R.P. Carbone Const. Co. v. Occupational Safety & Health Review Com'n

• Decision Date: 16 November 1998
• Docket Number: No. 97-3427,97-3427
• Citation: 166 F.3d 815
• Parties: 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.
• Court: U.S. Court of Appeals — Sixth Circuit

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.

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 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 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 Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(a)). Under this standard, the court must consider whether there has been a clear error in judgment. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). The ALJ's factual determinations must be affirmed if they are supported by substantial evidence on the record considered as a whole. See id. (citing the APA, 5 U.S.C. § 706). Substantial evidence is more than a scintilla, but less than a preponderance, of the evidence. It is such relevant evidence as a reasonable mind might accept as adequate to support the conclusion reached. National Labor Relations Board v. Taylor Machine Products, Inc., 136 F.3d 507, 514 (6th Cir.1998).

An employer is liable for violating an OSHA safety standard if the Secretary of Labor can show the following by a preponderance of the evidence: (1) the standard applies to the cited conditions, (2) the requirements of the standard were not met, (3) employees had access to the hazardous condition, and (4) the employer knew or should have known of the hazardous condition with the exercise of reasonable diligence. See Carlisle Equipment Co. v. Secretary of Labor, 24 F.3d 790, 792 (6th Cir.1994); 29 U.S.C. § 654(a)(2) ("Each employer ... shall comply with occupational safety and health standards promulgated under this chapter.").

B. RPC's Liability as a General Contractor

The safety requirement allegedly violated, 29 C.F.R. § 1926.105(a), provides as follows:

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground ... or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

The Commission has held that when the other listed protective devices are used, a safety net is not required. RGM Construction Co., 17 BNA OSHC 1229 (No. 91-2107, 1995), 1995 WL 242609, * 2 (O.S.H.R.C.).

The only issue on appeal is whether RPC should have detected the violation through reasonable diligence. There is a presumption that a general contractor has sufficient control over its subcontractors to require them to comply with safety standards. Secretary of Labor v. Gil Haugan, 1979 WL 8537, * 2 (O.S.H.R.C.). Thus, a general contractor is liable for violations it should reasonably have detected and abated, even when its own workers were not exposed to the violations. Secretary of Labor v. Knutson Construction Co., 1976 WL 6122, * 3 (O.S.H.R.C.).

The ALJ made two key findings to support his conclusion that RPC could have and should have apprised itself of the violation through reasonable diligence: (1) that the workers failed to use the required safety equipment for two weeks, and (2) that the violations occurred in plain view. RPC argues that the ALJ's conclusion is not supported by substantial evidence.

1. Length of Time of Violation

There is substantial evidence to support the ALJ's conclusion that the workers operated without tying-off their safety belts for two weeks (July 10, 1996 through July 24, 1996). The ALJ relied on hearsay testimony offered by the inspector to the effect that the workers said they were unaware that they were required to be tied-off when doing bridging work, and that they were doing such work for two weeks. RPC maintains, without any supporting evidence, that the violation lasted for no more than fifteen minutes.

RPC cites Secretary of Labor v. Novak and Company, 11 BNA OSHC 1783 (No. 80-2946-s, 1984), 1984 WL 34796, at * 2 (O.S.H.R.C.), for the proposition that hearsay testimony is inadmissible to establish knowledge that the employees were not using fall protection. In Novak, however, the Commission simply chose to rely on direct testimony rather than less reliable and conflicting hearsay evidence. In fact, relevant and material hearsay may constitute substantial evidence. See Bobo v. United States Dept. of Agriculture, 52...