AJP Construction, Inc. v. Secretary of Labor

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2003 Decided February 13, 2004

No. 03-1073

AJP CONSTRUCTION, INC.,

PETITIONER

v.

SECRETARY OF LABOR,

RESPONDENT

On Petition for Review of an Order of the

Occupational Safety and Health Review Commission

Joseph P. Paranac Jr. argued the cause and filed the brief

for petitioner.

John Shortall, Attorney, U.S. Department of Labor, argued

the cause for respondent. With him on the brief were Joseph

M. Woodward, Associate Solicitor, and Bruce F. Justh, Coun-

sel.

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.

2

Before: EDWARDS, SENTELLE, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Petitioner, a construction company,

challenges the Occupational Safety and Health Review Com-

mission’s affirmance of several citations for fall-protection

violations issued after one of the company’s employees fell to

his death. Because the Commission’s decision is well sup-

ported by substantial evidence and because the company had

fair notice of the applicable regulations, we deny the petition.

I.

Adopted ‘‘to assure so far as possible TTT safe and healthful

working conditions,’’ 29 U.S.C. § 651(b) (2000), the Occupa-

tional Safety and Health Act requires employers to ‘‘comply

with occupational safety and health standards promulgated

under [the] Act,’’ id. § 654(a)(2) (2000). The Occupational

Safety and Health Administration (OSHA) regularly inspects

workplaces and issues citations for violations of its safety

standards. OSHA classifies citations as not serious, serious,

or willful; penalties increase with the severity of the violation.

Id. § 666(a)-(c) (2000). Employers may challenge citations

before the Occupational Safety and Health Review Commis-

sion. To establish a violation, the Secretary of Labor has the

burden of proving: ‘‘(a) the applicability of the cited standard,

(b) the employer’s noncompliance with the standard’s terms,

(c) employee access to the violative conditions, and (d) the

employer’s actual or constructive knowledge of the violation

(i.e., the employer either knew, or with the exercise of

reasonable diligence could have known, of the violative condi-

tions).’’ Sec’y of Labor v. AJP Constr. Inc., 19 O.S.H. Cas.

(BNA) 2204 (2003), available at 2003 WL 145418, at *2;

accord Am. Wrecking Corp. v. Sec’y of Labor, 351 F.3d 1254,

1261 (D.C. Cir. 2003).

Petitioner AJP Construction, Inc. (AJP) served as the

concrete subcontractor for the construction of a high-rise

residential building in Hoboken, New Jersey. Responding to

a hot-line call reporting fall-related accidents and other safety

hazards, OSHA began an inspection of the construction site in

3

the fall of 2000. While OSHA’s investigation was pending,

AJP employee James Sherengo fell to his death while work-

ing at the site. At the time of the fatal accident, Sherengo

and two other AJP employees were working on a seventh-

floor ‘‘outrigger scaffold.’’ OSHA regulations define an out-

rigger scaffold as ‘‘a supported scaffold consisting of a plat-

form resting on outrigger beams (thrustouts) projecting be-

yond the wall or face of the building or structure, the inboard

ends of which are secured inside the building or structure.’’

29 C.F.R. § 1926.450(b) (2003). The accident occurred when

a crane hit construction materials hanging over the edge of

the twelfth floor, toppling them onto the seventh-floor scaf-

fold and causing Sherengo’s deadly fall.

After the fatal accident, OSHA cited AJP for several

violations relating to Sherengo’s death. First, and central to

this case, OSHA found that AJP knowingly failed to use

personal fall-arrest or guardrail systems to protect the em-

ployees on the outrigger scaffold in willful violation of 29

C.F.R. § 1926.451(g)(1)(vii) (2003). Specifically, OSHA found

that the outrigger scaffold had no guardrails and that Sheren-

go wore no fall-protection equipment. Although the other

two employees working on the outrigger scaffold wore har-

nesses, the harnesses were entirely unsecured. OSHA also

found that the large stack of construction material that fell

from the twelfth floor was neither secured nor placed away

from the edge of the building in violation of 29 C.F.R.

