Thomas G. Gallagher, Inc. v. Occupational Safety & Health Review Commission , 877 F.3d 1 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-2268
THOMAS G. GALLAGHER, INC.,
Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; R. ALEXANDER
ACOSTA, Secretary of Labor, U.S. Department of Labor,*
Respondents.
PETITION FOR REVIEW OF A FINAL ORDER OF
THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
James F. Laboe, with whom Orr & Reno, P.A. was on brief, for
petitioner.
Scott Glabman, Senior Appellate Attorney, U.S. Department of
Labor, with whom Nick Geale, Acting Solicitor, Ann Rosenthal,
Associate Solicitor for Occupational Safety and Health, and
Heather R. Phillips, Counsel for Appellate Litigation, were on
brief, for respondents.
* Pursuant to Fed. R. App. P. 43(c)(2), former Secretary of
Labor Thomas E. Perez was substituted for Acting Secretary of Labor
Edward Hugler, who has been substituted for Secretary of Labor
R. Alexander Acosta.
December 4, 2017
BARRON, Circuit Judge. This petition for review
challenges a final order of the Occupational Safety and Health
Review Commission ("Commission") that affirmed a fine levied
against a Massachusetts-based employer -- Thomas G. Gallagher,
Inc. ("Gallagher") -- that had been imposed by the Occupational
Safety and Health Administration ("OSHA"), for two violations of
OSHA workplace health and safety standards. Gallagher contends
that the Commission's order cannot be sustained. We disagree and
deny the petition for review.
I.
We begin by reviewing the relevant statutory and
regulatory landscape. We then lay out the undisputed facts that
are relevant to the petition for review.
A.
Congress enacted the Occupational Safety and Health Act
("OSH Act") to reduce employment-related injury and illness. See
29 U.S.C. § 651; Modern Cont'l Constr. Co. v. Occupational Safety
& Health Review Comm'n, 305 F.3d 43, 49 (1st Cir. 2002). To
accomplish that end, the OSH Act authorizes the Secretary of Labor
("Secretary") to promulgate rules setting forth workplace health
and safety standards. See 29 U.S.C. §§ 651(b)(3), 661, 665; Martin
v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 147
(1991) (citing Cuyahoga Valley Ry. Co. v. United Transp. Union,
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474 U.S. 3, 6–7 (1985) (per curiam)). The Secretary has in turn
delegated the exercise of that rulemaking authority to OSHA.1
OSHA promulgates rules setting forth health and safety
standards pursuant to 29 U.S.C. § 654(a)(2). Some standards, like
those at issue here, are known as "general standards" or "general
industry standards," because they apply to a variety of different
types of industries. Others standards are known as "industry-
specific standards" because they apply only to specific
industries, such as, for example, the maritime or construction
industry. See Modern Cont'l Constr. Co., 305 F.3d at 49; Reich v.
Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 4 (1st Cir. 1993).
OSHA health and safety standards, "require[] conditions,
or the adoption or use of one or more practices, means, methods,
operations, or processes, reasonably necessary or appropriate to
provide safe or healthful employment and places of employment."
29 U.S.C. § 652(8). In the event that "[OSHA] determines upon
investigation that an employer is failing to comply with . . . a
[promulgated] standard, [OSHA] is authorized to issue a citation
1 OSHA is an agency within the Department of Labor. Day v.
Staples, Inc., 555 F.3d 42, 52 n.4 (1st Cir. 2009). The Secretary
has delegated authority under the OSH Act to the Assistant
Secretary for Occupational Safety and Health, who heads OSHA.
Delegation of Authority and Assignment of Responsibility to the
Assistant Secretary for Occupational Safety and Health, 77 Fed.
Reg. 3912, 3912-13 (Jan. 25, 2012); see Martin, 499 U.S. at 147
n.1.
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[pursuant to an OSHA general or industry-specific standard] and to
assess the employer a monetary penalty." Martin, 499 U.S. at 147
(citing 29 U.S.C. §§ 658–659, 666).
Employers may be cited for violations -- in consequence
of the existence of a dangerous condition prohibited by a general
workplace safety standard -- that range from ones that are
"serious," 29 U.S.C. § 666(k), to ones that are "not serious," id.at § 666(c), to ones that are merely "de minimus," 29 C.F.R.
§ 1903.14. A "serious" violation, which is the type of violation
for which Gallagher was cited, is:
[D]eemed to exist in a place of employment 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, in such place of employment 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) (emphasis added); see Brock v. Morello Bros.
