R.P. Carbone Const. Co. v. Occupational Safety & Health Review Com'n, No. 97-3427

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtGILMAN
Citation166 F.3d 815
Docket NumberNo. 97-3427
Decision Date16 November 1998
Parties18 O.S.H. Cas. (BNA) 1551, 1999 O.S.H.D. (CCH) P 31,743 R.P. CARBONE CONSTRUCTION COMPANY, Petitioner, v. The OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION; Alexis M. Herman, United States Secretary of Labor, Respondents.

Page 815

166 F.3d 815
18 O.S.H. Cas. (BNA) 1551, 1999 O.S.H.D. (CCH)
P 31,743
R.P. CARBONE CONSTRUCTION COMPANY, Petitioner,
v.
The OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION; Alexis
M. Herman, United States Secretary of Labor, Respondents.
No. 97-3427.
United States Court of Appeals,
Sixth Circuit.
Argued June 9, 1998.
Decided Nov. 16, 1998. *
Ordered Published Feb. 1, 1999.

Page 816

Keith A. Ashmus (argued and briefed), Heather L. Areklett (briefed), Thompson, Hine & Flory, Cleveland, Ohio, for Petitioner.

Ann Rosenthal (briefed), John Shortall (argued and briefed), U.S. Department of Labor, Office of the Solicitor, Washington, DC, for Respondents.

Ray Darling, Secretary, Washington, D.C., for The Occupational Safety & Health Review Commission.

Before: BATCHELDER, DAUGHTREY, and GILMAN, Circuit Judges.

OPINION

GILMAN, Circuit Judge.

This is an appeal from an Administrative Law Judge's ruling affirming the issuance of

Page 817

a $1,500 citation against R.P. Carbone Construction Co. ("RPC"), a general contractor. The citation was issued by the Secretary of Labor under the Occupational Safety and Health Act of 1970 ("the Act"), 29 U.S.C. § 651-678 (1994), charging that RPC failed to comply with worker-safety requirements. Because the ALJ's ruling is supported by substantial evidence and is not arbitrary or capricious, we AFFIRM.

I. BACKGROUND

RPC was hired to construct the Luke Easter Recreation Center for use as an indoor skating rink, basketball facility, and jogging track in Cleveland, Ohio. Construction of the facility began in May of 1995. RPC hired CommSteel, a subcontractor, to perform the steel erection work. The subcontract required CommSteel to furnish all labor, materials, equipment, and work supervision necessary to complete the work, and to comply with all safety measures and applicable laws, rules, and regulations, including standards of the Occupational Health and Safety Administration ("OSHA").

On July 24, 1996, an OSHA inspector examined the RPC site in response to a safety-violation complaint. He observed two CommSteel ironworkers installing bridging and small pieces of steel without having hooked their safety belts into safety lines, and without using nets, catch platforms, or any other fall-protection equipment, as is required by the Act for workers operating more than 25 feet above the ground. The two CommSteel workers were positioned near the highest part of the structure, approximately 42 feet above the ground. Other workers also operated without fall-protection, but were working at heights lower than 25 feet above the ground. The inspector testified that he spoke with the two CommSteel workers, who said that they had been installing bridging, connecting beams, and moving around the structure for two weeks. Both the workers and CommSteel's safety manager told the inspector that they were under the impression that these activities were exempt from the Act's fall-protection requirements.

RPC's sole employee at the site was Rosario Carbone, the Project Superintendent. He had held this position for fifteen years, coordinating subcontractors, labor, and materials. Because he was unfamiliar with fall-protection procedures and the OSHA regulations for steel erection, he relied on CommSteel to comply with such requirements. Although he looked at the minutes from CommSteel's weekly safety meetings, he never actually read CommSteel's safety program. Further, he remained in his trailer for most of the workday. He walked around the site once or twice daily to make sure that the vertical rebars were capped, that there were no tripping or fire hazards, and that all ladders were stable. Each walk lasted from five minutes to one hour. Rosario Carbone also spoke with CommSteel's safety director, Bruce Demarco, who assured him that CommSteel had a fall-protection program requiring use of the proper safety equipment. He testified that he never saw workers without fall-safety protection.

Carmen Carbone, RPC's project manager, visited the site once a week for the purpose of overseeing the manpower, equipment, safety operations, and yard operations of the project. Carmen Carbone testified that he had seen workers using fall-protection equipment. He stated that he assumed CommSteel had a safety program because such was mentioned in the minutes from CommSteel's safety meetings.

Based on the OSHA inspector's findings, the Secretary of Labor issued a $1,500 penalty on the ground that RPC had not complied with the OSHA safety requirements outlined in 29 C.F.R. § 1926.105(a). The ALJ affirmed the citation and penalty, holding RPC liable as a general contractor because it could have reasonably detected and corrected the violation. The ALJ relied on the inspector's testimony and the fact that CommSteel's safety program did not require its workers to "tie-off" at all times when more than 25 feet above the ground. The ALJ also explained that the inspector's hearsay testimony of what he was told by CommSteel workers was not contradicted by Rosario Carbone's testimony that he had never seen any fall-protection violations. The ALJ explained: "The

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record fails to show that [RPC] apprised itself of [CommSteel's] fall-protection program; if [RPC] had done so, it would have discovered that [CommSteel] was not intending to use fall protection while engaged in the activities later observed during the inspection."

