C&W Facility Services, Inc. v. Secretary of Labor, et al

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11789
____________________
C&W FACILITY SERVICES, INC.,
Petitioner,
versus
SECRETARY OF LABOR,
OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION,
Respondents.
____________________
Petition for Review of a Decision of the
Occupational Safety and Health Review Commission
Agency No. 17-2056
____________________
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2 Opinion of the Court 20-11789
Before WILLIAM PRYOR , Chief Judge, G RANT, and H ULL , Circuit
Judges.
WILLIAM PRYOR , Chief Judge:
This petition for review requires us to decide whether the
Occupational Safety and Health Review Commission erred when
it decided that C&W Facility Services, Inc., violated a regulatory
requirement, 29 C.F.R. § 1910.132(a), by failing “to provide and re-
quire the use of personal protective equipment . . . in the form of
[personal flotation devices] to an employee pressure washing a
boat dock.” Our precedents required the Secretary to prove either
that the provision and use of personal protective equipment is in-
dustry custom or that “the employer ha[d] actual knowledge that
a hazard requires the use of . . . [the] personal protective equip-
ment.”
Fla. Mach. & Foundry, Inc. v. Occupational Safety & Health
Rev. Comm’n, 693 F.2d 119, 120 (11th Cir. 1982). But the Secretary
presented no evidence of an industry custom requiring the use of
personal flotation devices and no substantial evidence that C&W
had actual knowledge that pressure washing its boat dock required
the use of those devices. The Commission decided that the Secre-
tary satisfied his burden by proving only that C&W was aware of
the conditions that made the boat dock hazardous. Because the
Commission failed to apply the correct standard and the record
lacks substantial evidence of actual knowledge under that standard,
we grant the petition for review, set aside the order of the Com-
mission, and vacate the citation.
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20-11789 Opinion of the Court 3
I. BACKGROUND
Johnnie Norton operated a pressure washer with a rotary
scrubber on a dock at the Tampa Convention Center as part of his
normal job duties. The concrete dock was approximately 289 feet
and 7 inches long by 10 feet and 2 inches wide. The dock had no
guardrails or barricades and was surrounded on three sides by wa-
ter. At the edge of the dock where Norton was pressure washing,
the bay was approximately 19 feet deep. Norton fell into the bay
while performing his work and drowned. Norton was wearing rub-
ber boots and was not wearing a personal flotation device. Norton
had been working at the Tampa Convention Center for about a
year.
Upon receiving reports of Norton’s death, the Occupational
Safety and Health Administration sent Compliance Officer Mar-
rero to investigate. Officer Marrero examined the scene of the ac-
cident and conducted a series of interviews with other employees.
During his investigation, Officer Marrero did not identify any inci-
dents of employees falling off the dock and into the water before
Norton’s fatal accident, but he did identify two employees who
pressure washed the same dock as Norton in the years leading up
to his death who voluntarily wore personal flotation devices. Sev-
eral witnesses told Officer Marrero that one employee would al-
ways wear a personal flotation device while working close to the
water because he had a fear of water. The other employee, who
once pressure washed the dock when Norton was out sick, told Of-
ficer Marrero that although no supervisor instructed him to do so
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4 Opinion of the Court 20-11789
and he was able to swim, he went to the warehouse and acquired
a life jacket to wear while he washed the dock. Mike Sheehan, an
operations manager at the Convention Center, asked Norton if he
could swim before Norton took over the task of pressure washing
the docks from the employee who always wore a personal flotation
device. Norton told Sheehan that he could do so.
As a result of Officer Marrero’s inspection, the Administra-
tion issued a citation to C&W for its failure to provide and require
the use of a personal flotation device to an employee who was pres-
sure washing the dock in violation of federal health and safety reg-
ulations. The Administration classified the citation as “serious” be-
cause it involved a fatality, and proposed a $12,675 penalty.
C&W contested the citation, but an administrative law
judge affirmed the citation after a three-day hearing. The adminis-
trative law judge concluded that Norton was C&W’s “employee”
within the meaning of the Occupational Safety and Health Act, 29
U.S.C. § 652. The administrative law judge concluded, in the alter-
native, that C&W was properly cited as the “controlling employer”
under the Administration’s Multi-Employer Citation Policy.