Constr., 809 F.2d 161, 164 (1st Cir. 1987).
A "serious" violation, therefore, only arises if an
employer has knowledge of the presence of the condition prohibited
by the workplace safety standard, though, as 29 U.S.C. § 666(k)
makes clear, an employer need not have actual knowledge of that
condition's presence in order for the employer to be liable for a
serious violation. See W.G. Yates & Sons Constr. Co. v.
Occupational Safety & Health Review Comm'n, 459 F.3d 604, 607 (5th
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Cir. 2006). The employer may, instead, be found liable for having
only constructive knowledge of that condition's existence in the
workplace, in the sense that the employer may be deemed to know of
that condition if "with the exercise of reasonable diligence, [the
employer] could have known of the presence of the violative
condition." Pride Oil Well Serv., 1991-93 CCH OSHD ¶ 29,807,
p. 40,583 (No. 87-692, 1992). And, we have held that, with respect
to violations of health and safety standards under the OSH Act,
the knowledge of a supervisor may be imputed to an employer such
that "an employer can be charged with constructive knowledge of a
safety violation that supervisory employees know or should
reasonably know about." P. Gioioso & Sons, Inc. v. Occupational
Safety & Health Review Comm'n, 675 F.3d 66, 73 (1st Cir. 2012).
The OSH Act also establishes the Commission, which
consists of three members, each of whom is appointed by the
President with the advice and consent of the Senate. Martin, 499
U.S. at 147. The Commission is charged under the OSH Act with
acting "as a neutral arbiter," In re Perry, 882 F.2d 534, 537 (1st
Cir. 1989) (quoting Cuyahoga Valley Ry. Co., 474 U.S. at 7), in
carrying out adjudicative functions under that statute.2 Martin,
499 U.S. at 147-48 (citing 29 U.S.C. § 651(b)(3)).
2 The Commission is an independent federal agency that is
separate and distinct from both OSHA and the Department of Labor.
See In re Perry, 859 F.2d 1043, 1045 n.2 (1st Cir. 1988).
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The Act provides that, "[i]f an employer wishes to
contest a [violation] citation, the Commission must afford the
employer an evidentiary hearing and 'thereafter issue an order,
based on findings of fact, affirming, modifying, or vacating
[OSHA's] citation or proposed penalty.'" Id. (quoting 29 U.S.C.
§ 659(c)). The initial decision regarding a challenge to a
citation issued by OSHA is made by an administrative law judge
("ALJ"). 29 U.S.C. § 661(j); Martin, 499 U.S. at 147-48. The
initial decision rendered by the ALJ "become[s] the final order of
the Commission . . . unless . . . any Commission member has
directed that such report shall be reviewed by the Commission."
29 U.S.C. § 661(j). Thereafter, "[b]oth the employer and the
Secretary have the right to seek review of an adverse Commission
order in the court of appeals." Martin, 499 U.S. at 148.
B.
In the case at hand, Jason Thibault ("Thibault"), a
member of Pipefitters Local 537 labor union in Massachusetts for
twelve years,3 was working on August 1, 2014 as a pipefitter for
Gallagher, which operates a business in Massachusetts that makes
prefabricated piping systems for installation in major
construction projects. The accident that resulted in OSHA issuing
3Upon completing five years of formal training from the union
as an apprentice, Thibault achieved "journeyman" status.
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the citation to Gallagher for the two workplace safety violations
at issue here occurred in Gallagher's fabrication shop after
Thibault, using two web slings,4 rigged a pipe assembly that
weighed roughly 5,000 pounds to an overhead bridge crane and then
used the crane to hoist the assembly.
During the hoist, Thibault placed his right hand on the
pipe assembly, which was teetering, to steady it. Thereafter, a
weld suddenly broke and part of the pipe assembly then smashed
Thibault's hand, resulting in serious injuries, including the loss
of his index and middle fingers above the knuckles.
The pipe assembly, it turns out, had been rigged
improperly in two respects. First, the pipe assembly was rigged
with the slings near the midpoint of the assembly rather than on
the assembly's two ends. Second, one of the slings was rigged
around multiple pipes. This improper sling configuration resulted
in the load teetering when hoisted and caused lateral force to be
exerted on the outermost pipes of the assembly. Consequently, due
to the resulting pressure, a weld broke during the lift.
The only person other than Thibault who witnessed the
accident was another Gallagher employee -- Joseph Myles ("Myles").
