Southern Pan Services v. U.S. Department of Labor , 685 F. App'x 692 ( 2017 )

Case: 16-13417 Date Filed: 04/11/2017 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13417
________________________
Agency No. 08-0866
SOUTHERN PAN SERVICES,
Petitioner,
versus
U.S. DEPARTMENT OF LABOR,
Respondent.
________________________
Petition for Review of a Decision of the
Occupational Safety and Health Review Commission
________________________
(April 11, 2017)
Before ROSENBAUM, JULIE CARNES, and GILMAN, * Circuit Judges.
PER CURIAM:
*
Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
Case: 16-13417 Date Filed: 04/11/2017 Page: 2 of 14
This case comes before the Court on appeal from the Occupational Safety
and Health Review Commission’s (“Commission”) final decision finding that
Appellant Southern Pan Services (“Southern Pan”) willfully violated two safety
regulations promulgated pursuant to the Occupational Safety and Health Act
(“OSHA”). We find no error.
I.
Because the facts of this case have been thoroughly recounted in the
Commission’s decisions, we do not repeat them in detail here. To briefly
summarize, this case arises out of the collapse of a partially constructed, six-story,
poured-in-place concrete parking garage in Jacksonville, Florida. When the garage
“pancaked” to the ground on December 6, 2007, one Southern Pan employee was
killed and others were seriously injured.
Southern Pan was hired as a subcontractor on the construction project. As
part of its work, Southern Pan was specifically tasked with obtaining the shoring
and reshoring1 drawings for the garage. Southern Pan was then responsible for
building and installing the shoring and reshoring formwork to support the wet
1
A “shore” is defined by OSHA regulations as a “supporting member that resists a
compressive force imposed by a load.” 29 C.F.R. § 1926.700(b)(7). It is placed on the level
immediately below that which is currently being built and is used to support the formwork before
and during the concrete pour. “Reshoring” is defined as “the construction operation in which
shoring equipment (also called reshores or reshoring equipment) is placed, as the original forms
and shores are removed, in order to support partially cured concrete and construction loads.” 29
C.F.R. § 1926.700(b)(6). Reshoring is placed on the completed levels below and does not
support the structure, but carries the load of the wet concrete placed above.
2
Case: 16-13417 Date Filed: 04/11/2017 Page: 3 of 14
concrete loads during the construction process and placing the concrete loads for
some of the concrete pours (although not the one that was being poured at the time
of the accident).
At the time of the garage’s collapse, Southern Pan had switched to the 1-
over-2 shoring method, resulting in Southern Pan having removed the shoring and
reshoring from the first three levels of the garage. It had done so in contravention
of the engineering drawings at the site, which showed shoring and reshoring
extending to the ground. When shoring and reshoring extends to the ground, the
weight of any newly poured concrete loads is transferred through the formwork
and is not carried by the structural elements of the partially constructed garage.
Once the shoring and reshoring is removed from the lower levels, though, the
structure itself must bear the weight of any newly poured wet concrete.
On December 6, 2007, as another subcontractor was pouring the concrete for
a portion of the sixth floor of the garage, the structure became unable to support
the added weight of the newly poured wet concrete, in the absence of the shoring
and reshoring continuing to the ground. The garage collapsed, an employee died,
and other employees sustained numerous injuries.
The Secretary of Labor (“Secretary”) investigated the incident and on June
2, 2008, cited Southern Pan for two willful violations of OSHA. In the first willful
violation, the Secretary found that Southern Pan violated 29 C.F.R. § 1926.701(a)
3
Case: 16-13417 Date Filed: 04/11/2017 Page: 4 of 14
by failing to “have a qualified person determine if the formwork . . . would be
capable of supporting the additional load of the wet concrete, exposing the
employees to a structural collapse hazard.” In the second, the Secretary found
Southern Pan to have willfully violated 29 C.F.R. §1926.703(a)(2) for failing to
have all “[d]rawings or plans, including all revisions, for the . . . formwork
(including shoring equipment) . . . available at the jobsite.” 2 Over the course of
several written decisions, the Commission ultimately affirmed the willful-violation
citations and assessed a total penalty of $125,000.00 against Southern Pan.
