On Petition for Review of an Order of the Occupational Safety and Health Review Commission
Before: Edwards and Henderson, Circuit Judges, and Williams, Senior
The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge
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.
The Secretary of Labor (Secretary), through the Occupational Safety and Health Administration (OSHA), cited Fabi Construction Co. (Fabi) for eight violations of OSHA safety regulations after one of Fabi's employees suffered a fatal fall while demolishing a "knock-out" panel on the roof of a 10-story garage. Fabi challenges each of the eight findings of violation. For the reasons set out below, we reject each of Fabi's challenges and uphold the citations affirmed by the Occupational Safety and Health Review Commission (Commission or OSHRC), 20 O.S.H. Cas. (BNA) 1535 (2003). That said, with regard to the citations relating to the demolition itself (Citation 1, items 1a, 2, 3a; Citation 2, item 1), we find it troubling that the Secretary cited Fabi only for failure to instruct and train demolition workers and to ensure the panel integrity rather than for using improper techniques to carry out the demolition.*fn1 The Secretary's decision in this respect is particularly problematic because as a consequence the Commission was not called upon to consider and failed to identify what specific safety measures Fabi should have employed -- but did not --during the actual demolition. Nonetheless, we agree with the Commission that the danger in the demolition method used -- drilling holes in concrete slabs while standing atop them -- was plain enough to put Fabi on notice of the need to adequately implement demolition safety measures and that the evidence supports the findings that Fabi did not do so. Accordingly, we cannot say that it was error for the Commission to uphold the Secretary's citation of Fabi for failure to warn and instruct in advance only and not for improperly implementing the demolition itself. Cf. W.G. Fairfield Co. v. OSHRC, 285 F.3d 499 (6th Cir. 2002) (employer with actual knowledge that trench-digging employees crossed busy inter-state in course of work and took no steps to prevent it violated 29 C.F.R. § 1926.20(b)(1)).*fn2
Fabi was a subcontractor performing concrete installation and demolition work for the construction of a 21-story Trop-World Hotel addition atop an existing 10-story parking garage in Atlantic City, NJ. Among Fabi's assignments was demolition of a number of concrete "knock-out" panels (or slabs) that had been installed when the garage was built to accommodate future expansion. On February 5, 1995 Fabi demolished three knock-out panels covering elevator pits on the ground floor of the garage. Four days later, on February 9, 1995, Fabi demolished two knock-out panels covering elevator shafts on the second floor. In each instance, before actual demolition of the panel, workers stood on top of the panel and drilled a pilot hole with a jackhammer to find out the type and position of the steel bars, or "rebar," used to reinforce the panels. With this knowledge, workers hammered away concrete at locations along the slab's perimeter where the rebar should be and then sawed through the rebar. Each of the 5 panels was demolished without incident.
Three panels remained to be demolished on the garage roof: one over a stairway and two over elevator shafts. The rooftop stairway panel was, like the previous five panels, demolished without incident. The first rooftop elevator panel was scheduled for demolition on Saturday, June 10, 1995, by employees Thomas Kane and Frank Caucci, under the supervision of foreman Charles Cincotti. Kane had been hired by Fabi the previous month and Caucci the previous week. This was the first knock-out panel demolition project at TropWorld for both. Before they began the demolition work, Cincotti gave them the following instruction:
We'll shoot our pilot hole, we'll look for our rebar, if anything doesn't look, you know, where it should be, you stop the job. And we would call it a day. Until we could discuss it.
Hearing Tr. (Tr.) 281-82. When they began the task, Kane stood on top of the panel with a jackhammer and drilled a pilot hole in the southeast corner of the panel to check the rebar. While he was jackhammering, Kane noticed two or three stress cracks emanating from the pilot hole. At Kane's direction, Caucci periodically stepped onto the panel to strike the pilot hole area with a sledgehammer. The final time he did so, the northwest corner of the slab tilted up and the slab fell into the shaft, carrying Kane and Caucci with it. Kane managed to grab onto the floor below but Caucci fell down the shaft to his death.