Myles was present at the scene of the accident because he was
4 A "sling" is "an assembly which connects the load to the
material handling equipment." 29 C.F.R. § 1910.184(b). The slings
at issue were made from synthetic web -- i.e., nylon, polyester or
polypropylene. See id. at § 1901.184(a).
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assisting Thibault with the pipe assembly lift, including by
operating the hoist. The fabrication shop pipefitter foreman --
Mark DiCristoforo ("DiCristoforo") -- was Thibault's immediate
supervisor. But, DiCristoforo was in his office at the time of
the accident and did not see the accident occur.
In consequence of the accident and on the same day that
the accident occurred, an OSHA compliance officer arrived at the
fabrication shop to conduct an onsite inspection and to investigate
the circumstances of the accident. During the inspection,
DiCristoforo attempted to weigh the pipe assembly for the OSHA
officer. In doing so, DiCristoforo rigged the pipe assembly to a
scale in a manner that was substantially similar to the improper
rigging used by Thibault.
As a result of his inspection, the OSHA officer found
"serious" violations of several OSHA workplace safety standards.
The OSHA officer then issued Gallagher a two-item citation, which
described Gallagher's violation of two OSHA general industry
standards.
Gallagher was first cited for a serious violation of
29 C.F.R. § 1910.179(n)(3)(i), which requires a "load shall be
well secured and properly balanced in the sling or lifting device
before it is lifted more than a few inches." As a basis for this
violation, the citation stated that the "pipe assembly hoisted [by
Thibault and Myles] . . . was not well secured, nor properly
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balanced while [employees] attempt[ed] to place it onto support
stands greater than a few inches high."5
Gallagher was also cited for a serious violation of
29 C.F.R. § 1910.184(c)(9), which requires that "[w]henever any
sling is used, the following practices shall be observed: . . . .
All employees shall be kept clear of loads about to be lifted and
of suspended loads." The reason given in the citation for this
second violation was that Gallagher "[e]mployee(s) were on the
load or hook while hoisting, lowering or traveling [of the load]
was preformed," as evidenced by the fact that the "assembly of
pipes was hoisted . . . with employees' hands on it."6
Based on these two serious violations, OSHA fined
Gallagher a total of $11,250 -- $7,000 for the first violation and
$4,250 for the second. Gallagher timely contested the citation
and proposed penalty. The Commission subsequently docketed the
matter and assigned it to an ALJ for a hearing and decision.
5 OSHA did not cite Gallagher for any alleged violations as a
consequence of DiCristoforo's improper rigging of the pipe
assembly when trying to weigh it for the OSHA officer.
6 The second citation was originally issued for a "serious"
violation of 29 C.F.R. § 1910.179(n)(3)(v), which requires that
"[w]hile any employee is on the load or hook, there shall be no
hoisting, lowering, or traveling [of the load or hook]," but was
later amended by OSHA to a "serious" violation of 29 C.F.R.
§ 1910.184(c)(9), as "§ 1910.184(c)(9) more accurately reflect[ed]
the standard violated than [29 C.F.R. § 1910.179(n)(3)(v)]."
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An evidentiary hearing before an ALJ was held, where, by
a preponderance of the evidence, it was the Secretary's burden to
establish the following for each of the two workplace safety
standard violations: (1) that the cited standard applies; (2) that
there was a failure to comply with the standard by virtue of the
existence of a workplace condition prohibited by the standard;
(3) that employees had access to the prohibited condition; and
(4) that the employer had actual or constructive knowledge of the
violation of the safety standard. See P. Gioioso & Sons, Inc.,
675 F.3d at 72; see also Pride Oil Well Serv., 1991-93 CCH OSHD at
p. 40,583 (describing the fourth prong as whether the "employer
knew, or with reasonable diligence, could have known of the
presence of the violative condition"). For each of the serious
violations, the parties stipulated to the ALJ that the cited OSHA
general industry standards applied and Gallagher, in its post-
hearing briefing, contested only whether Gallagher had knowledge
of each of the two violations. Gallagher did also assert, however,
the affirmative defense of unpreventable employee misconduct
("UEM").7
7To prove a UEM defense, by a preponderance of the evidence
Gallagher had to show 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 P. Gioioso & Sons, Inc., 675 F.3d at 71.
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The ALJ found with respect to each serious violation
that Gallagher had the requisite knowledge of the existence of a
condition prohibited by the applicable workplace safety standard,
because, although Gallagher lacked actual knowledge of the
condition's presence in the workplace at the time of the accident,
Gallagher had constructive knowledge. The ALJ also found that
Gallagher had not proved its UEM affirmative defense with respect
to either violation. Therefore, the ALJ affirmed the citation
with respect to both serious violations.