See
OCCUPATIONAL SAFETY & H EALTH ADMIN., DIRECTIVE CPL 2-0.124
(1999). And the administrative law judge found that the Secretary
had satisfied his burden of proving a violation of section
1910.132(a), including that C&W had the requisite knowledge to
be held liable.
The administrative law judge acknowledged that our prece-
dents required the Secretary to prove either that the use of personal
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20-11789 Opinion of the Court 5
flotation devices was an industry custom or that C&W had “clear
actual knowledge that personal protective equipment was neces-
sary under the circumstances.”
S&H Riggers & Erectors, Inc. v. Oc-
cupational Safety & Health Rev. Comm’n, 659 F.2d 1273, 1285 (5th
Cir. Unit B Oct. 1981). Because the Secretary did not present any
evidence of industry custom at the hearing, the administrative law
judge considered only whether C&W had actual knowledge. The
administrative law judge relied on a decision from the Tenth Cir-
cuit,
Jake’s Fireworks Inc. v. Acosta, 893 F.3d 1248, 1260 (10th Cir.
2018), to assert that “[t]he Secretary need not show that an em-
ployer understood or acknowledged that the physical conditions
were actually hazardous” but “only that the employer was aware
of the physical conditions that constitute a violation.”
The administrative law judge found that C&W had “clear
actual knowledge that [personal protective equipment] was neces-
sary under the circumstances” because “[t]he circumstances (that
the dock was unguarded and surrounded on three sides by the
Tampa Bay, and that there were no ladders extending off the dock)
are facts that existed before Mr. Norton drowned” and because the
fact that Sheehan asked Norton if he could swim proved that C&W
was “aware of these ‘circumstances.’” The administrative law
judge also found that “[C&W] had specific confirmed knowledge
that [personal flotation devices] were warranted because C&W Su-
pervisor Sheehan specifically asked Mr. Norton if he could swim.”
He reasoned that “Sheehan’s query . . . is evidence of actual
knowledge that pressure washing the boat dock at the [Tampa
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6 Opinion of the Court 20-11789
Convention Center] without a [personal flotation device] being is-
sued and worn presented a drowning hazard.” The administrative
law judge gave heavy weight to the evidence that two other em-
ployees who pressure washed the dock voluntarily wore life jackets
while doing so. And he described “[o]perating a pressure washer
and rotary scrubber on an unguarded dock close to water” as “an
open and obvious hazard,” citing deposition testimony asserting
that “anyone tasked with using a pressure washer to clean the dock
would have to get the entire dock, including the very edge of the
dock that abuts the water.”
C&W appealed the decision of the administrative law judge
to the Commission, which declined to review the decision. So, the
decision of the administrative law judge became a final order of the
Commission.
See 29 U.S.C. § 661(j).
II. STANDARDS OF REVIEW
We will set aside an order of the Commission only if it is
arbitrary and capricious, an abuse of discretion, or otherwise not in
accordance with the law. 5 U.S.C. § 706(2)(A);
Fluor Daniel v. Oc-
cupational Safety & Health Rev. Comm’n, 295 F.3d 1232, 1236
(11th Cir. 2002). Factual findings of the Commission are conclusive
so long as they are supported by “substantial evidence” in the rec-
ord. 29 U.S.C. § 660(a);
Fluor Daniel, 295 F.3d at 1236. “Substantial
evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclu-
sion.”
J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350, 1352 (11th
Cir. 2000) (internal quotation marks omitted).
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20-11789 Opinion of the Court 7
III. DISCUSSION
The Administration cited C&W for violating section
1910.132(a), which provides that protective equipment must be
provided by employers and used by employees “wherever it is nec-
essary by reason of hazards.”
See 29 C.F.R. § 1910.132(a). Section
1910.132(a) is a “performance standard,” which means that it iden-
tifies its objective but does not prescribe the means for or the spe-
cific obligations of the employer to comply with the objective. Be-
cause “[d]ue process mandates that an employer receive notice of
the requirements of any [Administration] regulation before he is
cited for an alleged violation,” performance standards can create
problems of fair notice.