RPC petitioned for review of the ALJ's report by the full Occupational Safety and Health Review Commission ("the Commission"). Because no member of the Commission requested review within thirty days, the ALJ's report became final on March 4, 1997. RPC now claims that the ALJ's decision is not supported by substantial evidence and is arbitrary and capricious.

II. ANALYSIS

A. Standard of Review

The ALJ's determination may be set aside if arbitrary, capricious, an abuse of discretion, or contrary to law. National Engineering & Contracting Co. v. Occupational Safety & Health Admin., 928 F.2d 762, 767 (6th Cir.1991) (citing the...

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22 practice notes
  • Railroad Ventures, Inc. v. Surface Transp. Bd., No. 00-3261.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 1, 2002
    ...mind might accept as adequate to support the conclusion reached." R.P. Carbone Constr. Co. v. Occupational Safety & Health Review Comm'n, 166 F.3d 815, 818 (6th B. Analysis 1. The STB had jurisdiction to approve the sale of the rail line On appeal, RVI first contends that the STB lacked jur......
  • Solis v. Summit Contractors, Inc., No. 07-2191.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 26, 2009
    ...v. OSHRC, 182 F.3d 726, 728 (10th Cir.1999) (challenging the controlling employer citation policy); R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815, 821 (6th Cir.1998) (same); IBP, Inc. v. Herman, 144 F.3d 861, 865 (D.C.Cir.1998) (same); Knutson, 566 F.2d at 599 (same); Pitt-Des Moines, 168......
  • Commissioner of Labor v. Weekley Homes, No. COA03-1634.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • March 15, 2005
    ...have expressed approval of the multi-employer worksite doctrine. See Pitt-Des Moines, Inc., 168 F.3d at 984-985; R.P. Carbone v. OSHRC, 166 F.3d 815, 818 (6th Cir.1998); Beatty Equipment Leasing v. Secretary of Labor, 577 F.2d 534, 537 (9th Cir.1978); Marshall v. Knutson Const. Co., 566 F.2......
  • Dowling v. Bangor Housing Authority
    • United States
    • Supreme Judicial Court of Maine (US)
    • November 28, 2006
    ...reliability highlighted in Perales as multi-factor analyses. See R.P. Carbone Constr. Co. v. Occupational Safety & Health Review Comm'n, 166 F.3d 815, 819 (6th Cir. 1998); Keller v. Sullivan, 928 F.2d 227, 230 (7th Cir.1991); Johnson v. United States, 628 F.2d 187, 190-91 (D.C.Cir.1980); Ca......
  • Request a trial to view additional results
21 cases
  • Railroad Ventures, Inc. v. Surface Transp. Bd., No. 00-3261.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 1, 2002
    ...mind might accept as adequate to support the conclusion reached." R.P. Carbone Constr. Co. v. Occupational Safety & Health Review Comm'n, 166 F.3d 815, 818 (6th B. Analysis 1. The STB had jurisdiction to approve the sale of the rail line On appeal, RVI first contends that the STB lacked jur......
  • Solis v. Summit Contractors, Inc., No. 07-2191.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 26, 2009
    ...v. OSHRC, 182 F.3d 726, 728 (10th Cir.1999) (challenging the controlling employer citation policy); R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815, 821 (6th Cir.1998) (same); IBP, Inc. v. Herman, 144 F.3d 861, 865 (D.C.Cir.1998) (same); Knutson, 566 F.2d at 599 (same); Pitt-Des Moines, 168......
  • Commissioner of Labor v. Weekley Homes, No. COA03-1634.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • March 15, 2005
    ...have expressed approval of the multi-employer worksite doctrine. See Pitt-Des Moines, Inc., 168 F.3d at 984-985; R.P. Carbone v. OSHRC, 166 F.3d 815, 818 (6th Cir.1998); Beatty Equipment Leasing v. Secretary of Labor, 577 F.2d 534, 537 (9th Cir.1978); Marshall v. Knutson Const. Co., 566 F.2......
  • Dowling v. Bangor Housing Authority
    • United States
    • Supreme Judicial Court of Maine (US)
    • November 28, 2006
    ...reliability highlighted in Perales as multi-factor analyses. See R.P. Carbone Constr. Co. v. Occupational Safety & Health Review Comm'n, 166 F.3d 815, 819 (6th Cir. 1998); Keller v. Sullivan, 928 F.2d 227, 230 (7th Cir.1991); Johnson v. United States, 628 F.2d 187, 190-91 (D.C.Cir.1980); Ca......
  • Request a trial to view additional results

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