On appeal to this Court, Southern Pan raises four issues. First, Southern Pan
challenges the Commission’s application of 29 C.F.R. § 1926.701(a), arguing that
the regulation does not apply to Southern Pan because it was not the employer
“directly responsible for the concrete operations” at the time of the garage’s
collapse. Second, Southern Pan argues that 29 C.F.R. § 1926.703(a)(2) did not
require the creation of drawings showing the 1-over-2 shoring method. Third and
fourth, Southern Pan challenges the Commission’s decisions that Southern Pan
willfully violated each of 29 C.F.R. § 1926.701(a) and 29 C.F.R. §1926.703(a)(2),
arguing that both findings of willful violations are not supported by substantial
evidence.
2
The Secretary also cited Southern Pan for two “serious” violations of OSHA, but the
Commission vacated both of these citations, and they are not before this Court on appeal.
4
Case: 16-13417 Date Filed: 04/11/2017 Page: 5 of 14
II.
Commission decisions “are entitled to considerable deference on appellate
review.” Fluor Daniel v. Occupational Safety & Health Review Comm’n, 295 F.3d
1232, 1236 (11th Cir. 2002). We review the Commission’s findings of fact to
determine whether they are supported by substantial evidence, which is “more than
a scintilla.” J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350, 1352 (11th Cir. 2000)
(quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). We have
noted that the Commission’s finding of willfulness is a finding of fact. Fluor
Daniel, 295 F.3d at 1236.
As for the Commission’s legal determinations, we review them for whether
they are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). Like our review of the
Commission’s factual findings, this is a “highly deferential standard” of review.
Fluor Daniel, 295 F.3d at 1236.
We have carefully reviewed the administrative record, considered the
parties’ arguments, and heard oral argument in this case. We now conclude that
the Commission correctly applied 29 C.F.R. § 1926.701(a) to Southern Pan and
that substantial evidence supports the Commission’s determination that Southern
Pan willfully violated 29 C.F.R. § 1926.701(a) and 29 C.F.R. § 1926.703(a)(2).
A.
5
Case: 16-13417 Date Filed: 04/11/2017 Page: 6 of 14
With respect to Southern Pan’s first challenge, we affirm the Commission’s
decision applying 29 C.F.R. § 1926.701(a) to Southern Pan as an “exposing
employer.” The Commission’s decision concluded that Southern Pan had violated
§ 1926.701(a) when “construction loads were placed on a concrete structure or
portion of a concrete structure without the employer having determined, based on
information received from a person who was qualified in structural design, that the
structure or portion of the structure was capable of supporting the loads.” Southern
Pan argues that 29 C.F.R. § 1926.701(a) should not apply to it because the
Secretary’s preamble to the final rule places responsibility for employee safety
with the “person directly responsible for the concrete operations.” See Concrete
and Masonry Construction Safety Standards, 53 Fed. Reg. 22,612-01, 22,617.
Here, the parties agree that the “person directly responsible for the concrete
operations” was not Southern Pan.
But as the Commission’s decision emphasizes, and as we agree, this
language in the rule’s preamble does not preclude application of the Commission’s
multi-employer worksite doctrine (also referred to as the “exposing-employer
doctrine”) to this case. As the Commission noted, “long-standing Commission
precedent hold[s] that an employer whose own employees are exposed to a hazard
or violative condition—an ‘exposing employer’—has a statutory duty to comply
6
Case: 16-13417 Date Filed: 04/11/2017 Page: 7 of 14
with a particular standard even where it did not create or control the hazard.” See
Anning-Johnson Co., 4 BNA OSHC 1193, 1198-99 (No. 3694, 1976).
Here, the Commission correctly found that Southern Pan’s employees were
exposed to the violative condition at the time of the garage’s collapse. As an
exposing employer, then, Southern Pan was required under OSHA to “do what
[was] ‘realistic’ under the circumstances to protect its employees from the hazard
to which a particular standard is addressed even though literal compliance with the
standard may [have been] unrealistic.” Id. at 1199. Because Southern Pan did not
undertake realistically available safety measures to protect its employees, the
Commission correctly found that Southern Pan had violated § 1926.701(a).
The Fifth Circuit’s decision in Southeast Contractors, Inc. v. Dunlop, 512
F.2d 675 (5th Cir. 1975),3 does not preclude our application of 29 C.F.R.