S&H Riggers, 659 F.2d at 1279;
accord Ow-
ens-Corning Fiberglass Corp. v. Donovan, 659 F.2d 1285, 1288 (5th
Cir. Unit B Oct. 1981) (“Due process requires that employers be
given reasonably clear advance notice of what is required of them
by [Administration] regulations.”).
In the context of performance standards like section
1910.132(a), settled precedent resolves the problem of fair notice
with a heightened knowledge requirement. That is, to hold an em-
ployer liable under a performance standard, the Secretary must
prove either that the protective measure is industry custom or that
the employer had “actual knowledge that a hazard requires the use
of some other or additional personal protective equipment.”
Fla.
Mach. & Foundry, 693 F.2d at 120. The Secretary concedes that “no
evidence demonstrating an industry custom of requiring [personal
flotation devices] for workers doing pressure washing on docks was
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8 Opinion of the Court 20-11789
introduced before the [administrative law judge],” so the only dis-
pute is whether C&W had “actual knowledge.”
We divide our discussion in two parts. First, we explain that
the Commission misapplied the standard for actual knowledge.
Second, we explain that there is no substantial evidence to support
a finding that C&W had actual knowledge of the requirement to
provide and require the use of personal flotation devices for em-
ployees when they are pressure washing the dock.
A. The Commission Misapplied the Standard for “Actual
Knowledge.”
Our precedent is clear: to hold an employer liable under sec-
tion 1910.132(a) in the absence of an industry custom, the Secretary
must prove that the employer had “actual knowledge that personal
protective equipment is necessary to protect its employees from a
particular hazard.”
S&H Riggers, 659 F.2d at 1278. Actual
knowledge cannot be “implied from voluntary safety efforts stand-
ing alone,” but “an employer’s safety program may be considered
in support of a finding of knowledge along with other factors indi-
cating to the employer the need for particular safety equipment.”
Owens-Corning, 659 F.2d at 1288. Instead, our precedent demands
“evidence in the record of a specific, confirmed knowledge on [the
employer’s] part regarding a hazard warranting a [personal protec-
tive equipment] requirement.”
Cotter & Co. v. Occupational
Safety & Health Rev. Comm’n, 598 F.2d 911, 915 (5th Cir. 1979).
In determining whether there is substantial evidence of actual
knowledge, we have paid close attention to previous workplace
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20-11789 Opinion of the Court 9
accidents,
see id. at 914, the extent to which employees demand
protective equipment,
see Owens-Corning, 659 F.2d at 1289, and
the obviousness of the hazard,
see S&H Riggers, 659 F.2d at 1282–
83.
Our requirements for “actual knowledge” are illustrated in
three decisions of our predecessor circuit. In
Cotter & Co. v. Occu-
pational Safety & Health Review Commission, our predecessor cir-
cuit reversed an order of the Commission holding an employer li-
able under section 1910.132(a) for failing to require employees to
wear steel-toed shoes on a shipping and receiving dock. 598 F.2d at
912. There, the employer had a program through which employees
could voluntarily buy steel-toed shoes, but the shoes were not re-
quired in the workplace.
Id. In the two years preceding the Admin-
istration’s inspection, “[o]nly one injury . . . would have been pre-
vented or mitigated by steel-toed shoes.”
Id. at 914. The court de-
termined that the company did not have actual knowledge because
it found “no evidence in the record of a specific, confirmed
knowledge on the employer’s part regarding a hazard warranting
a steel-toed shoe requirement.”
Id. at 915. The court also warned
against “the folly of discouraging an employer, by expanding the
scope of his liability beyond what it would otherwise be, from ex-
horting employees to take every possible safety precaution in the
development of a superior industrial safety program.”
Id.
