THOMAS G. GALLAGHER, INC., Petitioner,
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; R. ALEXANDER ACOSTA, Secretary of Labor, U.S. Department of Labor, [*] Respondents.
FOR REVIEW OF A FINAL ORDER OF THE OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION.
F. Laboe, with whom Orr & Reno, P.A. was on brief, for
Glabman, Senior Appellate Attorney, U.S. Department of Labor,
with whom Nick Geale, Acting Solicitor, Ann Rosenthal,
Associate Solicitor for Occupational Safety and Health, and
Heather R. Phillips, Counsel for Appellate Litigation, were
on brief, for respondents.
Torruella, Kayatta, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
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.
begin by reviewing the relevant statutory and regulatory
landscape. We then lay out the undisputed facts that are
relevant to the petition for review.
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 (1991) (citing
Cuyahoga Valley Ry. Co. v. United
Transp. Union, 474 U.S. 3, 6-7 (1985) (per curiam)). The
Secretary has in turn delegated the exercise of that
rulemaking authority to 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).
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 (citing 29 U.S.C. §§ 658-659, 666).
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).
"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., 1991-93 CCH
OSHD ¶ 29, 807, p. 40, 583 (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).
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. 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), in carrying
out adjudicative functions under that statute. Martin,
499 U.S. at 147-48 (citing 29 U.S.C. § 651(b)(3)).
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.
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.
case at hand, Jason Thibault ("Thibault"), a member
of Pipefitters Local 537 labor union in Massachusetts for
twelve years,  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,  rigged a pipe assembly that weighed
roughly 5, 000 pounds to an overhead bridge crane and then
used the crane to hoist the assembly.
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
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.
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, ...