The ALJ did, however, reduce the penalties proposed by
the OSHA officer in the citation. Specifically, the ALJ imposed
a reduced penalty of $1,050 for the first serious violation and of
$2,450 for the second serious violation.
Gallagher then filed a petition for discretionary review
("PDR") with the Commission. The Commission, however, declined to
direct that petition for review. The ALJ's decision thus became
the final order of the Commission.
Gallagher now petitions for review of the Commission's
final order. In doing so, Gallagher challenges only the ALJ's
determination that Gallagher had constructive knowledge with
respect to each of the serious violations for which OSHA cited
Gallagher.
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II.
Because the Commission adopted the ALJ's decision as its
final order, we focus on the ALJ's opinion. See, e.g., P. Gioioso
& Sons, Inc. v. Occupational Safety & Health Review Comm'n, 115
F.3d 100, 108 (1st Cir. 1997) (reviewing the ALJ's findings of
fact and conclusions where the Commission adopts the ALJ's findings
of fact and conclusions as its final order). In undertaking that
review, we are mindful that we "will uphold agency determinations
unless they are 'arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.'" P. Gioioso & Sons, Inc.,
675 F.3d at 72 (quoting 5 U.S.C. § 706(2)(A)). In that regard, we
must "defer to the agency's reasonable interpretation of the [OSH]
Act and its governing regulations." Id.; Modern Cont'l Constr.
Co., 305 F.3d at 48.
In addition, the OSH Act directs that "[t]he findings of
the Commission with respect to questions of fact, if supported by
substantial evidence on the record considered as a whole, shall be
conclusive." 29 U.S.C. § 660(a); see also Martin, 499 U.S. at
147-48 ("[T]he court of appeals[] . . . must treat as 'conclusive'
Commission findings of fact that are 'supported by substantial
evidence.'"); Harry C. Crooker & Sons, Inc. v. Occupational Safety
& Health Review Comm'n, 537 F.3d 79, 82 (1st Cir. 2008) (similar).
As a result, "[u]nder this deferential standard, we must 'accept
reasonable factual inferences drawn by the Commission[,]'" P.
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Gioioso & Sons, Inc, 675 F.3d at 72 (quoting Donovan v. Daniel
Constr. Co., 692 F.2d 818, 820 (1st Cir. 1982)), and "give great
deference to credibility determinations by the ALJ," id. Moreover,
"[t]his deferential standard governs even where, as here, the
Commission does not hear the case itself but instead adopts an
ALJ's findings." Id. (citing Modern Cont'l/Obayashi v.
Occupational Safety & Health Review Comm'n, 196 F.3d 274, 280 (1st
Cir. 1999)); see also Modern Cont'l Constr. Co., 305 F.3d at 48-
49.
A.
We turn first to Gallagher's challenge to the portion of
the ALJ's decision that affirms the serious violation imposed under
29 C.F.R. § 1910.179(n)(3)(i), which is a general industry
standard that establishes what constitutes a safe condition for
the handling of the pipe assembly at issue. That standard provides
that: "The load shall be well secured and properly balanced in
the sling or lifting device before it is lifted more than a few
inches." Id.Gallagher does not dispute that Thibault and Myles
rigged and hoisted the pipe assembly at issue in violation of this
safety standard. Gallagher merely contests its knowledge of that
violation. So the key issue is whether Gallagher provides a
persuasive basis for challenging the ALJ's finding that Gallagher
had constructive knowledge -- namely, that Gallagher could have
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known through the exercise of reasonable diligence, see Pride Oil
Well Serv., 1991-93 CCH OSHD at p. 40,584 -- that employees would
rig and hoist the pipe assembly more than a few inches, while the
pipe assembly was neither well secured, nor properly balanced.
The ALJ based the conclusion that Gallagher did have
constructive knowledge of this occurrence on a theory of imputed
knowledge, in consequence of what the fabrication shop foreman,
DiCristoforo, "knew." Specifically, the ALJ determined that
DiCristoforo "certainly anticipated the hazard posed by even an
experienced pipefitter undertaking alone and unsupervised the
'dangerous job' of rigging the 'big and heavy' pipe assemblies
[such as the pipe assembly at issue]," yet DiCristoforo "failed in
his supervision of even the experienced journeyman pipefitters on
the rigging of those pipe assemblies, by failing to adequately
communicate instructions that the pipe assemblies be rigged only
at his express[] direction and only under his direct supervision."