In
Owens-Corning Fiberglass Corp. v. Donovan, our prede-
cessor circuit affirmed an order of the Commission holding an em-
ployer liable for failing to require employees to wear gloves when
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10 Opinion of the Court 20-11789
handling fiberglass insulation. 659 F.2d at 1286. The court con-
cluded that there was substantial evidence to support the adminis-
trative law judge’s determination that the employer had actual
knowledge that gloves were “necessary to protect its employees
from fiberglass itch” because the employer had been aware “for at
least [the previous] thirty years that many, if not most, employees
exposed to fiberglass develop fiberglass itch . . . and that wearing
gloves [was] the only way to prevent fiberglass itch.”
Id. at 1288–
89. The court clarified that although “[k]nowledge that personal
protective equipment is required may not be implied from volun-
tary safety efforts standing alone[,] . . . an employer’s safety pro-
gram may be considered in support a finding of knowledge along
with other factors indicating to the employer the need for particu-
lar safety equipment.”
Id. at 1288. The Court assessed the propor-
tion of employees that took advantage of the voluntary program
and considered it important that, unlike in
Cotter, where the vol-
untary steel-toed shoes program served only to accommodate the
preferences of individual employees, it was “apparent from the rec-
ord . . . that [the employer’s] glove program resulted from its em-
ployees’ demands, through their union, that [the employer] pro-
vide gloves to all who desired them.”
Id. at 1289.
In
S&H Riggers & Erectors, Inc. v. Occupational Safety &
Health Review Commission, our predecessor circuit reversed an
order of the Commission holding an employer liable for failing to
require employees to use safety belts on the roof of a multi-story
building. 659 F.2d at 1275–76. The court held that there was not
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20-11789 Opinion of the Court 11
substantial evidence that the employer had actual knowledge of the
requirement, even though the company “did not contest a previ-
ous citation for . . . failure to require safety belts.”
Id. at 1284. And
the Court rejected the Secretary’s “faulty premise that the presence
of an ‘obvious’ hazard by itself gives notice of the need to provide
safety belts or other protective equipment.”
Id. at 1282. In fact, “the
very ‘obviousness’ of a hazard” such as an unguarded, open roof
might “lead a reasonable employer to conclude that no further
safety precautions are necessary” because the workers would have
a “constant awareness of the danger of falling.”
Id. at 1283. Alt-
hough
S&H Riggers involved an alleged violation of section
1926.28(a), not section 1910.132(a), the actual-knowledge require-
ments for the two regulations are the same.
Id. at 1275 n.2, 1278.
The administrative law judge misapplied this standard. Alt-
hough the administrative law judge cited the correct standard from
S&H Riggers, he also incorrectly asserted that “[t]he Secretary need
not show that an employer understood or acknowledged that the
physical conditions were actually hazardous” but “must show only
that the employer was aware of the physical conditions that consti-
tute a violation.” These statements directly conflict with our prec-
edents, which require both actual knowledge of the hazard and ac-
tual knowledge that the hazard requires the provision and use of
personal protective equipment.
See Cotter, 598 F.2d at 915;
Owens-
Corning, 659 F.2d at 1290;
S&H Riggers, 659 F.2d at 1278, 1285.
This heightened knowledge requirement is a requirement of due
process, and the administrative law judge’s failure to apply it means
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12 Opinion of the Court 20-11789
that the decision was “not in accordance with law.”
See 5 U.S.C.
§ 706(2)(A).
B. The Record Lacks Substantial Evidence of Actual Knowledge.
The record also lacks substantial evidence to support a find-
ing that C&W had actual knowledge. Under our precedents, the
evidence relied on by the administrative law judge—the condition
of the dock, Sheehan’s query whether Norton could swim, the two
instances of voluntary personal-flotation-device use, and the “open
and obvious” nature of the hazard—cannot sustain a finding of ac-
tual knowledge of the requirement to provide and require the use
of personal flotation devices. Because there is not more than a
“scintilla” of evidence to support a finding of actual knowledge,
see
J.A.M. Builders, 233 F.3d at 1352, we set aside the order of the Com-
mission.
C&W’s awareness of the circumstances of Norton’s work
on the dock is insufficient to support a finding of actual knowledge.
In both
Cotter and
S&H Riggers, the employers were aware of the
conditions under which their employees worked. But this aware-
ness did not constitute “specific, confirmed knowledge . . . regard-
ing a hazard warranting a [personal protective equipment] require-
ment.”
