305 F.3d 43 (1st Cir. 2002), 01-2635, Modern Continental Constr. Co. Inc v. Occupational Safety and Health Review Com'n.

Docket Nº:01-2635.
Citation:305 F.3d 43
Party Name:MODERN CONTINENTAL CONSTRUCTION COMPANY, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Elaine L. Chao, United States Secretary Of Labor, Respondents.
Case Date:September 30, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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305 F.3d 43 (1st Cir. 2002)



OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Elaine L. Chao, United States Secretary Of Labor, Respondents.

No. 01-2635.

United States Court of Appeals, First Circuit

September 30, 2002

Heard June 10, 2002.

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Richard D. Wayne, with whom Debra Dyleski-Najjar and Hinckley, Allen & Snyder LLP was on brief, for petitioner.

John Shortall, Attorney, with whom Eugene Scalia, Solicitor of Labor, Joseph M. Woodward, Associate Solicitor for Occupational Safety and Health, and Ann S. Rosenthal, Counsel for Appellate Litigation, was on brief, for respondents.

Before TORRUELLA and LIPEZ, Circuit Judges, and SCHWARZER,[*] Senior District Judge.

TORRUELLA, Circuit Judge.

This is a case arising under the Occupational Safety and Health Act of 1970 ("OSH Act" or the "Act"), 29 U.S.C. §§ 651-678. Petitioner Modern Continental Construction, Inc. ("MCC") seeks review of a final decision by the Occupational Safety and Health Review Commission (the "Commission"), which affirmed the citations issued against MCC under the OSH Act by the Secretary of Labor. Finding that the citations are supported by substantial evidence in the administrative record, we deny MCC's petition for review and affirm the Commission's order.


MCC is a general contractor at a work site associated with the "Big Dig," a massive construction project that will submerge a section of interstate highway below the streets of Boston. The events in question took place in an underground room—approximately forty feet long, twenty to thirty feet wide, and twenty feet deep—built to provide ventilation to highway tunnels. On Saturday, July 22, 2000, MCC employees, under the direction of general foreman Pasquale Pezzano ("Pezzano"), engaged in the dangerous, but not uncommon, task of hoisting shoring materials from this underground room. The hoisting required employees in the underground room to manually secure, or "rig," loads of shoring materials to a crane for withdrawal through a small rectangular opening at the surface.

Generally, loads are rigged in a horizontal fashion. This manner promotes balance and increases safety. However, on this particular day, at least one load could not be rigged horizontally because its width exceeded that of the opening at the surface. Instead, this load was rigged vertically, a dangerous and awkward method.

In addition to the difficulty inherent in hoisting an unstable vertical load, the access hole itself presented a problem. According to Pezzano and Anthony Cappuccio ("Cappuccio"), another MCC foreman working that day, the surface hole was the smallest from which they had ever removed shoring. Despite the fact that hoisting a load vertically through a small opening requires a great degree of skill and presents an increased element of danger, MCC provided no formal training to

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its employees on securing a load for vertical hoisting. Nor was training provided for alternative rigging methods, such as rigging the load diagonally or removing each piece of shoring by hand.

The vertical load in question was initially rigged by MCC employee Natalio Elias ("Elias"), an inexperienced worker with limited English proficiency. On his first attempt, Elias used only a single strap to secure a load of about twenty cross-braces. Though it was inadequately secured, Foreman Cappuccio was given the signal to raise the one-hundred-pound bundle. From the surface, Cappuccio noticed that the strap was slipping as the load was being raised, so he signaled for it to be lowered. Cappuccio explained to Elias that he either needed to double-wrap the cross-braces or use an additional strap. No other instructions concerning the securing of the load were given. When Elias did not appear to understand Cappuccio's explanation, another employee, fluent in Elias' native Portugese, was summoned to translate.

After these efforts failed, Louis Sousa, another MCC foreman, eventually rigged the vertical bundle himself and signaled for Cappuccio to begin lifting. As the heavy load was being raised, its weight shifted, and the entire load slipped and fell back down through the access hole. One of the cross-braces struck Elias, impaling him through the head.