In addition, the ALJ found that though DiCristoforo testified that
he would gather "the right guys" to rig and load large pipe
assemblies like the one involved in the accident, that "team" "had
not been formed to rig and move the pipe assembly, and there [wa]s
no evidence that [DiCristoforo] had communicated to any workers
that he intended to form such a team that day."
Gallagher does not dispute that DiCristoforo's
constructive knowledge can be imputed to Gallagher. Gallagher's
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challenge is thus only to the ALJ's conclusion that DiCristoforo,
and therefore Gallagher, had constructive knowledge of Thibault
and Myles lifting, more than a few inches, a load that was not
well secured or properly balanced.
Gallagher first challenges the ALJ's "constructive
knowledge analysis" on the ground that it "had nothing to do with
the violative condition at issue" because "[t]raining in proper
rigging techniques would address securing and balancing suspended
loads." But, the ALJ supportably found that DiCristoforo's
testimony established that DiCristoforo anticipated that the
prohibited condition could occur even if one of the fabrication
shop pipefitters was trained in the relevant manner, so long as
the trained pipefitter undertook the rigging of the large pipe
assemblies alone and unsupervised. And Gallagher offers no reason
for concluding that this finding, if supported by substantial
evidence, cannot as a legal matter supply the basis for concluding
that DiCristoforo was therefore obliged to exercise reasonable
diligence to address that danger by taking steps to ensure that
such riggings would not occur without his direct supervision and
not to rely simply on the training that his personnel had received
to ensure that riggings would not be done in such a way as to cause
a violation of the safety standard when a load was lifted. See
Pride Oil Well Serv., 1991-93 CCH OSHD at p. 40,584 (finding
employer "had constructive knowledge because its supervisor could
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have . . . eliminated the hazard with the exercise of reasonable
diligence"). Thus, Gallagher's first challenge fails because the
finding is not, as a legal matter, unrelated to the violative
condition in the way that Gallagher contends.
Gallagher, alternatively, though relatedly, argues that
the ALJ's conclusion that Gallagher failed to exercise reasonable
diligence is wrong as a matter of law given that it was
"impossible" for the ALJ to find that Gallagher had constructive
knowledge of the violative condition given that certain findings
made by the ALJ necessarily "preclude any fault being attributed
to Gallagher." But, this argument, too, fails.
The Commission has ruled that the "reasonable diligence"
inquiry takes account of a number of factors, including "the
employer's obligation to have adequate work rules and training
programs, to adequately supervise employees, to anticipate hazards
to which employees may be exposed, and to take measures to prevent
the occurrence of violations." Precision Concrete Constr., 2001
CCH OSHD ¶32,331, p. 49,552 (No. 99-707, 2001) (citing Pride Oil
Well Serv., 1991-93 CCH OSHD at p. 40,583); see also Mountain
States Contractors, LLC v. Perez, 825 F.3d 274, 285 (6th Cir. 2016)
("When considering the question of reasonable diligence, the ALJ
looks to a number of factors including: 'an employer's obligation
to inspect the work area, to anticipate hazards to which employees
may be exposed, and to take measures to prevent the occurrence.'"
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(quoting Kokosing Constr. Co. v. Occupational Safety & Hazard [sic]
Review Comm'n, 232 Fed. Appx. 510, 512 (6th Cir. 2007))); N & N
Contractors, Inc. v. Occupational Safety & Health Review Comm'n,
255 F.3d 122, 127 (4th Cir. 2001) ("Factors relevant in the
reasonable diligence inquiry include the duty to inspect the work
area and anticipate hazards, the duty to adequately supervise
employees, and the duty to implement a proper training program and
work rules."). And Gallagher does not ask us to apply a different
test to assess DiCristoforo's reasonable diligence. In
consequence, it is hard to see how the findings that Gallagher
identifies as precluding the ALJ's ruling suffice to undermine
that ruling, given the other findings that the ALJ also made but
that Gallagher essentially ignores.
To be sure, the ALJ did find that, at the evidentiary
hearing, the Secretary presented no evidence to controvert the
compliance officer's initial conclusion "that the employees in the
fabrication shop had received sufficient training in rigging and
that [Thibault] had received proper training [from his union] on
how to rig the pipe assembly" that injured him. And, it is also
true that the ALJ found that the Secretary had "not demonstrated
that Gallagher failed to exercise reasonable diligence by not
having a work rule that explicitly prescribed or proscribed the
precise manners by which to rig the type of pipe assembly that was
involved in the accident." As Gallagher also notes, the ALJ did
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find as well that Gallagher "maintained and executed an adequate
inspection program in the fabrication shop[.]"
