Pepper Contracting Services v. Occupational Safety and Health Administration, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10302
Non-Argument Calendar
________________________
Agency No. 14-0714
PEPPER CONTRACTING SERVICES,
Petitioner,
versus
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR,
Respondents.
________________________
Petition for Review of a Decision of the
Occupational Safety and Health Review Commission
________________________
(July 25, 2016)
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Before HULL, WILSON and ROSENBAUM, Circuit Judges.
PER CURIAM:
Pepper Contracting Services, Inc. (“Pepper”) seeks review of a final order of
the Occupational Safety and Health Review Commission (“Commission”). The
Secretary of Labor issued Pepper a citation for a serious “general duty clause”
violation under the Occupational Safety and Health Act of 1970 (“OSHA”),
codified at 29 U.S.C. §§ 651-678. The Commission subsequently affirmed the
citation in a final order. After review of the record and briefs, we affirm.
I. BACKGROUND
This case concerns a fatal accident that occurred on October 29, 2013, at a
highway construction worksite supervised by Pepper. The parties largely agree on
the facts.
Pepper is a general construction contractor located in Tampa, Florida.
Pepper’s business, at least in part, consists of conducting milling operations on
roads, which involves removing existing road surface material with a milling
machine and then adding new road base and asphalt layers. The milling operation
is performed using a convoy of vehicles moving in tandem, which consists of a
milling machine and a series of dump trucks. As the milling machine moves
forward removing the existing asphalt layer, a chute extending forward from the
front of the machine deposits milling debris into a dump truck in front of the
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machine using a conveyor. Once the dump truck is filled, it leaves the vehicle
convoy to dump the milled material, and another dump truck backs up to take its
place in front of the milling machine. Dump trucks continuously cycle through,
alternatingly filling and dumping their loads, which allows the milling process to
proceed without interruption.
On October 29, 2013, Pepper’s milling team consisted of three of Pepper’s
own employees as well as several employees supplied by two subcontractors,
Turtle Southeast Milling and Jason’s Hauling. The Pepper employees included
foreman Terry Infinger, operator Robert Bacon, and decedent Alex Diaz. Jason’s
Hauling provided several dump trucks, two of which were driven by Yonnesly
Carmenate and Alejandro Perez, both independent contractors of Jason’s Hauling.
That day, the milling operation’s work focused on the eastside of Dale
Mabry Highway, which runs north to south. The operation started around 7:30 am
on a portion of Dale Mabry Highway located south of Tampa Bay Boulevard,
which runs east to west. Later that morning, as the convoy progressed northward
on Dale Mabry Highway, it crossed Tampa Bay Boulevard to continue work on the
road extending northward.
After crossing Tampa Bay Boulevard, the convoy temporarily ceased
operations to allow the milling machine foreman, Turtle Southeast employee David
Hollister, to reset the milling machine. Around the same time, foreman Infinger
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and decedent Diaz walked ahead of the convoy to the location of a Verizon pole
marker along the roadside of Dale Mabry Highway. The previous week, the
milling machine had clipped a telecommunications box overgrown with grass
located next to a similar Verizon pole marker. This time foreman Infinger wanted
to check whether there was another such box and, if so, fully expose it so that it
would be visible to the milling machine operator.
Sure enough, foreman Infinger found a partially exposed
telecommunications box next to the Verizon pole and began uncovering the front
edge of the box using a shovel. Foreman Infinger showed decedent Diaz how to
properly expose the box, and then Infinger told Diaz to finish uncovering it.
Foreman Infinger anticipated that it would only take about three to four minutes for
decedent Diaz to finish exposing the box. Infinger left Diaz to complete the task
and walked back to the milling machine. Diaz was wearing a hard hat and a safety
vest. Foreman Infinger did not tell any of the dump truck drivers that Diaz was up
ahead of the convoy working on the telecommunications box.
Sometime after the milling convoy had crossed Tampa Bay Boulevard and
after decedent Diaz began exposing the box, the milling operation resumed. The
milling convoy was moving at its usual pace of 10 feet per minute or under three
miles per hour. At this point, Carmenate of Jason’s Hauling was driving the dump
truck positioned directly in front of the milling machine, and Perez of Jason’s
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Hauling was positioned directly in front of Carmenate’s dump truck waiting to take
Carmenate’s place in the convoy.
A couple of minutes after the milling convoy resumed, it had only moved
about 10 to 15 feet when Carmenate honked his horn because he noticed that his
dump truck was too close to Perez’s dump truck. Perez had not been paying
attention, and upon hearing Carmenate’s honk, Perez sped forward down the road
and struck decedent Diaz, who was still standing by the telecommunications box.
From where Perez responded to Carmenate’s honk, Perez’s truck sped forward a
distance of 83 to 88 feet before he struck Diaz.1 Diaz subsequently died as a result
of his injuries.