On July 24, 2000, two days after the accident, Compliance Officer Eric Jones, of the Occupational Safety and Health Administration ("OSHA"), began a post-accident investigation. Following the inspection, OSHA issued MCC the following citations:

1. Serious Citation 1, Item 1, alleging a violation of 29 C.F.R. § 1926.21(b)(2) because "employees were not adequately trained in rigging methods."

2. Repeat Citation 2, Item 1, alleging a violation of 29 C.F.R. § 1926.550(a)(19) for failing to assure that all employees were kept clear of suspended loads.

The Administrative Law Judge ("ALJ") affirmed both citations.1 Sec'y of Labor v. Modern Cont'l Constr. Co., 19 OSHC (BNA) 1760 (O.S.H.R.C. A.L.J. Div.2001). MCC then challenged the ALJ's decision by filing a Petition for Discretionary Review with the Commission. When no Commission Member directed the matter for review, the ALJ's decision automatically became a final order of the Commission by operation of law. See 29 U.S.C. § 661(j). MCC then filed a timely petition with this Court to review the Commission's final order.


Our review of the Commission's order is deferential. Final orders of the Commission are subject to the general judicial review provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. See P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d 100, 107-08 (1st Cir. 1997). Under those provisions, we will uphold agency determinations unless they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In making this determination, we defer to the agency's reasonable interpretation of the OSH Act and the governing regulations. See Beaver Plant Operations, Inc. v. Herman, 223 F.3d 25, 29 (1st Cir. 2000).

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The OSH Act also 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 P. Gioioso & Sons, 115 F.3d at 108. This deferential standard governs even where, as here, the Commission does not hear the case itself but instead adopts an ALJ's findings. Modern Cont'l/Obayashi v. OSHRC, 196 F.3d 274, 280 (1st Cir. 1999).

MCC disputes the Commission's adverse determination on both of the citations against it, arguing that neither is supported by substantial evidence or relevant law. MCC also challenges the propriety of the penalty assessed against it. We address each argument in turn.

A. Citation 1—Failure to Train

Congress enacted the OSH Act to reduce employment-related injury and illness. See 29 U.S.C. § 651. To that end, the Act places primary responsibility on employers—that is, those who oversee and control the work environment—to achieve compliance with its standards and ensure a safe workplace. See S.Rep. No. 91-1282, at 9 (1970), reprinted in 1970 U.S.C.C.A.N. 5177, 5186 ("Employers have primary control of the work environment and should insure that it is safe and healthful."). Thus, under the Act, an employer must "comply with occupational safety and health standards promulgated under this chapter," 29 U.S.C. § 654(a)(2), and, if no applicable standards exist, "furnish to each of his employees . . . a place of employment which [is] free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees." Id. § 654(a)(1).

For further guidance, Congress provided OSHA with authority to promulgate occupational safety and health standards by regulation. Id. § 655. Pursuant to this authority, the agency has issued two types of standards. The first, known as the "general industry standards," see 29 C.F.R. pt. 1910, act as a default set of standards. In addition, OSHA has presented various sets of standards applicable only to certain industries. The agency has promulgated a set of such industry-specific standards for the implementation of the OSH Act in the construction industry.[[2]] See 29 C.F.R. pt. 1926. These regulations are applicable to any place of employment where construction work is performed. See 29 C.F.R. § 1910.12(a).

The construction-industry standard applicable to MCC's first citation provides: "The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury." 29 C.F.R. § 1926.21(b)(2). The citation against MCC specifically charged that "employees were not adequately trained in rigging methods." "In order to establish a violation of an [OSH Act] standard, the Secretary must show: (a) the applicability of the cited standard; (b) the employer's noncompliance with the standard; (c) employee access to the violative condition; and (d) the employer's actual or constructive knowledge of the violation." Modern Cont'l/Obayashi 196 F.3d at 279. MCC challenges the Commission's order with

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respect to the failure-to-train citation on both legal and factual grounds.

MCC argues first that, as a matter of law, the citation is defective because there is no "rigging" standard established by OSHA and that improper rigging is not one of the "hazards" contemplated by § 1926.21(b)(2). According to MCC, the true hazard in this case is the danger of a falling load, a hazard that is already covered by a separate regulation and that cannot be completely eliminated by training in alternate rigging methods.

MCC interprets the protections of the...

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