§ 1926.701(a) to Southern Pan under the exposing-employer doctrine. The single-
paragraph, per curiam opinion in Southeast Contractors refers favorably to former
OSHA Chairman Moran’s dissent in that case, which Southern Pan argues supports
its position. In its entirety, our predecessor court’s opinion in Southeast
Contractors states:
It is unnecessary that we decide the constitutionality of
the Occupational Safety and Health Act of 1970 and its
3
This Court is bound by the decisions issued by the Fifth Circuit prior to October 1,
1981. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
7
Case: 16-13417 Date Filed: 04/11/2017 Page: 8 of 14
enforcement procedures established by sections 5, 6, 8, 9,
10, 11, 12, and 17, which matter is also pending and
under submission before another panel of this Court in
Atlas Roofing Company, Inc. v. Secretary of Labor, No.
73-2249. We are in agreement with the well-reasoned
dissent of Chairman Moran of the Occupational Safety
and Health Review Commission in this matter, and
especially with that portion pertaining to the general rule
that a contractor is not responsible for the acts of his
subcontractors or their employees; accordingly, that the
tractor driver was not an employee of respondent.
Therefore, respondent was not using the motor vehicle
involved in this case at the time of the accident within the
meaning of 29 C.F.R. § 1926.-601(b)(4), and the majority
ruling of the Commission is erroneous.
Id. at 675.
Chairman Moran’s dissent, as referenced in Southeast Contractors, states
that “there can be no violation of the Act by a respondent for failure to comply
with a standard which charges some other employer with the duty of implementing
the standard,” Southeast Contractors, Inc., 1 BNA OSHC 1713, 1716 (No. 1445,
1974). But Southeast Contractors was decided in 1975, which was before the
Commission articulated the current exposing-employer doctrine in Anning-Johnson
in 1976. See Anning-Johnson Co., 4 BNA OSHC at 1198-99. And after Anning-
Johnson, the Fifth Circuit concluded that the exposing-employer doctrine was
reasonable. See Central of Ga. R. Co. v. Occupational Safety & Health Review
Comm’n, 576 F.2d 620, 624 (5th Cir. 1978) (stating that “we think that the
Commission’s allocation of burdens [in Anning-Johnson] is appropriate”).
8
Case: 16-13417 Date Filed: 04/11/2017 Page: 9 of 14
Applying the exposing-employer doctrine, Southern Pan could have easily
taken realistic measures to protect its employees from the hazard to which the
standard in § 1926.701(a) is addressed—namely, complying with the shoring and
reshoring drawings. The Commission did not abuse its discretion in applying the
exposing-employer doctrine to Southern Pan under these circumstances.
B.
Having determined that the standard in 29 C.F.R. § 1926.701(a) applies to
Southern Pan as an exposing employer, we must next consider whether the
Commission’s finding that Southern Pan willfully violated 29 C.F.R.
§ 1926.701(a) rests on substantial evidence. After thorough consideration, and for
all of the reasons discussed in the Commission’s decision, we find that it does.
First, substantial evidence underlies the Commission’s finding that Southern
Pan did not take reasonable measures, under the circumstances, to protect its
employees from the hazard, particularly since (1) Southern Pan knowingly
removed shoring and reshoring from the first three levels of the garage in deviation
from the only engineering drawings it had; and (2) Southern Pan thereafter
knowingly failed to provide inspectors with accurate drawings in order to
determine if the structure could handle the additional load of wet concrete.
Further, substantial evidence also supports the Commission’s classification
of Southern Pan’s violation as willful. This Court has explained that a willful
9
Case: 16-13417 Date Filed: 04/11/2017 Page: 10 of 14
violation is, “in its simplest form, ‘an intentional disregard of, or plain indifference
to, OSHA requirements.’” Fluor Daniel, 295 F.3d at 1239.
Here, the Commission relied on testimony from Southern Pan supervisors
showing that they knew that Section 1926.701(a) required them to determine
before each pour that the garage structure could withstand the added weight of
newly poured wet concrete loads. The testimony also showed that these
supervisors knew that the lives of Southern Pan employees depended on these
updated load-bearing calculations, yet the supervisors failed to make the
calculations before removing the shoring and reshoring that preceded the pouring
of more wet concrete onto the structure. In addition, the ALJ discredited one
supervisor’s testimony that the shoring was removed as the result of a
miscommunication. The ALJ found that testimony from other supervisors showed
that that was not the case. In short, substantial evidence supports the
Commission’s finding that Southern Pan knew it needed revised load-bearing
calculations once it removed the shoring and reshoring from the first three levels of
the garage under OSHA standards but that Southern Pan voluntarily chose not to
prepare such calculations.
C.