On November 18, 2013, the Occupational Safety and Health Administration
began an investigation into the incident after being notified of Diaz’s death.
Compliance Specialist Gerardo Ortiz (“Investigator Ortiz”) headed up that
investigation. On April 24, 2014, upon the conclusion of the investigation, the
Secretary of Labor issued Pepper a citation for a serious “general duty clause”
violation under section 5(a)(1) of OSHA. 29 U.S.C. § 654(a)(1). The citation
alleged that “employees were exposed to the hazard of being struck by vehicular
traffic inside a work zone,” and as a result, Pepper committed a workplace
violation because it “did not furnish employment and a place of employment which
1 Neither Pepper nor the Secretary contests the ALJ’s fact-finding as to this 83-to-88 foot
distance.
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were free from recognized hazards that were causing or likely to cause death or
serious physical harm to employees.”
According to Investigator Ortiz’s report, the absence of “Internal Traffic
Control Plans” and “a flagger to clear out of the path of dump trucks before the
truck started to move forward” were contributing factors to the October 29, 2013,
accident.
II. PROCEDURAL HISTORY
After the Secretary of Labor issued a citation to Pepper on April 24, 2014,
Pepper filed a Notice of Contest on April 30, 2014. Thereafter, on June 19, 2014,
the Secretary of Labor filed a complaint against Pepper before the Commission.
A hearing was held before Administrative Law Judge (“ALJ”) John Gatto on
January 27-28, 2015. At the hearing, numerous employees from Pepper’s October
29, 2013, worksite testified, as well as Investigator Ortiz. Among other things,
Investigator Ortiz testified that decedent Diaz “was in the path of the machinery
and the machine operator had not been notified of the presence and the milling . . .
should have been told to stop.”
ALJ Gatto issued a 22-page order on November 2, 2015, in which he
affirmed the citation. While ALJ Gatto found some of Investigator Ortiz’s
testimony to be not credible, he determined that Ortiz’s testimony “regarding the
existence of a struck-by hazard and the inadequacy of Pepper’s internal traffic
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control plan” to be plausible, consistent, and corroborated with credible evidence
in the record, and he afforded it “considerable weight.” The ALJ concluded that a
hazard had existed on Pepper’s worksite on the day of the accident. While it
discredited the Secretary’s theory that decedent Diaz had been standing in Perez’s
blind spot at the time of the accident, ALJ Gatto nevertheless found that the
citation sufficiently put Pepper on notice of the alleged struck-by hazard, and ALJ
Gatto explained:
[T]here is no dispute that the decedent was assigned to work near the
Verizon pole that served as a marker for the telecommunications box,
which was in the path of the milling operation. This in and of itself
presented the potential for harm. The struck-by hazard was a
preventable consequence of a work operation over which Pepper can
reasonably be expected to exercise control. Therefore, the Secretary
has established the existence of a struck-by hazard.
(citation omitted).
On November 24, 2015, Pepper filed a Petition for Discretionary Review
with the Commission. The matter was not directed for review by the Commission,
and the ALJ’s decision became a final order of the Commission on December 7,
2015. Pepper’s petition for review to this Court followed.
III. DISCUSSION
We afford Commission decisions “considerable deference” on review.
Quinlan v. Sec’y, U.S. Dep’t of Labor, 812 F.3d 832, 837 (11th Cir. 2016). The
Commission’s fact-findings must be upheld “if supported by substantial evidence
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on the record considered as a whole.” 29 U.S.C. § 660(a). Substantial evidence is
“more than a scintilla and is such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Quinlan, 812 F.3d at 837 (quotation
marks omitted). “The Commission’s conclusions of law, meanwhile, must be
upheld as long as they are not ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with . . . law.’” Id. (quoting 5 U.S.C. § 706(2)(A)).
The Commission and its ALJs must follow the law of the circuit to which the case
would most likely be appealed. ComTran Group, Inc. v. U.S. Dep’t of Labor, 722
F.3d 1304, 1307 (11th Cir. 2013).
An employer commits a general duty clause violation when he fails to
“furnish to each of his employees employment and a place of employment which
are 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 prove an employer’s “serious violation of OSHA’s general duty clause,”
the Secretary must establish that “(1) the employer failed to render its work place
free of a hazard; (2) the hazard was recognized; . . . (3) the hazard caused or was
likely to cause death or serious physical harm” and “(4) the hazard [was]
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preventable.” Ga. Elec. Co. v. Marshall, 595 F.2d 309, 320-21 (5th Cir. 1979)
(quotation marks and internal citations omitted).2
This case concerns only the first element, the existence of a hazard in the
workplace. Pepper points us to Commission authority that a “hazard” consists of
conditions or practices deemed unsafe over which an employer can reasonably be
expected to exercise control. Morrison-Knudson Co./Yonkers Contracting Co., A
Joint Venture, 16 BNA OSHC 1105, 1121 (No. 88-572, 1993) (citing Pelron Corp.,
12 BNA OSHC 1833, 1835-36 (No. 82-388, 1986)). Furthermore, for purposes of
proving “employee exposure to a hazard,” the Secretary must establish that “it is
reasonably predictable, either by operational necessity or otherwise (including
inadvertence), that employees have been, are, or will be in the zone of danger.”