But Gallagher is mistaken in contending that -- in light
of "the short duration of the violative condition, and
[DiCristoforo's] near constant presence on the fabrication shop
floor," as well as the lack of "any 'evidence that . . . Gallagher
ha[d] a history of employees engaging in unsafe conduct when it
comes to rigging" -- these findings "conclusively demonstrate"
that "as a matter of law," Gallagher "cannot be charged with
constructive knowledge." The reason is that Gallagher neither
disputes the ALJ's other findings, nor explains why the ALJ could
not have relied on them in combination with the record as a whole,
which supports the Secretary's assertion that Gallagher failed to
exercise reasonable diligence notwithstanding the training the
employees had received and the other steps that the ALJ found that
Gallagher took to keep the worksite safe.
After all, in addition to the findings that Gallagher
highlights, the ALJ also found that DiCristoforo recognized the
dangerousness in rigging the particular type of pipe assembly at
issue.8 And the ALJ further found that DiCristoforo had identified
8 In its reply brief, for the first time, Gallagher argues
the ALJ "mischaracterized . . . DiCristoforo’s testimony in
contending that multiple pipefitters were required merely to rig
large assemblies" and contends DiCristoforo testimony only shows
that "a team of pipefitters was used because the size and weight
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a method of mitigating that danger by ensuring that, even though
his personnel had been trained in the rigging of pipe assemblies,
he would be present at the rigging only with a select "team," and
that he would then supervise that team. Moreover, the ALJ found
as well that, notwithstanding DiCristoforo's concern about
permitting even trained personnel to perform the rigging absent
his supervision of the select team, he had failed to adequately
communicate the requirement that he be present for such riggings
to employees at the shop, Thibault included.
of such large assemblies made them more dangerous to move and load
onto trucks for transport." But, as this argument is raised for
the first time in Gallagher's reply brief, it is waived. See
United States v. Eirby, 515 F.3d 31, 37 n.4 (1st Cir. 2008). And,
in any event, Gallagher's argument is inconsistent with
Gallagher's characterization of the same testimony in its post-
hearing briefing to the ALJ:
When it came to rigging and loading pipe assemblies, Mr.
DiCristoforo was the person in charge. He oversaw the
rigging and loading of pipe assemblies because: 1) it is
dangerous and 2) it requires the proper selection of
employees. In the years leading up to the accident, T.G.
Gallagher employees never rigged and loaded pipe
assemblies like the one involved in the accident without
Mr. DiCristoforo’s direction. In the six months leading
up to the accident, pipework assemblies (like the one
involved in the accident) were always rigged under the
direct supervision of Mark DiCristoforo.
Furthermore, viewing the entire record, there is substantial
evidence for the factual finding or inference that DiCristoforo
thought that rigging pipe assemblies like the one involved in
Thibault's accident was a "dangerous job," and that DiCristoforo's
prescribed procedure was not solely concerned with the mere loading
of the pipe assemblies onto trucks for transport.
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In this regard, the ALJ found that there was "no evidence
[the prescribed] procedure was set forth in any written form," and
that "it is likely that [DiCristoforo] communicated it to the
workers orally, if at all." And, the ALJ then went on to find,
"whether this protocol was communicated in writing or orally or
both, the weight of the evidence establishe[d] that it was
communicated inadequately."9
Finally, the ALJ found that it was more likely than not
that the employees, including Thibault, would have understood and
complied with that protocol had it been communicated to them.
Thus, the ALJ found that DiCristoforo's inadequate communication
gave rise to the violation, given DiCristoforo's failure to take
a step to address the hazardous condition that, in the exercise of
reasonable diligence, could have been taken: namely, properly
9 Significantly, the record also includes evidence that, in
addition to the accident instance, Thibault had twice before rigged
the same pipe assembly, by himself and without DiCristoforo's
knowledge, the same improper way he rigged it the day of the
accident. The record evidence showing these others instances of
Thibault rigging the pipe assembly in a manner that was
inconsistent with the prescribed procedure supports the ALJ's
finding of inadequate communication of the prescribed procedure
"regarding rigging large and heavy pipe assemblies" to "[Thibault]
as well as to other workers in the fabrication shop." And further
supporting that finding is Thibault's testimony that Myles did not
apprise him of the procedure. Specifically, Thibault testified
that Myles, who was assisting in the hoist of the improperly rigged
pipe assembly, did not caution Thibault that their actions
"contravened [DiCristoforo's] prescribed procedure."