We also affirm the Commission’s finding that Southern Pan willfully
violated 29 C.F.R. § 1926.703(a)(2). First, the Commission did not act arbitrarily
10
Case: 16-13417 Date Filed: 04/11/2017 Page: 11 of 14
or capriciously in affirming the Secretary’s citation of Southern Pan under §
1926.703(a)(2) for failing to maintain all plans, including revisions, on the jobsite.
Southern Pan did not have written plans at the jobsite calling for its switch to 1-
over-2 shoring and the resulting removal of shoring and reshoring from the first
three levels of the garage. As the parties have stipulated, the only plans at the
jobsite showed shoring and reshoring to the ground. So Southern Pan’s removal of
the shoring and reshoring from the first three levels was in clear deviation from the
plans at the jobsite. Southern Pan’s switch to the 1-over-2 shoring method was a
“revision” for which § 1926.703(a)(2) plainly requires an updated drawing or plan.
As the Commission reasonably explained, “[a]n employer’s obligation to
create a drawing or plan that accurately represents the existing formwork is clear
from the language of § 1926.703(a)(2), which requires that the ‘[d]rawings or
plans, includ[e] all revisions.’ Indeed, OSHA has recognized that this provision is
intended to prevent accidents that could result from improperly erected formwork,
and written plans enable this protective purpose to be met.”
Southern Pan argues that it should not be held liable under 29 C.F.R.
§ 1926.703(a)(2) because it complied, alternatively, with the standard laid out in 29
C.F.R. § 1926.703(e) for testing the strength of concrete before removing shoring.
The Commission, however, concluded that § 1926.703(a)(2) and § 1926.703(e) are
11
Case: 16-13417 Date Filed: 04/11/2017 Page: 12 of 14
not alternative standards but, rather, impose different obligations and work in
tandem. We agree.
As the Commission correctly explained, § 1926.703(e) addresses only the
situation where shoring and reshoring is removed and no subsequent loads are then
added. Section 1926.703(e)(2), for example, states that “[r]eshoring shall not be
removed until the concrete being supported has attained adequate strength to
support its weight and all loads in place upon it.” 29 C.F.R. § 1926.703(e)(2).
This standard says nothing about the circumstances at issue here—where reshoring
was being removed and then more loads were added—and is not a substitute for
the requirement to have accurate written plans on the jobsite. Mere compliance
with testing the strength of concrete under one circumstance is not a substitute for
a jobsite requirement addressing a wholly separate circumstance.
Second, we agree with the Commission that Southern Pan had the requisite
knowledge of its Section 1926.703(a)(2) violation. Unlike the facts in Comtran
Group, Inc. v. United States Department of Labor, 722 F.3d 1304, 1316 (11th Cir.
2013), here, the facts do not support an understanding that a single supervisor went
“rogue.” Rather, multiple Southern Pan supervisors knew that the shoring and
reshoring was being removed from the first three levels of the garage in
contravention of the only engineering plans at the site, and they ratified this
conduct.
12
Case: 16-13417 Date Filed: 04/11/2017 Page: 13 of 14
For example, testimony from Southern Pan supervisors shows that they
visited and inspected the site multiple times over the course of the 46 days during
which the shoring and reshoring was removed; they knew that revised plans did
not exist at the site to reflect their removal of the shoring and reshoring; and yet
they failed to order any revised plans. So substantial evidence underlies the
Commission’s finding that Southern Pan had “eyes and ears” at the site, and this
knowledge can be fairly imputed to Southern Pan.
Finally, substantial evidence supports the Commission’s classification of
Southern Pan’s violation of 29 C.F.R. § 1926.703(a)(2) as willful. Under the
substantial-evidence standard, this Court does “not reweigh or re-examine the
credibility choices made by the factfinder.” See Kelliher v. Veneman, 313 F.3d
1270, 1277 (11th Cir. 2002). Here, the Commission heard testimony from
Southern Pan employees and supervisors and determined that, despite knowing the
importance of having written shoring plans at the site and knowing that the only
plans at the site showed shoring and reshoring to the ground, multiple Southern
Pan supervisors oversaw and ordered the removal of the shoring and reshoring on
the first three levels of the garage over many days. The Commission cited this
abundant testimony in support of its finding that the Southern Pan supervisors
possessed “willful states of mind.” We find no error.
13
Case: 16-13417 Date Filed: 04/11/2017 Page: 14 of 14
For the foregoing reasons, we affirm the Commission’s determination that
Southern Pan willfully violated 29 C.F.R. § 1926.701(a) and 29 C.F.R. §
1926.703(a)(2).
AFFIRMED.
14