D.T. Constr. Co., 19 BNA OSHC 1305, 1308 (No. 99-0147, 2000) (ALJ).
Additionally, Pepper highlights Commission authority that the Secretary can prove
employee exposure to a hazard by showing either an employee’s actual exposure to
a hazard in a zone of danger or that it was reasonably predictable that an employee
would have access to a hazard in a zone of danger. Nuprecon LP, 23 BNA OSHC
1817, 1818-19 (No. 08-1307, 2012).
On appeal, Pepper primarily challenges the Commission’s determination that
a hazard existed on its worksite. Pepper argues that the Secretary cannot prove a
2 This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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general duty clause violation without proving the existence of a “struck-by” hazard
and contends that the Secretary’s evidence before the ALJ proving such a hazard
was insufficient. Furthermore, Pepper argues that certain of the ALJ’s fact-
findings were inconsistent with its conclusion that the Secretary proved decedent
Diaz was exposed to a struck-by hazard.
Our review of the Commission’s final, thorough 22-page order confirms that
there was no reversible error in its decision. The ALJ’s order explained, “[T]here
is no dispute that the decedent was assigned to work near the Verizon pole that
served as a marker for the telecommunications box, which was in the path of the
milling operation. This in and of itself presented the potential for harm.” The
ALJ’s order concluded that the Secretary had established the existence of a hazard.
The ALJ’s hazard conclusion was supported by the testimony of numerous
Pepper-worksite employees—including foreman Infinger, operator Bacon, dump
truck driver Carmenate, and the milling machine foreman—most of whom the ALJ
found to be credible, straightforward, and trustworthy witnesses. In sum, their
testimony established three critical facts: (1) Pepper left decedent Diaz to perform
a task while standing in the path of the milling convoy without any supervisory
protocol to account for his whereabouts as the milling convoy prepared to start
again; (2) Pepper permitted the milling convoy to begin operating again while Diaz
was still working and standing in the convoy’s path; and (3) Pepper did not inform
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any of the dump truck drivers that Diaz was located in their path. We have no
difficulty concluding the ALJ’s evidentiary findings as to his hazard determination
were “supported by substantial evidence on the record considered as a whole.”
29 U.S.C. § 660(a).
Pepper argues that, in reaching his hazard determination, the ALJ failed to
consider such things as “the significance of Alex Diaz’s distance from the hazard,
the time anticipated for him to complete his task, or the slow pace of the convoy.”
Pepper maintains that Diaz was neither actually exposed to a struck-by hazard at
the moment Carmenate honked his horn, given Diaz’s distance from the slow-
moving convoy, nor was it reasonably predictable that Diaz would be exposed to
such a hazard, given that Pepper could not reasonably anticipate or control Perez’s
sudden careless behavior. Thus, the ALJ’s hazard conclusion was “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A).
Pepper’s arguments fail. For sure, it may not always be true that where a
contractor positions an employee 83 feet in front of and in the path of a milling
convoy, a hazard necessarily exists. But, as discussed above, here such additional
facts were shown as (1) Pepper’s lack of supervisory protocol to account for Diaz’s
whereabouts at the time the milling operation resumed, (2) Pepper’s authorizing
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the milling operations to resume, and (3) Pepper’s failure to inform the truck
drivers of Diaz’s location.
The ALJ could reasonably determine that the facts of this case showed that
Pepper’s placement of Diaz in the path of a milling convoy led by dump trucks
capable of moving at a high rate of speed actually exposed Diaz to a hazard in a
zone of danger or, at the least, made it reasonably predictable that he would
imminently be exposed to such a hazard in a zone of danger. See Nuprecon,
23 BNA OSHC at 1818-19. That is especially true where Pepper’s inadvertence in
resuming the operation while Diaz was in his assigned work location is what put
Diaz at risk, as Diaz was left in the path of a moving convoy. See D.T. Constr.,
19 BNA OSHC at 1308. Furthermore, Pepper could reasonably be expected to
exercise control over its worksite, including the path of the milling convoy. See
Morrison-Knudson, 16 BNA OSHC at 1121. In light of the Commission authority
Pepper itself highlights, we cannot say the Commission’s hazard determination
was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A).
Given the “considerable deference” we afford Commission decisions on
review, we affirm. Quinlan, 812 F.3d at 837.
AFFIRMED.3
3 We find Pepper’s remaining arguments lack merit.
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