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communicating the need for workers to assemble and work as a team
under the foreman's direction before performing such rigging.
As Gallagher does not challenge any of these findings,10
Gallagher's challenge to the ALJ's reasonable diligence -- and
thus constructive knowledge -- analysis cannot succeed. In so
concluding, we are mindful that the reasonable diligence inquiry
takes account not just of an employer's obligations regarding the
training that employees receive and the issuance of work rules.
That inquiry also considers factors such as an employer's
obligation to adequately supervise employees, to anticipate
hazards to which employees may be exposed, and to take measures to
prevent the occurrence of violations. See Precision Concrete
Constr., 2001 CCH OSHD at p. 49,552. And yet, even though the
reasonable diligence inquiry allows for consideration of all of
these factors, Gallagher simply fails to explain why it was
10
In a footnote in its opening brief, Gallagher does question
"one of the . . . bases" the ALJ relied upon in finding that
DiCristoforo's communication of the prescribed procedure was
deficient -- namely that the ALJ's conclusion regarding the
relevance of Myles's failure to caution Thibault that their
activities contravened DiCristoforo's procedure only makes sense
if Myles was a pipefitter, which he apparently was not. But, this
argument is not dispositive of any larger issue, as Gallagher
itself concedes its argument only addresses "one" of the multiple
bases relied upon by the ALJ with respect to its conclusion. And,
in any event, no matter what Myles's job at the shop was, he was
operating the crane hoisting the large pipe assembly during the
accident and Gallagher does not explain why Myles's knowledge, or
lack thereof, of the prescribed procedure would not be probative
of whether instructions were adequately provided to other shop
employees who also operated the crane to hoist pipe assemblies.
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"arbitrary, capricious or otherwise an abuse of discretion" for
the ALJ to weigh the factual findings supporting a conclusion that
Gallagher exercised reasonable diligence with the factual findings
suggesting the conclusion that Gallagher did not exercise
reasonable diligence, and for the ALJ to find that, in the balance,
Gallagher failed to exercise reasonable diligence. We thus deny
the petition for review with respect to the order regarding the
first item of the citation.
B.
We turn next to the second serious violation, which
concerns a violation of 29 C.F.R. § 1910.184(c)(9). That provision
requires that "[w]henever any sling is used, . . . [a]ll employees
shall be kept clear of loads about to be lifted and of suspended
loads." Id. The ALJ found, and Gallagher does not contest, that
while the pipe assembly was suspended as Thibault (with the
assistance of Myles) attempted to move the assembly, Thibault "put
his right 'hand on the pipe.'" The ALJ then concluded that
"Gallagher's failure to have, and thus enforce, a work rule that
prohibited a worker from placing hands directly on a suspended
load in the fabrication shop constitute[d] a lack of reasonable
diligence," sufficient to "charge[] [Gallagher] with having
constructive knowledge of the violative condition." Thus, once
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again, the key issue concerns whether Gallagher had constructive
knowledge of the existence of this prohibited condition.
Gallagher argues that the ALJ erred in concluding that
Gallagher "should have known in the exercise of reasonable
diligence . . . that [Thibault] would . . . place a hand directly
on a suspended load," given that the ALJ found "Thibault was fully
and adequately trained on how to rig large loads like the [pipe
a]ssembly [at issue] -- and that training included not placing his
hands on the load while suspended." But, contrary to Gallagher's
assertion, the ALJ did not find that Thibault's "training included
not placing his hands on the load while suspended." The ALJ found
instead that the training that Thibault did receive actually
"endorsed the practice of employees placing hands directly on
suspended loads under certain circumstances."
Regarding Thibault's training, though the ALJ found "no
evidence regarding the precise content of the rigging training
that [Thibault] received at the union," the ALJ did find that "the
pipefitter trade is generally regarded to be a construction
industry trade" and "that workers in the construction industry may
under some circumstances place hands directly on a suspended load."
In particular, the ALJ pointed out that with respect to an OSHA
construction-industry specific standard relating to cranes and
hoisted loads, "[u]nlike the cited general industry standard
relating to slings [29 C.F.R. § 1910.184(c)(9)], the construction
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industry [OSHA] standard for cranes . . . seemingly allows
employees to place hands directly on suspended loads."