§ 1926.451(h)(1); that the scaffold was not ‘‘erected TTT under

the supervision and direction of a competent person qualified

in scaffold erection’’ in violation of 29 C.F.R. § 1926.451(f)(7);

that the scaffold had not been constructed in accordance with

a professional engineer’s design in violation of 29 C.F.R.

§ 1926.452(i)(8) (2003); that the employees working on the

scaffold had never been ‘‘trained by a person qualified TTT to

recognize the hazards associated with the type of scaffold

being used and to understand the procedures to control or

minimize those hazards’’ in violation of 29 C.F.R.

§ 1926.454(a) (2003); and finally, that AJP had failed to

protect employees exposed to the elevated unguarded edge of

the building itself in violation of 29 C.F.R. § 1926.501(b)(1)

4

(2003). In addition, OSHA cited the company for several fall-

protection violations unrelated to the fatal accident.

AJP contested all of the citations before the Commission.

Pursuant to 29 U.S.C. § 661(j) (2000), the Commission ap-

pointed an administrative law judge who held a five-day

evidentiary hearing. With respect to the willful violation of

29 C.F.R. § 1926.451(g)(1)(vii), the company did not dispute

that the outrigger scaffold lacked guardrails or that the three

employees wore insufficient fall protection. Instead, AJP

argued that it lacked the level of knowledge required for a

violation. It also challenged the willful classification. Reject-

ing AJP’s arguments, the ALJ affirmed the willful violation

as well as a majority of the other citations. AJP filed a

petition for review with the Commission. When the Commis-

sion declined to review the case, the ALJ’s decision became

the Commission’s final order. See 29 U.S.C. § 661(j).

In its petition for review in this court, AJP challenges all of

the Commission’s adverse determinations, arguing that they

are unsupported by substantial evidence. The company also

argues that the scaffolding regulations fail to provide the fair

notice required by the Fifth Amendment’s Due Process

Clause. See Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1328-29

(D.C. Cir. 1995) (recognizing that agency regulations must

provide fair notice before penalties are imposed).

II.

We will affirm the Commission’s decision unless it is ‘‘arbi-

trary, capricious, an abuse of discretion, or otherwise not in

accordance with the law.’’ 5 U.S.C. § 706(2)(A); see also Am.

Wrecking, 351 F.3d at 1261. Commission findings of fact are

conclusive ‘‘if supported by substantial evidence on the record

considered as a whole.’’ 29 U.S.C. § 660(a) (2000). Under

that standard, we uphold Commission findings so long as

there is ‘‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’’ Whirlpool Corp.

v. OSHRC, 645 F.2d 1096, 1101 (D.C. Cir. 1981) (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951))

(internal quotation marks omitted). Moreover, ‘‘[t]he ques-

5

tion we must answer TTT is not whether record evidence

supports [petitioner’s] version of events, but whether it sup-

ports [the agency’s].’’ Fla. Mun. Power Agency v. FERC,

315 F.3d 362, 368 (D.C. Cir.), cert. denied, 124 S. Ct. 386

(2003). We ‘‘must accept the ALJ’s credibility determinations

TTT unless they are patently unsupportable.’’ Tasty Baking

Co. v. NLRB, 254 F.3d 114, 124 (D.C. Cir. 2001).

We begin with AJP’s primary challenge—that the ALJ

erred in finding that the company willfully violated 29 C.F.R.

§ 1926.451(g)(1)(vii)’s requirement that employers use guard-

rails or personal fall-protection equipment to protect employ-

ees on outrigger scaffolds. Repeating arguments soundly

rejected by the ALJ and urging us to re-weigh evidence and

to substitute our judgment for the ALJ’s, AJP contends both

that it lacked the level of knowledge required for the violation

and that the ALJ had no basis for finding that the violation

was willful. Applying our deferential standard of review, we

have little trouble concluding that substantial evidence in the

record supports the ALJ’s findings on both issues.

