Austin Bridge & Road Inc. v. Occupational Safety & Health Review Commission

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 20, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 03-60642
Summary Calendar
_____________________
AUSTIN BRIDGE & ROAD INC.,
Petitioner,
versus
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;
ELAINE CHAO, SECRETARY, DEPARTMENT OF LABOR,
Respondents.
_________________________________________________________________
Petition for Review:
Occupational Safety & Health Review Commission
Cause No. 02-0983
_________________________________________________________________
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1
PRADO, Circuit Judge.
In this appeal, the petitioner, Austin Bridge & Road, Inc.
(Austin Bridge), challenges a decision by Occupational Safety and
Health Review Commission (the Commission). In the decision, the
Commission determined Austin Bridge violated section
1926.550(b)(2) of the Occupational Safety and Health Act (the
Act), and assessed a penalty of $4,500.00. After considering the
1
Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
1
parties’ arguments on appeal, this Court affirms the Commission’s
decision.
Factual Background
This appeal arises from a construction accident involving
the over-loading of a crane during an attempt to move a large
concrete beam. Austin Bridge used the crane to lift a beam which
weighed thousands of pounds more than the crane could sustain.
At the time of the incident, Austin Bridge did not know the
actual weight of the beam. But as the crane hoisted the beam
from the ground, the beam swung out and caused the crane to
overturn.
After investigating the accident, the Secretary of Labor
(the Secretary) issued a citation against Austin Bridge for
violating the OSHA by exceeding the rated load capacity of the
crane. Austin Bridge contested the citation, and the Commission
conducted a hearing. After the hearing, the administrative law
judge (ALJ) determined Austin Bridge failed to act with
reasonable diligence by not ascertaining the actual weight of the
beam. The ALJ found the circumstances surrounding the particular
lift placed Austin Bridge on notice that the beam was likely to
be too heavy for the single crane. Austin Bridge challenges that
determination in this appeal.
Standard of Review
This Court reviews the Commission’s findings of fact under
2
a substantial evidence standard, affording deference to the ALJ’s
determination upon hearing the evidence.2 This Court is “bound
by the ALJ’s findings of fact, including his judgments of
credibility supporting those facts, if they are supported by
substantial evidence on the record considered as a whole.”3 A
reviewing court upholds an ALJ’s properly supported findings of
fact, even if that particular reviewing court would reach a
different result de novo.4 A substantial evidence inquiry
employs an objective standard. “For factual determinations, the
Supreme Court has defined substantial evidence as ‘such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.’”5 This Court regards questions of law with a
similarly deferential standard to the ALJ and Commission’s
decisions. This Court can only overturn a Commission’s
conclusions of law if those conclusions are “arbitrary,
capricious, and abuse of discretion or otherwise not in
2
See 29 U.S.C. § 655(f); Cleveland Consol., Inc. v.
Occupational Safety and Health Review Comm’n, 649 F.2d 1160, 1167
(5th Cir. 1981).
3
Cleveland Consol., 649 F.2d 1160 at 1167.
4
See id.5
Nat’l Grain and Feed Ass’n v. Occupational Safety and
Health Admin., 866 F.2d 717, 728 (5th Cir. 1989), citing Indus.
Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 641-
642 (1980).
3
accordance with the law.”6
Whether Austin Should Have Known the Crane Was Overloaded
On appeal, Austin Bridge maintains the ALJ improperly
allocated the burden of proof in determining whether Austin
Bridge violated the OSHA. In particular, Austin Bridge contends
the ALJ focused on facts Austin Bridge failed to prove rather
than on what the Secretary actually proved.
Section 1926.550(b)(2) of the OSHA provides that “[a]ll
crawler, truck, or locomotive cranes in use shall meet the
applicable requirements for design, inspection, construction,
testing, maintenance, and operation as prescribed in the ANSI
B30.5-1968, Safety Code.”7 To comply with this section, “[n]o
crane shall be overloaded beyond the rated load.”8 To prove a
violation of these crane use regulations, the Secretary had to
prove (1) the cited standard applied, (2) there was a failure to
comply with the cited standard, (3) employees had access to the
violative condition, and (4) the cited employer either knew or
could have known of the condition with the exercise of reasonable
diligence.9 Because the first three elements of a violation are
6
See Trinity Marine Nashville, Inc. v. OSHRC, 275 F.3d 423,
426-27 (5th Cir. 2001).
7
29 C.F.R. § 1926.550(b)(2)(2003).
8
ANSI B30.5-1968 Safety Code for Crawler, Locomotive and
Truck Cranes ¶ 5-3.2.1a.
9
See Walker Towing Corp., 14 BNA OSHC 2072, 2074, No. 87-
1359, 1991-93 CCH OSHD ¶ 29239 (Feb. 15, 1991).
