Latite Roofing & Sheet Metal, LLC v. Occupational Safety and Health Review Commission ( 2021 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14793
Non-Argument Calendar
____________________
LATITE ROOFING & SHEET METAL, LLC,
Petitioner,
versus
OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION,
U.S. DEPARTMENT OF LABOR,
Respondents.
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2 Opinion of the Court 20-14793
____________________
Petition for Review of a Decision of the
Occupational Safety and Health Review Commission
Agency No. 18-1845
____________________
Before JORDAN, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Latite Roofing and Sheet Metal, LLC (“Latite”) appeals
from the Occupational Safety and Health Review Commission’s
(“Commission”) affirmance of the Administrative Law Judge’s
(ALJ) decision finding a repeat violation of 29 C.F.R. §
1926.605(b)(10) and imposing a penalty. On appeal, Latite ar-
gues that the ALJ abused her discretion when she accepted per-
jured testimony, held that Latite violated the Occupational Safety
and Health Act’s fall protection standard, held that it was a repeat
violation, and held that an increased penalty was warranted.1
1 Latite mentions, in a footnote, its challenge below to the timeliness of the
Occupational Safety and Health Administration’s (“OSHA”) issuance of the
underlying citation. However, we have held that an issue only raised in a foot-
note is not properly raised before this Court and is waived. Brown v. United
States, 720 F.3d 1316, 1333 (11th Cir. 2013); see also United States v. Hardman,
297 F.3d 1116, 1131 (10th Cir. 2002) (“Arguments raised in a perfunctory man-
ner, such as in a footnote, are waived.”). Further, 29 U.S.C. § 658(c) requires
the issuance, not the receipt, of the citation no more than six months after the
violation; the evidence adduced at the hearing supported a finding that this
occurred.
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20-14793 Opinion of the Court 3
Because we write for the parties, we assume familiarity with
the facts and set out only those necessary for the resolution of this
appeal. The United States Department of Labor’s Occupational
Safety and Health Administration (“OSHA”) conducted an inspec-
tion of Latite’s roofing activity on April 25, 2018, and issued a Cita-
tion and Notification of Penalty alleging a repeat violation of 29
C.F.R. § 1926.501(b)(10) and proposing a penalty of $71,137.
After a hearing before the ALJ, the ALJ issued an opinion af-
firming the citation and penalty. The Commission declined to
review the decision, making the ALJ’s decision the decision of
the Commission. 29 C.F.R. § 2200.90(f).
We accord considerable deference to Commission deci-
sions and apply the substantial evidence standard. Fluor Daniel
v. Occupational Safety & Health Rev. Comm’n, 295 F.3d 1232,
1236 (11th Cir. 2002). Under this standard, “[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). “Substantial evidence is
more than a scintilla and is such relevant evidence as a reasona-
ble person would accept as adequate to support a conclusion.”
Fluor Daniel, 295 F.3d at 1236 (cleaned up). We will not over-
turn decisions by the Commission unless they are “arbitrary, ca-
pricious, an abuse of discretion, or otherwise not in accordance
with [the] law.” 5 U.S.C. § 706(2)(A).
I.
Latite argues that the ALJ relied on perjurious testimony
to support the citation. Specifically, Latite argues that OSHA
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4 Opinion of the Court 20-14793
compliance officer Burcham allegedly provided perjured testi-
mony about two things. In the first, Latite asserts that Burcham
testified that he saw a Latite employee pushing a wheelbarrow
down to “probably within four feet” of the edge of the roof and
dumping tiles in the wheelbarrow into a dump truck parked be-
low but later admitted he had not seen the wheelbarrow operator
do that. In the second, he testified that he saw tiles that had been
removed from the roof stacked along the ridge and that the
wheelbarrow was full of tiles. But on cross examination, and
closer examination of the photos, he admitted that the stacks
were instead paper and that the wheelbarrow was empty. Latite
argues this change in testimony was important because the Sec-
retary’s failure to show that one of the employees was exposed
to the hazard means its case for the citation cannot be supported.
We reject Latite’s arguments. To the extent that Latite ar-
gues that Burcham committed perjury when he testified that he
saw the wheelbarrow operator dump tiles, we note that Burcham
never so testified. Instead, he testified about where the dump truck
was located and how the wheelbarrow operator would have had
to have gotten close to the edge to dump the tiles. In his declara-
tion, attached to the motion for summary judgment, Burcham at-
tested that from his investigation, he learned that employees had
to get close to the edge of the roof to dump the tiles; he never stated
that he saw that. Second, that Burcham changed his testimony on
cross examination when shown blown-up photographs is irrele-
vant to the ALJ’s finding that Latite violated the regulation because
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20-14793 Opinion of the Court 5
that finding was based on the objective photographs entered into
evidence.