In finding that AJP had the requisite knowledge, the ALJ

relied largely on the testimony of general contractor employ-

ee Keith Healy that he had repeatedly informed AJP both

verbally and through written safety memoranda that the

company’s employees were working on platforms without

adequate fall protection. AJP Constr., 19 O.S.H. Cas. (BNA)

2204, 2003 WL 145418, at *12. AJP does not challenge

Healy’s testimony that he warned the company about safety

violations. Instead, the company argues that it lacked actual

knowledge that the employees working on the outrigger

scaffold were wearing insufficient fall protection at the time

of the accident that caused Sherengo’s death. In support,

AJP points to testimony by its own employees that the men

working on the scaffold had been provided with fall-protection

equipment, that they had been instructed to use it, and that,

except for the day of the fatal accident, they had always

followed those instructions.

AJP’s argument suffers from several flaws. To begin with,

even if the company lacked actual knowledge of the unlawful

6

condition, Healy’s testimony is more than sufficient to sup-

port a finding that AJP could have known of the unlawful

condition through the exercise of reasonable diligence—all

the Act requires. See Am. Wrecking Corp., 351 F.3d at 1261.

Moreover, the ALJ expressly credited Healy’s testimony and

safety memos over evidence that AJP’s employees usually

wore fall protection, relying on Healy’s ‘‘opportunity and

capacity to observe, the consistency of his testimony, his lack

of bias, and the overall reasonableness of his testimony.’’

AJP Constr., 19 O.S.H. Cas. (BNA) 2204, 2003 WL 145418, at

*12. Reinforcing the ALJ’s finding that the company had the

requisite knowledge, the OSHA inspector testified that the

two surviving employees told him that when they questioned

their foreman about using fall-protection equipment on the

outrigger scaffold, the foreman warned them simply not to

‘‘go out too far’’ and to ‘‘[b]e careful.’’ See Tr. 214 (6/25/2002),

reprinted in App. 87. The ALJ found the inspector more

credible than AJP’s witnesses, relying on the inspector’s

demeanor, his capacity to observe, and the fact that ‘‘his

observations and conclusions were consistent with the other

evidence in the record.’’ AJP Constr., 19 O.S.H. Cas. (BNA)

2204, 2003 WL 145418, at *2 n.4. AJP offers no basis for

questioning the ALJ’s well-supported credibility determina-

tions, particularly given the high level of deference to which

they are entitled. See, e.g., Tasty Baking, 254 F.3d at 124.

With respect to the willfulness finding, our case law estab-

lishes that ‘‘a willful violation of the Act constitutes an act

done voluntarily with either an intentional disregard of, or

plain indifference to, the Act’s requirements.’’ A.J. McNulty

& Co. v. Sec’y of Labor, 283 F.3d 328, 337-38 (D.C. Cir. 2002)

(quoting cases) (internal quotation marks omitted). In find-

ing AJP plainly indifferent to OSHA’s fall-protection require-

ments, the ALJ relied on the company’s disregard of Healy’s

warnings, its failure to make any effort to address the safety

problems, and OSHA’s issuance of fall-protection citations

against AJP-related enterprises in the past. See AJP

Constr., 19 O.S.H. Cas. (BNA) 2204, 2003 WL 145418, at *13.

Challenging the ALJ’s conclusion, AJP again observes that

the record contains no evidence that the company had actual

7

knowledge of the unlawful condition. Neither of the two

cases on which AJP relies, however, indicates that direct

proof is required to find willfulness. Both cases make clear

that to sustain a willful violation, ‘‘[t]he Secretary must show

that the employer was actually aware, at the time of the

violative act, that the act was unlawful, or that it possessed a

state of mind such that if it were informed of the standard, it

would not care.’’ Sec’y of Labor v. Propellex Corp., 18 O.S.H.