But, as described by the ALJ, and not contested by
Gallagher in its petition for review, OSHA standards specific to
the construction industry are not applicable to the operation of
the fabrication shop's crane because the shop is not a place of
employment engaged in construction work. Instead, the parties
agree that the general industry standards, including 29 C.F.R.
§ 1910.184(c)(9), are applicable. And given Gallagher's agreement
that the general industry standards are applicable, Gallagher does
not explain why it would have been reasonable for it to rely on
training that record evidence suggests allowed for practices that
were incompatible with the general industry standard at issue,
which Gallagher does not dispute did not allow employees to place
their hands on a suspended load. Thus, given that the ALJ also
found that Gallagher's own safety manual endorsed a reliance on
the inappropriate construction industry standard, rather than 29
C.F.R. § 1910.184(c)(9) (the general industry standard), we see no
basis for disturbing the ALJ's finding that "Gallagher could not
reasonably regard [Thibault]'s union training and years of work
experience as having informed him not to place hands directly on
a load that was suspended by the fabrication shop's . . . crane."
Gallagher also argues that the ALJ's conclusion that
Gallagher had constructive knowledge of the prohibited condition
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was, in part, based on the erroneous conclusion that "Gallagher
had no specific written or unwritten work rule that prohibited a
worker [in the fabrication shop] from putting a hand directly on
a suspended load[.]" Gallagher contends that it did have a work
rule in its safety manual stating that employees "should never
stand or work under a suspended load," and, for that reason,
Gallagher contends that Thibault was "only able to put his hands
on the pipe assembly because he was violating this rule."
But the Secretary argues, and we agree, that Gallagher
"fail[ed] to urge these objections before the Commission."
Specifically, Gallagher failed to refer this "under a suspended
load" work rule "to the Commission's attention . . . by its
inclusion in a PDR," and the record is devoid of any indication
that the issue was otherwise raised sua sponte by a commissioner.
See P. Gioioso & Sons, Inc., 115 F.3d at 105-06 ("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, this work rule-based argument is
waived. See id.Moreover, it is not at all clear that Gallagher's work-
rule based challenge could succeed. The ALJ never stated that an
employee must necessarily be under a suspended load in order to
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lay hands on that load. And rightly so, as an employee who is
positioned adjacent to or even above a pipe assembly -- rather
than underneath the assembly -- could presumably lay their hands
on it. Thus, it is hardly clear that the work rule to which
Gallagher now points undermines the ALJ's finding that "Gallagher
had no specific written or unwritten work rule that prohibited a
worker from putting a hand directly on a suspended load[.]"
Gallagher's remaining arguments concerning Gallagher's
serious violation of 29 C.F.R. § 1910.184(c)(9) were also not
raised in its PDR and thus would appear to be waived, though the
Secretary does not so argue. In any event, they lack merit.
Gallagher contends that the fleeting nature of
Thibault's action and Thibault's lack of a history of breaking
work rules shows that there was "no indication that any such
infraction would occur" and that, when it did occur, it happened
too quickly for Gallagher to discover the violation of
§ 1910.184(c)(9).11 But, the required condition was that
"[w]henever any sling is used, . . . [a]ll employees shall be kept
clear of loads about to be lifted and of suspended loads."
29 C.F.R. § 1910.184(c)(9). In light of the fact that, as found
11
To the extent Gallagher is arguing that these facts support
a finding that the conduct at issue was unpreventable employee
misconduct, the ALJ considered and rejected Gallagher's UEM
affirmative defense, and Gallagher has not sought review of that
determination.
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by the ALJ, no one ever instructed Thibault not to place his hands
on a suspended load, coupled with other facts found by the ALJ
that have already been described -- that Gallagher had no work
rule prohibiting employees from laying hands on suspended loads
and that Gallagher relied on employees' union training and a safety
manual that did not prohibit such conduct -- we can hardly say
Thibault's clean disciplinary record12 rendered the ALJ's findings
regarding Gallagher's ability to anticipate and prevent the hazard
through reasonable diligence unsupported by substantial evidence.
And, because Gallagher is charged with only constructive
knowledge, it is of no consequence that neither DiCristoforo nor
any other supervisory official in the company did not actually see
Thibault place his hand on the pipe. Thus, Gallagher's challenge
on this score fails as well.
III.
For these reasons, Gallagher's petition for review is
denied.
12
With regard to Gallagher's urgings regarding Thibault's
"clean disciplinary record," notably record evidence also
"indicated that it was not unusual for [Thibault to place hands
directly on a suspended load]," because, as Thibault testified,
"usually you need to control [the load] so it doesn't swing around
or take off."
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