Cotter, 598 F.2d at 915;
accord S&H Riggers, 659 F.2d at
1285.
Likewise, Sheehan’s question to Norton about his ability to
swim does not support a finding of actual knowledge that personal
flotation devices were required. At most, this evidence supports a
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20-11789 Opinion of the Court 13
finding that C&W was aware of a possible hazard for employees
who could not swim. It also evidences that C&W may have con-
cluded that an employee’s ability to swim negated the possible haz-
ard. As the Court explained in
Owens-Corning, “[a]n employer
may be aware of a possible hazard, yet still lack notice that manda-
tory personal protective equipment is necessary, if the hazard has
never given rise to an injury.” 659 F.2d at 1290. In the absence of
evidence of prior incidents of employees falling off the dock,
C&W’s awareness of a possible hazard for employees unable to
swim does not support a finding of “actual knowledge that [the]
hazard require[d] the use of [personal flotation devices].”
See Fla.
Mach. & Foundry, Inc., 693 F.2d at 120;
see also Owens-Corning,
659 F.2d at 1290 (“[A] very low injury rate has a definite bearing on
the question whether an employer has notice that personal protec-
tive equipment is necessary under a general regulation such as [sec-
tion] 1910.132(a).”).
The voluntary use of personal flotation devices by two other
employees also does not support a finding of actual knowledge that
personal flotation devices were
required to abate the hazard. Like
the voluntary steel-toed shoes program in
Cotter, the voluntary
safety precautions of two employees are evidence only that the
preferences of these employees were accommodated, “rather than
. . . reflect[ing] the knowledge of the employer that the [personal
flotation devices] were necessary precautions.”
See 598 F.2d at 914–
15. The administrative law judge’s attempt to distinguish
Cotter on
the ground that the employer there encouraged employees “to
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14 Opinion of the Court 20-11789
take every possible safety precaution” is unavailing.
See id. at 915.
C&W’s failure to encourage its employees to “take every possible
safety precaution” cannot be evidence that C&W knew that per-
sonal flotation devices were necessary. If anything, it suggests a
lack of that knowledge.
Finally, the “obviousness” of a hazard is not evidence of ac-
tual knowledge and does not absolve the Secretary of his burden,
especially when the obviousness of the hazard would put employ-
ees on notice of the potential risk.
See S&H Riggers, 659 F.2d at
1282–83. “In the absence of an industry custom or standard requir-
ing the use of [personal flotation devices], or a history of fall acci-
dents, [C&W] . . . could [have] reasonably conclude[d] that em-
ployees’ constant awareness of the danger of falling provides ade-
quate protection against falls from flat, open surfaces.”
See id. at
1283. Like C&W’s failure to encourage its employees to “take
every possible safety precaution,” the “open and obvious” nature
of the hazard on the dock might cut against a finding of actual
knowledge that personal flotation devices were necessary.
Because substantial evidence does not support a finding that
C&W had actual knowledge of the requirement to provide and re-
quire the use of personal flotation devices for employees pressure
washing the dock, we grant the petition for review, “set[] aside . . .
the order of the Commission,” and vacate the citation.
See 29
U.S.C. § 660(a). “If the evidence would support but not compel a
finding of actual knowledge, a remand would be required in order
to permit the Commission to complete the factfinding process”
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20-11789 Opinion of the Court 15
under the correct standard.
S&H Riggers, 659 F.2d at 1284. But
“[b]ecause we hold that a finding of actual knowledge would not
be supported by substantial evidence in the record” even if the ad-
ministrative law judge applied the correct standard, “a remand
would be inappropriate.”
Id. And because we have vacated the ci-
tation, we need not discuss whether Norton was an “employee” of
C&W within the meaning of the Occupational Safety and Health
Act or whether C&W was the “controlling employer” within the
meaning of the Administration’s Multi-Employer Citation Policy.
IV. CONCLUSION
The petition for review is GRANTED, the order of the Com-
mission is SET ASIDE, and the citation is VACATED.
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