4
not disputed on appeal, this Court must consider whether
substantial evidence supports the ALJ’s determination that Austin
Bridge should have investigated the exact weight of the beam
before attempting the lift and whether the ALJ’s conclusion that
Austin Bridge violated safety regulations was arbitrary and
capricious. After reviewing the evidence, the Court concludes
substantial evidence supports the ALJ’s determination that
circumstances placed Austin Bridge on notice of the crane’s over-
loaded condition and that Austin Bridge should have investigated
the weight of the concrete.
During the hearing on the violation, the Secretary’s expert,
Leon Johnson, testified that in calculating the weight of
construction beams, an exact weight cannot be determined because
“no one is quite sure just how much of what particular aggregate
content of the concrete is in there, how much rebar is actually
in there, and whether they maintained their closeness to
tolerances.” Johnson explained that a person working within the
construction industry would know that these calculated weights
are not the exact weight of the beam. Johnson also testified
that the crane’s lifting capacity was 78,860 pounds. He
explained that based on the calculated weight of the beam and the
weight of the rigging used during the lift, the total calculated
weight of the lift was just over 98 percent of what the crane
could sustain. Johnson opined that an employer who determines a
planned lift was within 98 per cent of the maximum capacity of
5
the crane should “make sure he knows exactly what the load is to
weigh and he needs to know that the crane is exactly level and,
if the crane has to travel, will travel on a level roadbed or a
level mats [sic] and making sure that within – when you’re that
close to 100-percent capacity, everything has got be just exactly
right.” Johnson estimated the crane was 102 per cent overloaded
when the lift began and that the overloading increased as the
crane swung the beam towards the lifted position.
Douglas Walker, a crane operator dispatched to the Austin
Bridge job site, confirmed Johnson’s testimony about the weight
of beams. Walker testified that beams often weigh more than even
the manufacturing estimate states. Walker stated that he does
not normally rely on the manufacturer’s estimate of beam weight
because “we don’t take the risk on our cranes up to the maximum
capacity. We leave ourself [sic] a little bit of cushion there
because we know that those weights can vary.”
In addition, Mike Pettit, an engineering manager for Austin
Bridge, testified that prior to the accident, he estimated the
weight of the beam as 74,000 pounds.10 When questioned by the
ALJ, Pettit admitted that although a bill of lading is usually
delivered with a beam, he did not rely on the bill of lading to
calculate the weight of the beam. Pettit agreed that it would be
10
The way bill of lading, obtained by Austin Bridge after
the accident, indicated the beam weighed 77,690; the beam
actually weighed a little over 78,000 pounds.
6
prudent to look at a bill of lading that reflected the actual
weight of a beam. Pettit testified, however, that he did not
think it unusual to calculate a beam’s weight without looking at
a bill of lading.
Based on the testimonies of these witnesses, a reasonable
mind could accept the ALJ’s conclusion that Austin Bridge was on
notice that further investigation into the true weight of the
beam was necessary.11 The evidence shows the calculated weight
was dangerously close to the crane’s maximum capacity. Although
Austin Bridge claims the ALJ improperly placed the burden upon it
to disprove the Secretary’s assertions that due diligence could
have produced discovery of the under-estimated weight, the
evidence at the hearing conclusively showed Austin Bridge made no
attempt to find the true weight of the beam prior to the lift.
Austin Bridge relied solely on the lift plan, even after this
plan involved a mere two percent margin of error for the crane’s
capacity.
Testimony from all witnesses involved in the construction
project stated that bills of lading usually accompany these beams
upon delivery. The evidence indicates these bills of lading
contain the manufacturer’s calculated weight. Testimony
concerning the way bill, a type of bill of lading from the
supplier, explained that these bills of lading contain the actual
11
See Nat’l Grain and Feed Ass’n, 866 F.2d at 728.
7
weight of the beam. Thus, the evidence at trial established the
availability of information about the true weight of the beam had
Austin Bridge attempted to investigate.
Even though the ALJ referred to a witness that Austin Bridge
“failed to call,” the ALJ observed the Secretary’s burden to
establish that due diligence would have produced this
information. The Secretary met this burden by proving a lack of
certain behaviors that the ALJ agreed a reasonable employer is
expected to assert, such as attempting to locate the missing
bills or otherwise “ascertain the accuracy of the engineered
weight.” The language used in the ALJ’s opinion, citing this
lack on Austin Bridge’s part, merely pointed out Austin Bridge’s
lack of rebuttal evidence, rather than mis-allocating the
Secretary’s burden of proof. Thus, substantive evidence supports
the ALJ’s determination that due diligence by Austin Bridge
required finding the true weight of the beam.12 Because
substantial evidence supports the ALJ’s findings of notice and
lack of due diligence on the part of Austin Bridge, the ALJ’s
conclusion that Austin Bridge violated OSHA was therefore not
arbitrary or capricious.13 For these reasons, the Court AFFIRMS
the decision of the Commission.
AFFIRMED.
12
See 29 U.S.C. § 655(f); Walker Towing Corp., 14 BNA OSHC
at 2074.
13
See Trinity Marine Nashville, 275 F.3d at 426-27.
8
9