P. Gioioso & Sons, Inc. v. Occupational Safety & Health Review Comm'n

• Citation: 675 F.3d 66,2012 O.S.H.D. (CCH) P 33201
• Decision Date: 28 March 2012
• Docket Number: No. 10–2418.,10–2418.
• Parties: P. GIOIOSO & SONS, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; Hilda L. Solís, Secretary of Labor, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

2012 O.S.H.D. (CCH) P 33,201

675 F.3d 66

P. GIOIOSO & SONS, INC., Petitioner,

v.OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; Hilda L. Solís, Secretary of Labor, Respondents.

No. 10–2418.

United States Court of Appeals, First Circuit.

Heard Sept. 8, 2011.Decided March 28, 2012.

Matthew Watsky, for petitioner.

Scott Glabman, Senior Appellate Attorney, U.S. Department of Labor, with whom M. Patricia Smith, Solicitor of Labor, Joseph M. Woodward, Associate Solicitor for Occupational Safety and Health, and Heather R. Phillips, Counsel for Appellate Litigation, was on brief for respondents.

Before LYNCH, Chief Judge, TORRUELLA and THOMPSON, Circuit Judges.

TORRUELLA, Circuit Judge.

The Occupational Safety and Health Administration (“OSHA”) fined Petitioner P. Gioioso & Sons, Inc. (“Gioioso”) $33,700 for violations of safety regulations relating to the excavation of a trench. Gioioso contested the fine at a hearing before an administrative law judge (“ALJ”), who confirmed the fine. Gioioso requested review by the Respondent, the Occupational Safety and Health Review Commission (“OSHRC”), which upheld the ALJ's decision. Gioioso now petitions this Court for review of OSHRC's order. Finding no error, we deny the petition for review.

I. Facts and Procedural History

A. Regulatory Scheme Regarding Trenches

We first lay the relevant regulatory foundation. Federal safety regulations require that any excavation at least five feet deep in potentially unstable soil be “protected” from cave-ins using approved protective measures such as shoring or trench boxes. See 29 C.F.R. § 1926.652(a)(1) (the “cave-in provision”). In addition, any trench with a depth of four feet or more must have a ladder or other safe means of egress positioned within twenty-five feet of where employees in the trench are working. See id. § 1926.651(c)(2) (the “ladder provision”). All excavations, protective systems, and adjacent areas must be inspected by a “competent person” before the start of work and as needed throughout a shift. Id. § 1926.651(k)(1) (the “inspection provision”). A “competent person” is defined as one “who is capable of identifying existing and predictable hazards” and who has the authority to eliminate them. Id. § 1926.650(b).

B. Safety Violations at the Work Site

We now dig into the evidence presented before the ALJ. Gioioso is a public works contractor that constructs and installs water supply and sewer pipes. As part of its work, Gioioso performs excavations to remove and replace old utility pipes. On July 10, 2009, Gioioso's employees were performing trenching work to install water service lines at a site in Boston, Massachusetts.

An OSHA compliance officer, Sean Henrikson (“Henrikson”), was assigned to inspect the Gioioso work site. That morning, while walking to work, Henrikson observed employees in a trench at the site. Henrikson reported this to his supervisor, who ordered him to inspect the site. When Henrikson returned around noon to perform the inspection, he saw a Gioioso employee climbing out of an unprotected trench that appeared to be roughly six feet deep. Later that day, around 1:00 P.M., from roughly fifty yards away, Henrikson observed a Gioioso employee, later identified as Robert Bruni (“Bruni”), climb out of the east end of a second trench located near the first trench. Henrikson walked to the second trench and observed equipment operator Gregory Perreira (“Perreira”) standing next to the trench and foreman José Ourique (“Ourique”) digging with a shovel in the east end of the trench. Henrikson observed that the trench was unprotected and that it rose to the top of Ourique's head. Henrikson identified himself and instructed Ourique to exit the trench. Ourique did so by climbing over what Henrikson identified as a box containing electrical wiring.¹

The site superintendent, Joseph Zenga (“Zenga”), arrived at the scene roughly five minutes later. According to Henrikson, Zenga told him that he had not inspected the trench or measured it before any employees entered it. Henrikson spoke with Ourique, who, according to Henrikson, said that he was not the “competent person” at the site and that he had not measured the trench. Henrikson also spoke with Perreira, who said that Zenga came by the trench six to eight times per day, roughly once every twenty to thirty minutes. Furthermore, Perreira told Henrikson that Zenga had been by the trench earlier in the day while Ourique was in it, but that Zenga did not say anything to Ourique or to anyone else regarding trench protection.

