Thomas G. Gallagher, Inc. v. Occupational Safety & Health Review Comm'n

• Citation: 877 F.3d 1
• Decision Date: 04 December 2017
• Docket Number: No. 16-2268,16-2268
• Parties: THOMAS G. GALLAGHER, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; R. Alexander Acosta, Secretary of Labor, U.S. Department of Labor, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

877 F.3d 1

THOMAS G. GALLAGHER, INC., Petitioner,

v.OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; R. Alexander Acosta, Secretary of Labor, U.S. Department of Labor,^* Respondents.

No. 16-2268

United States Court of Appeals, First Circuit.

December 4, 2017

James F. Laboe, Concord, NH, with whom Orr & Reno, P.A. was on brief, for petitioner.

Scott Glabman, Senior Appellate Attorney, U.S. Department of Labor, with whom Nick Geale, Acting Solicitor, Ann Rosenthal, Lawton, OK, Associate Solicitor for Occupational Safety and Health, and Heather R. Phillips, Counsel for Appellate Litigation, were on brief, for respondents.

Before Torruella, Kayatta, and Barron, Circuit Judges.

BARRON, Circuit Judge.

This petition for review challenges a final order of the Occupational Safety and Health Review Commission ("Commission") that affirmed a fine levied against a Massachusetts-based employer—Thomas G. Gallagher, Inc. ("Gallagher")—that had been imposed by the Occupational Safety and Health Administration ("OSHA"), for two violations of OSHA workplace health and safety standards. Gallagher contends that the Commission's order cannot be sustained. We disagree and deny the petition for review.

I.

We begin by reviewing the relevant statutory and regulatory landscape. We then lay out the undisputed facts that are relevant to the petition for review.

A.

Congress enacted the Occupational Safety and Health Act ("OSH Act") to reduce employment-related injury and illness. See 29 U.S.C. § 651 ; Modern Cont'l Constr. Co. v. Occupational Safety & Health Review Comm'n, 305 F.3d 43, 49 (1st Cir. 2002). To accomplish that end, the OSH Act authorizes the Secretary of Labor ("Secretary") to promulgate rules setting forth workplace health and safety standards. See 29 U.S.C. §§ 651(b)(3), 661, 665 ; Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 147, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (citing Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 6–7, 106 S.Ct. 286, 88 L.Ed.2d 2 (1985) (per curiam)). The Secretary has in turn delegated the exercise of that rulemaking authority to OSHA.¹

OSHA promulgates rules setting forth health and safety standards pursuant to 29 U.S.C. § 654(a)(2). Some standards, like those at issue here, are known as "general standards" or "general industry standards," because they apply to a variety of different types of industries. Others standards are known as "industry-specific standards" because they apply only to specific industries, such as, for example, the maritime or construction industry. See Modern Cont'l Constr. Co., 305 F.3d at 49 ; Reich v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 4 (1st Cir. 1993).

OSHA health and safety standards, "require[ ] conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U.S.C. § 652(8). In the event that "[OSHA] determines upon investigation that an employer is failing to comply with ... a [promulgated] standard, [OSHA] is authorized to issue a citation [pursuant to an OSHA general or industry-specific standard] and to assess the employer a monetary penalty." Martin, 499 U.S. at 147, 111 S.Ct. 1171 (citing 29 U.S.C. §§ 658 – 659, 666 ).

Employers may be cited for violations—in consequence of the existence of a dangerous condition prohibited by a general workplace safety standard—that range from ones that are "serious," 29 U.S.C. § 666(k), to ones that are "not serious," id. at § 666(c), to ones that are merely "de minimus," 29 C.F.R. § 1903.14. A "serious" violation, which is the type of violation for which Gallagher was cited, is:

[D]eemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

29 U.S.C. § 666(k) (emphasis added); see Brock v. Morello Bros. Constr., 809 F.2d 161, 164 (1st Cir. 1987).

A "serious" violation, therefore, only arises if an employer has knowledge of the presence of the condition prohibited by the workplace safety standard, though, as 29 U.S.C. § 666(k) makes clear, an employer need not have actual knowledge of that condition's presence in order for the employer to be liable for a serious violation. See W.G. Yates & Sons Constr. Co. v. Occupational Safety & Health Review Comm'n, 459 F.3d 604, 607 (5th Cir. 2006). The employer may, instead, be found liable for having only constructive knowledge of that condition's existence in the workplace, in the sense that the employer may be deemed to know of that condition if "with the exercise of reasonable diligence, [the employer] could have known of the presence of the violative condition." Pride Oil Well Serv., 199 CCH OSHD ¶29807, (No. 87-692, 1992). And, we have held that, with respect to violations of health and safety standards under the OSH Act, the knowledge of a supervisor may be imputed to an employer such that "an employer can be charged with constructive knowledge of a safety violation that supervisory employees know or should reasonably know about." P. Gioioso & Sons, Inc. v. Occupational Safety & Health Review Comm'n, 675 F.3d 66, 73 (1st Cir. 2012).

