Crowther Roofing & Sheet Metal of Florida v. Occupational Safety and Health Review Commission

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 11-10218 DECEMBER 15, 2011 Non-Argument Calendar JOHN LEY ________________________

OSHRC 10-1081

CROWTHER ROOFING & SHEET METAL OF FLORIDA,

Petitioner,

versus

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

Respondent.

________________________

Petition for Review of a Decision of the Occupational Safety and Health Review Commission ________________________

(December 15, 2011)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Crowther Roofing & Sheet Metal petitions this court to review the Commission’s decision assessing a penalty against Crowther, in the sum of

$3,500, for allowing its employees to work on a steep roof without fall protection,

in violation of 29 C.F.R. § 1926.501 (b)(11). In its brief,1 Crowther challenges

four of the Administrative Law Judge’s (“ALJ’s”)2 findings of fact: (1) that

Foreman Herrera had actual knowledge of Melendez’s and Valencia’s failure to

use fall protection, in violation of § 1926.501(b)(11); (2) that Crowther’s

supervisors had constructive knowledge of the violations; (3) that Crowther’s

training and enforcement program was insufficient; and (4) that Crowther’s

insufficient enforcement of its Tie-Off Rule evidenced its knowledge of

Melendez’s Valencia’s violation. We reject Crowther’s challenges to these

findings on the ground that they are supported by substantial record evidence.

In addition to these challenges, Crowther argues that the ALJ erred in

imputing Herrera’s knowledge of the § 1926.501.(b)(11) violations to Crowther.

The ALJ erred, according to Crowther, because “Herrera, who held the title of

foreman, was not on the roof at the time that [Melendez and Valencia] were

1 We state the substance of the issues Crowther’s brief lays out. Four question the sufficiency of the evidence to support the ALJ’s findings of fact; two raise legal errors. 2 The Commission elected not to review the ALJ’s decision. The ALJ’s decision therefore became the Commission’s final order for review. The ultimate question we must decide is whether the ALJ’s decision is supported by substantial evidence.

2 observed by OSHA to be violating fall protection rules and so he had no

knowledge of the violation which could be attributed to Crowther.” We find no

error. Among other things, Herrerra was responsible for directing the work of the

line workers, including ensuring that the workers complied with the company’s

Tie-Off Rule. Crowther also argues that the ALJ erred in rejecting its affirmative

unpreventable employee misconduct defense. Again, we find no error. To

establish its defense, Crowther had to prove that it had (1) established work rules

designed to prevent the violations; (2) adequately communicated those rules to its

employees; (3) taken steps to discover violations; and (4) where it had discovered

violations, had effectively enforced the rules. As the Commission properly

conceded, Crowther carried its burden with respect to the first two elements of the

defense. The record, however, fully supports the ALJ’s conclusion that Crowther

failed to prove the third and fourth elements. As for the third element, Crowther’s

own records indicated hundreds of OSHA violations over the preceding five years

and 100 violations in the first eight months of 2010, fifty five of which related to

fall protection.

We find no merit in any of Crowther’s challenges, and inasmuch as

substantial evidence supports the AlJ’s decision, the decision is

AFFIRMED.

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