Cas. (BNA) 1677, 1684 (1999), available at 1999 WL 183564,

at *8 (emphasis added); see also Sec’y of Labor v. Midwest

Generation, LLC, 19 O.S.H. Cas. (BNA) 1520 (2001), avail-

able at 2001 WL 799559, at *11. As the First Circuit has

explained ‘‘an act may be ‘willful’ if the offender shows

‘indifference’ to the rules; he need not be consciously aware

that the conduct is forbidden at the time he performs it, but

his state of mind must be such that, if he were informed of

the rule, he would not care.’’ Brock v. Morello Bros. Constr.,

Inc., 809 F.2d 161, 164 (1st Cir. 1987).

The Commission has found willfulness ‘‘where an employer

has been previously cited for violations of the standards in

question, is aware of the requirements of the standards, and

is on notice that violative conditions exist.’’ Propellex Corp.,

18 O.S.H. Cas. (BNA) at 1684, 1999 WL 183564, at *8. The

unrefuted evidence in this case tracks that standard precisely.

The ALJ found that AJP knew of the fall-protection require-

ments from previous OSHA citations and that Healy’s safety

memos put AJP on notice of the fall-protection deficiencies at

the work site. Moreover, six previous OSHA compliance

inspections had reported rampant fall-protection violations at

the site. This evidence amply supports the ALJ’s finding

that AJP possessed the state of mind necessary for a willful

violation.

AJP also challenges the willfulness finding on the ground

that the ALJ erred in concluding that the company had failed

to address fall-protection deficiencies at the site. In support,

the company again relies on testimony that employees work-

ing on the outrigger scaffold usually wore fall protection. As

we noted above, however, the ALJ discredited that testimony.

AJP also points to its fall-protection plan, evidence of fall-

8

protection discussions at safety meetings, and the OSHA

inspector’s initial report, which noted that AJP was planning

to adopt an extensive fall-protection plan. According to AJP,

such evidence establishes that the company had stringent fall-

protection measures in place and belies the ALJ’s plain

indifference finding. We disagree.

Read in its entirety, the record easily supports the ALJ’s

conclusion that, far from adopting stringent fall-protection

measures, AJP’s efforts were incomplete, ineffective, and

unenforced. As to the fall-protection plan, the ALJ found—

and AJP does not dispute—that the four-page handwritten

plan was prepared months after work had started, was dis-

seminated to neither supervisors nor workers, made no men-

tion of OSHA requirements, and did not even address work

performed on scaffolds. Other than a fifteen-minute talk to

the carpenters, the record contains no evidence of any discus-

sion of fall protection, and AJP points to no instance in which

it actually enforced fall-protection requirements. Indeed,

even AJP foremen charged with fall-protection training and

enforcement were seen violating OSHA standards. See Nat’l

Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1267 n.38

(D.C. Cir. 1973) (‘‘[T]he fact that a foreman would feel free to

breach a company safety policy is strong evidence that imple-

mentation of the policy was lax.’’). Corroborating this evi-

dence, an OSHA video of the AJP work site shows employees

working on scaffolds without fall-protection equipment. Fi-

nally, although it is true that the OSHA inspector initially

reported that AJP was attempting to establish an effective

fall-protection plan, nothing in the record suggests that the

company ever implemented any adequate safety measures.

The sufficiency of the evidence in this case becomes plain

by contrasting it with our recent decision in American Wreck-

ing. Reversing a willfulness finding, we concluded there that

the ALJ had not only failed to make a coherent credibility

determination and ignored contrary evidence, but also found

that the cited employer possessed a willful state of mind

because the unsafe condition was ‘‘so obvious’’ that the em-

ployer should have known of the hazard. 351 F.3d at 1264.