The OSH Act also establishes the Commission, which consists of three members, each of whom is appointed by the President with the advice and consent of the Senate. Martin, 499 U.S. at 147, 111 S.Ct. 1171. The Commission is charged under the OSH Act with acting "as a neutral arbiter," In re Perry, 882 F.2d 534, 537 (1st Cir. 1989) (quoting Cuyahoga Valley Ry. Co., 474 U.S. at 7, 106 S.Ct. 286 ), in carrying out adjudicative functions under that statute.² Martin, 499 U.S. at 147–48, 111 S.Ct. 1171 (citing 29 U.S.C. § 651(b)(3) ).

The Act provides that, "[i]f an employer wishes to contest a [violation] citation, the Commission must afford the employer an evidentiary hearing and ‘thereafter issue an order, based on findings of fact, affirming, modifying, or vacating [OSHA's] citation or proposed penalty.’ " Id. (quoting 29 U.S.C. § 659(c) ). The initial decision regarding a challenge to a citation issued by OSHA is made by an administrative law judge ("ALJ"). 29 U.S.C. § 661(j) ; Martin, 499 U.S. at 147–48, 111 S.Ct. 1171. The initial decision rendered by the ALJ "become[s] the final order of the Commission ... unless ... any Commission member has directed that such report shall be reviewed by the Commission." 29 U.S.C. § 661(j). Thereafter, "[b]oth the employer and the Secretary have the right to seek review of an adverse Commission order in the court of appeals." Martin, 499 U.S. at 148, 111 S.Ct. 1171.

B.

In the case at hand, Jason Thibault ("Thibault"), a member of Pipefitters Local 537 labor union in Massachusetts for twelve years,³ was working on August 1, 2014 as a pipefitter for Gallagher, which operates a business in Massachusetts that makes prefabricated piping systems for installation in major construction projects. The accident that resulted in OSHA issuing the citation to Gallagher for the two workplace safety violations at issue here occurred in Gallagher's fabrication shop after Thibault, using two web slings,⁴ rigged a pipe assembly that weighed roughly 5,000 pounds to an overhead bridge crane and then used the crane to hoist the assembly.

During the hoist, Thibault placed his right hand on the pipe assembly, which was teetering, to steady it. Thereafter, a weld suddenly broke and part of the pipe assembly then smashed Thibault's hand, resulting in serious injuries, including the loss of his index and middle fingers above the knuckles.

The pipe assembly, it turns out, had been rigged improperly in two respects. First, the pipe assembly was rigged with the slings near the midpoint of the assembly rather than on the assembly's two ends. Second, one of the slings was rigged around multiple pipes. This improper sling configuration resulted in the load teetering when hoisted and caused lateral force to be exerted on the outermost pipes of the assembly. Consequently, due to the resulting pressure, a weld broke during the lift.

The only person other than Thibault who witnessed the accident was another Gallagher employee—Joseph Myles ("Myles"). Myles was present at the scene of the accident because he was assisting Thibault with the pipe assembly lift, including by operating the hoist. The fabrication shop pipefitter foreman—Mark DiCristoforo ("DiCristoforo")—was Thibault's immediate supervisor. But, DiCristoforo was in his office at the time of the accident and did not see the accident occur.

In consequence of the accident and on the same day that the accident occurred, an OSHA compliance officer arrived at the fabrication shop to conduct an onsite inspection and to investigate the circumstances of the accident. During the inspection, DiCristoforo attempted to weigh the pipe assembly for the OSHA officer. In doing so, DiCristoforo rigged the pipe assembly to a scale in a manner that was substantially similar to the improper rigging used by Thibault.

As a result of his inspection, the OSHA officer found "serious" violations of several OSHA workplace safety standards. The OSHA officer then issued Gallagher a two-item citation, which described Gallagher's violation of two OSHA general industry standards.

Gallagher was first cited for a serious violation of 29 C.F.R. § 1910.179(n)(3)(i), which requires a "load shall be well secured and properly balanced in the sling or lifting device before it is lifted more than a few inches." As a basis for this violation, the citation stated that the "pipe assembly hoisted [by Thibault and Myles] ... was not well secured, nor properly balanced while [employees] attempt[ed] to place it onto...