Henrikson then measured the trench to be roughly 20 feet long and 68 inches deep at the east end, the deepest end. The trench was 51 inches wide. There was a trench box at the site, but it would not have fit into the trench due to the presence of utility lines. Henrikson also observed that there were no shoring materials at the site.

C. Procedural History

Based on his observations of the site on July 10, 2009, Henrikson recommended that OSHA issue citations to Gioioso. OSHA cited Gioioso for violation of the “cave-in provision,” 29 C.F.R. § 1926.652(a)(1), due to the lack of protection in the trench. Furthermore, because OSHA had previously cited Gioioso for violations of this provision, this citation was designated a “Repeat Citation.” OSHA also issued “Serious Citations” for violations of the “ladder provision,” id. § 1926.651(c)(2), and the “inspection provision,” id. § 1926.651(k)(1). Gioioso contested the citations and the proposed penalties. The parties appeared at a hearing before the ALJ on June 2, 2010.

The citations initially erroneously stated that three employees were in the trench; the parties later stipulated that Ourique was in the trench, and OSHA notified Gioioso prior to the hearing that it would try to prove that a second employee was exposed to the cited hazards. At the hearing, both Perreira and Ourique testified that Bruni had not been in the deep end of the trench, as Henrikson claimed, but rather in the shallow end. Ourique testified that he was the competent person at the site, contradicting Henrikson's claim that Ourique had told him he was not the competent person. Perreira testified that he “may have” told Henrikson that Zenga, the superintendent, came by the site every twenty to thirty minutes, but that if he had, this was not true. The ALJ determined based on their answers and their demeanor that neither Ourique nor Perreira were reliable witnesses, and thus chose to credit Henrikson's testimony over theirs.

Gioioso did not dispute that Ourique was in the deep end of the trench when Henrikson observed him. However, Gioioso argued that it should not be held liable because Ourique's conduct was the result of unpreventable employee misconduct (“UEM”). To prove a UEM defense, an employer must show that it: “(1) established a work rule to prevent the reckless behavior and/or unsafe condition from occurring, (2) adequately communicated the rule to its employees, (3) took steps to discover incidents of noncompliance, and (4) effectively enforced the rule whenever employees transgressed it.” P. Gioioso & Sons, Inc. v. Occupational Safety & Health Review Comm'n, 115 F.3d 100, 109 (1st Cir.1997) (“ Gioioso I ”). Gioioso presented evidence on all four of these factors, but the ALJ found Gioioso's evidence to be insufficient to sustain the UEM defense.

First, Gioioso presented evidence—specifically, a single-page document listing excavation procedures—to show that it had established work rules to prevent the cited violations. However, the ALJ found that the fact that two employees were digging in an unprotected trench, including a foreman (Ourique), suggested that Gioioso's rules were not effective.

Second, Gioioso presented evidence that it had communicated its rules to its employees. Gioioso's Safety Director, John Condlin (“Condlin”), testified that Gioioso conducts “tool box talks” at work sites and conducts safety meetings in the office for foremen and supervisors. Condlin testified that Ourique attended a safety meeting on June 4, 2009, and a tool box talk on July 2, 2009, at which trenching safety was discussed. Gioioso also introduced into evidence documents showing the agendas for those two events and that Ourique attended them. However, the ALJ noted that despite attending these meetings, Ourique did not follow Gioioso's safety rules on July 10, 2009. The ALJ also faulted Gioioso for not presenting documentation regarding other safety meetings and tool box talks where trench safety had been discussed.

Third, Gioioso presented evidence to show that it took steps to discover noncompliance. Condlin testified that he visited work sites, sometimes unannounced, to make sure that the work crews complied with safety regulations; Condlin also testified that representatives of Gioioso's insurers sometimes conducted inspections. However, the ALJ pointed out that Zenga, the site superintendent, had observed Ourique in the trench but had never said anything to him or to anyone else about trench protection. The ALJ also noted that Gioioso did not present any documentary evidence of the site visits about which Condlin testified.

Finally, Condlin testified that Ourique had been disciplined for being in the trench without protection. He also testified about other instances in which Gioioso had disciplined employees for safety violations or had stopped work until safety measures could be implemented. However, the ALJ again emphasized that at least three safety violations occurred at the Gioioso site on July 10, 2009. The ALJ also pointed to Condlin's concession that Zenga had not been disciplined for the July 10, 2009 incident or for another incident involving an unprotected trench that occurred on April 24, 2009. The ALJ further noted that Gioioso had failed to present documentation regarding any disciplinary actions it had taken in the previous two years.

Based on the above-mentioned testimony and evidence, the...