatel, Circuit Judges.

The opinion of the court was delivered by: Tatel, Circuit Judge

Argued December 4, 2003

On Petition for Review of an Order of the Occupational Safety and Health Review Commission

Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.

Petitioner, a construction company, challenges the Occupational Safety and Health Review Commission's affirmance of several citations for fall-protection violations issued after one of the company's employees fell to his death. Because the Commission's decision is well supported by substantial evidence and because the company had fair notice of the applicable regulations, we deny the petition.


Adopted ''to assure so far as possible TTT safe and healthful working conditions,'' 29 U.S.C. § 651(b) (2000), the Occupational Safety and Health Act requires employers to ''comply with occupational safety and health standards promulgated under [the] Act,'' id. § 654(a)(2) (2000). The Occupational Safety and Health Administration (OSHA) regularly inspects workplaces and issues citations for violations of its safety standards. OSHA classifies citations as not serious, serious, or willful; penalties increase with the severity of the violation. Id. § 666(a)-(c) (2000). Employers may challenge citations before the Occupational Safety and Health Review Commission. To establish a violation, the Secretary of Labor has the burden of proving: ''(a) the applicability of the cited standard, (b) the employer's noncompliance with the standard's terms, (c) employee access to the violative conditions, and (d) the employer's actual or constructive knowledge of the violation (i.e., the employer either knew, or with the exercise of reasonable diligence could have known, of the violative conditions).'' Sec'y of Labor v. AJP Constr. Inc., 19 O.S.H. Cas. (BNA) 2204 (2003), available at 2003 WL 145418, at *2; accord Am. Wrecking Corp. v. Sec'y of Labor, 351 F.3d 1254, 1261 (D.C. Cir. 2003).

Petitioner AJP Construction, Inc. (AJP) served as the concrete subcontractor for the construction of a high-rise residential building in Hoboken, New Jersey. Responding to a hot-line call reporting fall-related accidents and other safety hazards, OSHA began an inspection of the construction site in the fall of 2000. While OSHA's investigation was pending, AJP employee James Sherengo fell to his death while working at the site. At the time of the fatal accident, Sherengo and two other AJP employees were working on a seventhfloor ''outrigger scaffold.'' OSHA regulations define an outrigger scaffold as ''a supported scaffold consisting of a platform resting on outrigger beams (thrustouts) projecting beyond the wall or face of the building or structure, the inboard ends of which are secured inside the building or structure.'' 29 C.F.R. § 1926.450(b) (2003). The accident occurred when a crane hit construction materials hanging over the edge of the twelfth floor, toppling them onto the seventh-floor scaffold and causing Sherengo's deadly fall.

After the fatal accident, OSHA cited AJP for several violations relating to Sherengo's death. First, and central to this case, OSHA found that AJP knowingly failed to use personal fall-arrest or guardrail systems to protect the employees on the outrigger scaffold in willful violation of 29 C.F.R. § 1926.451(g)(1)(vii) (2003). Specifically, OSHA found that the outrigger scaffold had no guardrails and that Sherengo wore no fall-protection equipment. Although the other two employees working on the outrigger scaffold wore harnesses, the harnesses were entirely unsecured. OSHA also found that the large stack of construction material that fell from the twelfth floor was neither secured nor placed away from the edge of the building in violation of 29 C.F.R. § 1926.451(h)(1); that the scaffold was not ''erected TTT under the supervision and direction of a competent person qualified in scaffold erection'' in violation of 29 C.F.R. § 1926.451(f)(7); that the scaffold had not been constructed in accordance with a professional engineer's design in violation of 29 C.F.R. § 1926.452(i)(8) (2003); that the employees working on the scaffold had never been ''trained by a person qualified TTT to recognize the hazards associated with the type of scaffold being used and to understand the procedures to control or minimize those hazards'' in violation of 29 C.F.R. § 1926.454(a) (2003); and finally, that AJP had failed to protect employees exposed to the elevated unguarded edge of the building itself in violation of 29 C.F.R. § 1926.501(b)(1) (2003). In addition, OSHA cited the company for several fallprotection violations unrelated to the fatal accident.

AJP contested all of the citations before the Commission. Pursuant to 29 U.S.C. § 661(j) (2000), the Commission appointed an administrative law judge who held a five-day evidentiary hearing. With respect to the willful violation of 29 C.F.R. § 1926.451(g)(1)(vii), the company did not dispute that the outrigger scaffold lacked guardrails or that the three employees wore insufficient fall protection. Instead, AJP argued that it lacked the level of knowledge required for a violation. It also challenged the willful classification. Rejecting AJP's arguments, the ALJ affirmed the willful violation as well as a majority of the other citations. AJP filed a petition for review with the Commission. When the Commission declined to review the case, the ALJ's decision became the Commission's final order. See 29 U.S.C. § 661(j).

In its petition for review in this court, AJP challenges all of the Commission's adverse determinations, arguing that they are unsupported by substantial evidence. The company also argues that the scaffolding regulations fail to provide the fair notice required by the Fifth Amendment's Due Process Clause. See Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1328-29 (D.C. Cir. 1995) (recognizing that agency regulations must provide fair notice before penalties are imposed).


We will affirm the Commission's decision unless it is ''arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.'' 5 U.S.C. § 706(2)(A); see also Am. Wrecking, 351 F.3d at 1261. Commission findings of fact are conclusive ''if supported by substantial evidence on the record considered as a whole.'' 29 U.S.C. § 660(a) (2000). Under that standard, we uphold Commission findings so long as there is ''such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'' Whirlpool Corp. v. OSHRC, 645 F.2d 1096, 1101 (D.C. Cir. 1981) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)) (internal quotation marks omitted). Moreover, ''[t]he question we must answer TTT is not whether record evidence supports [petitioner's] version of events, but whether it supports [the agency's].'' Fla. Mun. Power Agency v. FERC, 315 F.3d 362, 368 (D.C. Cir.), cert. denied, 124 S. Ct. 386 (2003). We ''must accept the ALJ's credibility determinations TTT unless they are patently unsupportable.'' Tasty Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C. Cir. 2001).

We begin with AJP's primary challenge -- that the ALJ erred in finding that the company willfully violated 29 C.F.R. ยง 1926.451(g)(1)(vii)'s requirement that employers use guardrails or personal fall-protection equipment to protect employees on outrigger scaffolds. Repeating arguments soundly rejected by the ALJ and urging us to re-weigh evidence and to substitute our judgment for the ALJ's, AJP contends both that it lacked the level of knowledge required for the violation and that the ALJ had no basis for finding that the violation was willful. Applying our ...

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