II.
Latite argues the record contains substantial credible evi-
dence that Latite was in compliance with the applicable safety reg-
ulations. It argues that Burcham’s photographs show the employ-
ees on the portion of the roof where only a safety monitor was re-
quired, other than the wheelbarrow operator who fetched an
empty wheelbarrow on the portion of the roof that required more
safety measures. Latite also points to testimony from its Corporate
Safety Director that all of the employees were wearing safety har-
nesses and that anchors and lanyards were still in place on the
larger roof. Latite also argues that it was operating in conformance
with the recommendations of the OSHA special task force for the
removal of tile from sloped roofs in South Florida.
“To prove a violation of an OSHA standard, the Secretary
[of Labor] must show by a preponderance of the evidence that
(1) the cited standard applies, (2) there was noncompliance with
its terms, (3) employees had access to the violative conditions,
and (4) the cited employer had actual or constructive knowledge
of those conditions.” Sec’y of Labor v. Southwestern Bell Tele.
Co., 19 BNA OSHC 1097, 1098, 2000 WL 1424806 (OSHRC
No. 98–1748, 2000).
Latite was cited for violating 29 C.F.R. § 1926.501(b)(10),
which provides:
Roofing work on Low-slope roofs. Except as other-
wise provided in paragraph (b) of this section, each
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6 Opinion of the Court 20-14793
employee engaged in roofing activities on low-
slope roofs, with unprotected sides and edges 6 feet
(1.8 m) or more above lower levels shall be pro-
tected from falling by guardrail systems, safety net
systems, personal fall arrest systems, or a combina-
tion of warning line system and guardrail system,
warning line system and safety net system, or warn-
ing line system and personal fall arrest system, or
warning line system and safety monitoring system.
Or, on roofs 50–feet (15.25 m) or less in width (see
appendix A to subpart M of this part), the use of a
safety monitoring system alone [i.e. without the
warning line system] is permitted.
Here, the Latite employees were working on a roof that con-
tained two sections, one of which was over 50 feet in width, and all
of which were over 6 feet high. That portion of the roof over 50
feet in width was subject to the requirement of having “guardrail
systems, safety net systems, personal fall arrest systems, or a
combination of warning line system and guardrail system, warn-
ing line system and safety net system, or warning line system and
personal fall arrest system, or warning line system and safety
monitoring system.” The photographs do not show any of those
features and thus Latite was in violation of the regulation. While
Latite’s Corporate Safety Director testified about the presence of
lanyards and anchors, he did not point them out on any of the
many photos in evidence and could not testify about whether they
were being used because he arrived at the construction site after
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20-14793 Opinion of the Court 7
the employees descended. The ALJ found him not credible and
this Court must defer to the ALJ's credibility determinations un-
less plainly wrong. Stone & Webster Const., Inc. v. U.S. Dep't of
Lab., 684 F.3d 1127, 1133 (11th Cir. 2012) (“[t]he substantial
evidence standard limits the reviewing court from deciding the
facts anew, making credibility determinations, or re-weighing
the evidence”). In light of that determination, his testimony will
not provide substantial evidence.
The Secretary can establish that the employees had access
to the violative condition by showing that the employee was ac-
tually exposed to the cited condition or that access to the condi-
tion was reasonably predictable. Sec’y of Labor v. Phoenix Roof-
ing, Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995), aff’d,
79 F.3d 1146 (5th Cir. 1996) (unpublished).
In order for the Secretary to establish em-
ployee exposure to a hazard she must show that it is
reasonably predictable either by operational neces-
sity or otherwise (including inadvertence), that em-
ployees have been, are, or will be in the zone of dan-
ger. . . . the inquiry is not simply into whether expo-
sure is theoretically possible. Rather, the question
is whether employee entry into the danger zone is
reasonably predictable.
Sec’y of Labor v. Fabricated Metal Prod., Inc., 18 O.S.H. Cas.
(BNA) ¶ 1072 (O.S.H.R.C. Nov. 7, 1997). Here, the ALJ noted that
previous Commission cases had recognized that the inquiry was
fact-intensive and that the zone of danger could exceed six feet.
