Fabi Const. Co., Inc. v. Secretary of Labor

• Citation: 508 F.3d 1077
• Decision Date: 27 November 2007
• Docket Number: No. 06-1244.,06-1244.
• Parties: FABI CONSTRUCTION COMPANY, INC. and Pro Management Group, Petitioners v. SECRETARY OF LABOR, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

508 F.3d 1077

FABI CONSTRUCTION COMPANY, INC. and Pro Management Group, Petitioners v. SECRETARY OF LABOR, Respondent.

No. 06-1244.

United States Court of Appeals, District of Columbia Circuit.

Argued October 12, 2007.

Decided November 27, 2007.

On Petition for Review of an Order of the Occupational Safety and Health Administration.

Joseph P. Paranac, Jr. argued the cause and filed the briefs for petitioners.

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 Nathaniel I. Spiller, Senior Counselor. Michael P. Doyle, Attorney, entered an appearance.

Steven D. Gordon argued the cause for amici curiae Building Contractors Association of New Jersey, et al. in support of petitioners. With him on the brief were Michael A. Branca and Stephen C. Yohay.

Before: GINSBURG, Chief Judge, and SENTELLE and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge.

Petitioners, Fabi Construction, Inc. and Pro Management Group, seek review of the Occupational Safety and Health Review Commission's (Commission's) affirmance of several citations for violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, (OSH Act) and regulations promulgated under it. We deny review of the Commission's affirmance of violations of the General Duty Clause, 29 U.S.C. § 654(a)(1), and 29 C.F.R. § 1926.703(e)(1), and its treatment of Petitioners as a single entity for OSH Act purposes, as these decisions are reasonable and supported by substantial evidence. Because the Secretary of Labor's (Secretary's) interpretation of "formwork" is unreasonable and failed to provide fair notice to Petitioners, we grant the petition for review of the 29 C.F.R. § 1926.703(a)(1) violation. Accordingly, we vacate the respective citation and fine. Finally, we grant the petition for review of the $7,000 fine assessed for Petitioners' violation of § 1926.703(e)(1). We remand this fine to the Commission for lack of findings sufficient to support raising the $2,500 fine proposed by the Secretary.

I. Background

Keating Building Corporation, the general contractor for an expansion of the Tropicana Hotel and Casino in Atlantic City, New Jersey, hired Fabi Construction, Inc., and its management company, Pro Management Group, to place concrete for its Tropicana project. Fabi and Pro Management provided labor, materials, and equipment for completing the concrete work. These materials included pre-cast concrete tubs, or "Filigree slabs," which Fabi placed on site, reinforced with steel (both top steel and reinforcing longitudinal steel, or "rebar"), and filled with additional concrete to create the floors of the structure. Petitioners hired Forrest Consultants and Mid-State Filigree Systems to convert the engineer's structural drawings into "shop drawings," plans Petitioners used on-site that detailed the placement of building components such as top steel and rebar. Inspectors from Site-Blauvelt, a private company, and Atlantic City, checked the steel placement's conformity with the shop drawings before Fabi poured concrete. Because wet concrete is substantially heavier than dry concrete, it requires additional support, or "shores," while drying, or "curing." Fabi provided and constructed formwork to support the curing concrete.

On October 30, 2003, while Petitioners were pouring concrete on the eighth level of what was intended to be a ten-story parking garage, levels four through eight collapsed, killing four of Fabi's employees and injuring twenty-one others. OSHA investigated the accident and cited Fabi and Pro Management for five serious violations and one willful violation of the OSH Act. Willful violations can carry a penalty of up to $70,000, while serious violations are limited to penalties of up to $7,000. 29 U.S.C. §§ 666(a) & (b).

Fabi and Pro Management contested the citations before the Commission. In accordance with 29 U.S.C. § 661(j), the Commission appointed an Administrative Law Judge (ALJ) to hear the case. Just before the hearing, the Secretary withdrew two of the citations for serious violations. After a twelve-day hearing, the ALJ issued a Decision and Order on March 2, 2006, vacating one serious violation, one instance of a serious violation, and the "willful" classification for another violation, and affirming all other citations. In doing so, the ALJ raised the fine for one of the serious violations from $2,500 to $7,000. In addition, the ALJ held that Fabi and Pro Management are a "single entity" for OSH Act purposes. Fabi and Pro Management filed a petition for discretionary review with the Commission on April 20, 2006. The Commission declined to review the case, so the ALJ's Decision and Order became the Commission's final order on May 1, 2006. See id. § 661(j).