On June 10, 1995 OSHA began an investigation of Caucci's death. On December 8, 1995 OSHA issued Fabi three citations specifying thirteen safety violations. After a five-day evidentiary hearing, the administrative law judge (ALJ) affirmed eight of the cited violations and assessed fines totaling $31,500. Sec'y v. Fabi Constr. Co., No. 96-0097 (filed April 8, 1998), (ALJ Dec.). The Commission upheld the eight violations and the penalties as assessed by the ALJ, concluding, without elaboration, that her "decision finding that Fabi violated the Act with respect to the citations at issue on review is supported by the evidence and applicable legal precedent." Sec'y v. Fabi Constr. Co., No. 96-0097, slip op. at 2 (May 30, 2003) (Comm'n Dec). Fabi filed a timely petition for review of the Commission's decision.
Fabi challenges each of the violations affirmed by the Commission. Our review of the Commission's decision is deferential. We must treat as "conclusive" the Commission's findings of fact so long as they are "supported by substantial evidence on the record considered as a whole," 29 U.S.C. § 660(a); and we may "set aside the Commission's application of legal standards to facts only if it is arbitrary, capricious, an abuse of discretion, or contrary to law." American Bridge/Lashcon v. Reich, 70 F.3d 131, 133 (D.C. Cir. 1995) (citing 5 U.S.C. § 706(2)(A); Century Steel Erectors, Inc. v. Dole, 888 F.2d 1399, 1403 (D.C. Cir. 1989)). Applying these standards, we reject each of Fabi's challenges in turn.
First, the Commission found a serious*fn3 violation of 29 C.F.R. § 1926.20(b)(1) and assessed a penalty of $5,000. Section 1926.20(b)(1) provides: "It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with [Part 1926 of title 29]."*fn4 The ALJ found Fabi violated this provision because, although Fabi maintained a written safety program and conducted weekly on-site "toolbox talks" on various safety issues, "Fabi failed to fully implement and maintain a safety program with specific instructions about what precautions to take when performing demolition." ALJ Dec. at 7. Fabi challenges this finding on both legal and factual grounds.
First, Fabi contends the Commission has not previously interpreted section 1926.20(b)(1) to require "task specific training and instructions on demolition." Pet'r Br. 1. Fabi is incorrect. In Sec'y v. Northwood Stone & Asphalt, 16 O.S.H. Cas. (BNA) 2097 (1994), the Commission interpreted section 1926.20(b)(1) to mean that "an employer may reasonably be expected to conform its safety program to any known duties and ... a safety program must include those measures for detecting and correcting hazards which a reasonably prudent employer similarly situated would adopt" and held that "a reasonably prudent employer in [the employer's] position, having experienced numerous prior instances of a truck's becoming entangled in overhead power lines, would have understood that an adequate safety program under section 1926.20(b)(1) would include specific measures to be taken when a dump truck became entangled in overhead electrical lines." Northwood Stone & Asphalt, 16 O.S.H. Cas. (BNA) at 2099 (1994).*fn5 Consistent with precedent, the Commission here applied section 1926.20(b)(1) to conclude that a reasonably prudent employer should be aware of the dangers inherent in demolition -- and that Fabi was in fact aware of them as demonstrated by its use of a demolition safety video which it showed to some, but not all, of its demolition workers -- yet failed to adequately implement a safety program addressing the hazards.
Fabi next challenges the evidentiary sufficiency for the citation, contending that in fact "numerous Fabi employees" testified they had "received specific instructions on topics integral to demolition safety." Pet'r Br. 4. The ALJ adequately responded to this argument in finding the following facts, supported by the record: Fabi's written program did not specifically address "demolition," Fabi's Weekly Jobsite Safety Meeting Reports did not disclose any toolbox meeting addressing demolition hazards in particular, there was no evidence Caucci or Kane attended any tool box meeting addressing any but the most basic demolition safety measures,*fn6 Fabi's demolition video was not shown to all demolition employees -- in fact it was not shown to anyone hired after early spring, including both Kane and Caucci -- and new hires were simply given only "brief guidelines" of the written program and told the full program was available for their review.*fn7
Second, Fabi challenges the citation for serious violation of 29 C.F.R. § 1926.21(b)(2), for which it was assessed a $7,000 penalty. Section 1926.21(b)(2) provides: "The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to ...