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8 Opinion of the Court 20-14793
The photographs showed that employees were moving along the
roof that had no safety system and that the safety monitor was not
observing them. Although Latite argues that there was no evi-
dence that the employees were near the edge of the roof, we agree
with the ALJ that it was reasonably predictable that employees
would come within the zone of danger of the unguarded roof. Fi-
nally, Latite had actual knowledge of the conditions because the
Safety Coordinate was on the site, as found by the ALJ.
III.
Next, Latite argues that the Secretary failed to produce sub-
stantial evidence to support the repeat violation classification. It
argues that its previous violations were not substantially similar.
“This Court has held that a violation is ‘repeated’ for pur-
poses of 29 U.S.C.A. § 666(a) if (1) the same standard has been vio-
lated more than once and (2) there is a ‘substantial similarity of vi-
olative elements’ between the current and prior violations.” D &
S Grading Co. v. Sec’y of Lab., 899 F.2d 1145, 1147 (11th Cir. 1990)
(quoting Bunge Corp. v. Sec’y of Lab., 638 F.2d 831, 837 (5th Cir.
1981)). Further, the Secretary bears the burden of showing the req-
uisite substantial similarity of violative elements. Id. at 1148. Once
substantial similarity is shown, the burden shifts to the employer
to disprove substantial similarity or prove any affirmative defense
it may have. Id. We review the ALJ’s decision for abuse of discre-
tion. Id. In D & S Grading, we upheld a finding of repeat violation
where the nature of the conditions and hazards were similar. Id.
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20-14793 Opinion of the Court 9
Here, the ALJ found that three previous citations were sub-
stantially similar violations so as to warrant the designation of re-
peat citation. In the first, OSHA cited Latite for violating the same
provision and characterized it as exposure to a fall hazard while
working on a roof without fall protection. In the second, OSHA
cited Latite for violating 1926.501(b)(1), and the ALJ described it as
exposing employees to a fall hazard while working on an unpro-
tected roof without any means of fall protection. There, the em-
ployees walked on a sloped roof between two ladders without
safety monitors and without wearing fall protection. In the third,
OSHA cited Latite for violating 1926.501(b)(13) for exposing em-
ployees to a fall hazard of 16 feet without the use of conventional
fall protection. The ALJ noted that in each case, Latite exposed its
employees to fall hazards from roofs ranging from 16 to 50 feet by
failing to comply with fall protection requirements. We cannot
conclude that the ALJ abused her discretion: the three previous ci-
tations, as here, involved employees working on dangerously un-
protected roofs without any safeguards.
IV.
Finally, Latite argues that the assessed penalty was unsup-
ported by substantial evidence in the record. Specifically, it argues
that no explanation was ever provided as to why the Secretary had
agreed to no penalty in two previous cases but imposed a $71,137
penalty here. Further, the six-month delay in issuing the citation
belies any alleged concern about the seriousness of the citation.
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10 Opinion of the Court 20-14793
When determining an appropriate penalty, the Commission
considers the following factors: (1) the employer’s size of business;
(2) the gravity of the violation; (3) the good faith of the employer,
and (4) the employer’s history of previous violations. 29 U.S.C. §
666(j). In D & S Grading we affirmed the ALJ’s penalty based on
its reasoning that the company had continued to provide unsafe
working conditions despite numerous citations and fines. 899 F.2d
at 1148.
Here, the ALJ explained that the Secretary based the penalty
amount on Latite’s history of similar violations and lack of good
faith based on its failure to remedy the problem. Further, the Sec-
retary determined the severity of the violation to be “high-greater”
because the type of injury that could result from the violation was
death. Further, it determined the probability of injury was high
because of the “length of time, the height and number of people
involved.” With those factors, the Secretary multiplied the penalty
by five, which was the number of times Latite had been cited.
We agree with the ALJ that the penalty was warranted.
Latite continued to engage in practices that violated regulations
and put its employees at risk of death or injury. That this particular
citation did not involve conditions as dangerous as others that
Latite did not receive fines for is of no moment: apparently previ-
ous lenity resulted in Latite’s sense of impunity. Further, the seri-
ousness of the citation cannot be adjudged by how long the agency
took in issuing its citation because we have no way assessing how
busy the agency was at that time or what information was required
to make the citation.
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20-14793 Opinion of the Court 11
For the foregoing reasons, the decision of the ALJ is af-
firmed.
AFFIRMED