Fabi and Pro Management petition this Court for review of all the Commission's adverse findings. First, Petitioners challenge the Commission's finding that they violated the OSH Act's General Duty Clause, 29 U.S.C. § 654(a)(1), by failing to place top steel in accordance with shop drawings and rebar in accordance with industry practice. They allege that these findings are unsupported by substantial evidence. Second, they challenge the Commission's finding that Petitioners violated 29 C.F.R. § 1926.703(a)(1) by failing to maintain formwork so that it would be capable of supporting the imposed loads without failure. They claim that the Secretary's interpretation of "formwork" to include permanent parts of the structure is unreasonable, failed to provide fair notice as required by the Fifth Amendment's Due Process Clause, and was unsupported by substantial evidence. Third, they challenge the Commission's finding that they violated 29 C.F.R. § 1926.703(e)(1) by removing formwork without properly testing the structure's strength. Fabi and Pro Management allege that the Secretary's interpretation of "removal" of formwork to include the step when contractors engage in "cracking," or lowering supporting steel several inches to allow the structure to dry in its natural position, is unreasonable. They also allege that the Commission's assessment of a $7,000 fine when the Secretary only proposed $2,500 was arbitrary and capricious. Finally, Petitioners challenge the Commission's finding that they can be treated as a single entity for OSH Act purposes.

II. Analysis

We affirm the Commission's decisions unless they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also AJP Constr., Inc. v. Sec'y of Labor, 357 F.3d 70, 72-73 (D.C.Cir.2004). In addition, we give "substantial deference" to an agency's interpretation of its regulations, only setting it aside if the plain language of the regulation or "other indications of the [agency's] intent" require another interpretation. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994); see Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 377, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998); see also S.G. Loewendick & Sons, Inc. v. Reich, 70 F.3d 1291, 1294 (D.C.Cir.1995) (deferring to the Secretary's interpretations of the OSH Act and regulations, not the Commission's, because the Secretary is the policy-maker for OSHA). Deference to the Secretary's interpretation of her regulations may even hold when that interpretation first appears in the course of litigation. Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997).

The OSH Act requires that "findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole" be conclusive. 29 U.S.C. § 660(a); see also Fabi Constr. Co., Inc. v. Sec'y of Labor (Fabi I), 370 F.3d 29, 33 (D.C.Cir. 2004). Under the "substantial evidence" standard, this Court must uphold the Commission's findings of fact as long as there is enough evidence in the record for a reasonable mind to agree with the Commission. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951); AJP Constr., 357 F.3d at 73. In addition, we "`must accept the ALJ's credibility determinations ... unless they are patently unsupportable.'" Fabi I, 370 F.3d at 39 (quoting AJP Constr., 357 F.3d at 73).

A. General Duty Clause Violation, 29 U.S.C. § 654(a)(1)

We begin with the Commission's findings that Fabi and Pro Management violated the OSH Act's General Duty Clause in two ways: first, that Petitioners failed to place top steel in accordance with shop drawings, and second, that they failed to place rebar in accordance with industry practice. Petitioners allege that the Commission's findings are unreasonable and unsupported by substantial evidence. For the reasons set forth below, we disagree.

The General Duty Clause requires an employer to provide a working environment "free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 U.S.C. § 654(a)(1). To establish a violation of the General Duty Clause, the Secretary must establish that: (1) an activity or condition in the employer's workplace presented a hazard to an employee, (2) either the employer or the industry recognized the condition or activity as a hazard, (3) the hazard was likely to or actually caused death or serious physical harm, and (4) a feasible means to eliminate or materially reduce the hazard existed. Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Gen. Dynamics Land Sys. Div., 815 F.2d 1570, 1577 (D.C.Cir.1987). In other words, "the Secretary must prove that a reasonably prudent employer familiar with the circumstances of the industry would have protected against the hazard in the manner specified by the Secretary's citation." L.R. Willson & Sons, Inc. v. Occupational Safety & Health Rev. Comm'n, 698 F.2d...