As we explained, the ALJ in American Wrecking ignored the

9

well-established distinction between willful and lesser viola-

tions: although constructive knowledge or mere negligence

suffices for a non-willful violation, willfulness requires con-

scious disregard or plain indifference to the Act’s require-

ments. Id. at 1264-65. In contrast to American Wrecking,

the ALJ here found that AJP possessed a willful state of

mind not because the company should have known of the fall-

protection hazards, but because prior citations and warnings

coupled with AJP’s failure to act demonstrated that it was

aware of the unsafe conditions and yet chose not to correct

them. Indeed, our cases clearly hold that evidence of an

employer’s failure to take corrective measures despite prior

warnings and citations for similar violations provides a suffi-

cient basis for sustaining a willfulness finding. See A.J.

McNulty, 283 F.3d at 338; Donovan v. Williams Enters. Inc.,

744 F.2d 170, 179 (D.C. Cir. 1984).

III

This brings us to AJP’s claim that OSHA provided constitu-

tionally inadequate notice that the fall-protection regulations

applied to its outrigger scaffold. Although we defer to agen-

cies’ reasonable interpretations of their own regulations, ‘‘the

due process clause prevents that deference from validating

the application of a regulation that fails to give fair warning

of the conduct it prohibits or requires.’’ Gates & Fox Co. v.

OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986). As we explained

in General Electric:

In such cases, we must ask whether the regulated

party received, or should have received, notice of the

agency’s interpretation in the most obvious way of

all: by reading the regulations. If, by reviewing the

regulations and other public statements issued by

the agency, a regulated party acting in good faith

would be able to identify, with ascertainable certain-

ty, the standards with which the agency expects

parties to conform, then the agency has fairly noti-

fied a petitioner of the agency’s interpretation.

10

53 F.3d at 1329 (citation and internal quotation marks omit-

ted).

AJP argues that the scaffolding regulations are ‘‘broad and

exceedingly vague,’’ and that as a result it had no notice that

its work platform would be considered an outrigger scaffold.

OSHA regulations define a ‘‘scaffold’’ as ‘‘any temporary

elevated platform (supported or suspended) and its support-

ing structure (including points of anchorage), used for sup-

porting employees or materials or both.’’ 29 C.F.R.

§ 1926.450(b). As noted earlier, an ‘‘outrigger scaffold’’ is ‘‘a

supported scaffold consisting of a platform resting on outrig-

ger beams (thrustouts) projecting beyond the wall or face of

the building or structure, the inboard ends of which are

secured inside the building or structure.’’ Id. The regula-

tions even include an illustration of an outrigger scaffold

‘‘intended to provide visual guidance to assist the user in

complying with the requirements.’’ Id. pt. 1926, subpt. L,

app. E (2003).

Given the specificity of the outrigger definition and the

clarity of the illustration, AJP’s claim that it had no way of

knowing that its work platform would qualify as an outrigger

scaffold is utterly unconvincing. Although it is true, as AJP

points out, that OSHA’s scaffolding standard describes more

than twenty-six different types of scaffolds, AJP never ex-

plains why it could not have known that the platform at issue

fit the definition of an outrigger scaffold simply by ‘‘reading

the regulations.’’ Gen. Elec., 53 F.3d at 1329. At oral

argument, moreover, AJP’s counsel conceded that the plat-

form matched the illustration attached to the regulations.

AJP also claims that the scaffolding regulations are imper-

missibly vague because they could apply to temporary work

decks that the company erects on each floor in order to pour

concrete. Perhaps so, but OSHA did not sanction AJP for

violations on its work decks. It sanctioned the company for

safety violations on its outrigger scaffold, to which the regula-

tion clearly applies. Even if the definitions could be viewed

as overly broad, that would not support AJP’s baseless argu-

ment that they failed to provide fair notice with respect to the

11

platform at issue in this case. Cf. Robinson v. Cheney, 876

F.2d 152, 163 (D.C. Cir. 1989) (‘‘One to whose conduct a

statute clearly applies may not successfully challenge it for

vagueness.’’ (quoting Parker v. Levy, 417 U.S. 733, 756 (1974))

(internal quotation marks omitted)).

IV

Having thoroughly reviewed the record, we find each of the

ALJ’s other findings well supported by substantial evidence

in the record as a whole. The petition for review is denied.

So ordered.