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F & H Coatings, LLC v. Acosta

United States Court of Appeals, Tenth Circuit

August 20, 2018

F & H COATINGS, LLC, Petitioner,

          Petition for Review of a Final Order of the Occupational Safety and Health Review Commission (OSHRC Case No. 15-0558)

          Gary W. Auman and Douglas Scott Jenks, Dunlevey, Mahan & Furry, Dayton, Ohio, for Petitioner.

          Brian A. Broecker, Attorney (Nicholas C. Geale, Acting Solicitor of Labor, Ann S. Rosenthal, Associate Solicitor of Labor for Occupational Safety and Health, and Charles F. James, Counsel for Appellate Litigation, with him on the brief), United States Department of Labor, Washington, D.C., for Respondents.

          Before TYMKOVICH, Chief Judge, HARTZ, and HOLMES, Circuit Judges.


         F & H Coatings, L.L.C. ("F & H") seeks review of a final order of the Occupational Safety and Health Review Commission ("Commission"), and asks us to set aside a $7, 000 penalty imposed by an administrative law judge ("ALJ"). The ALJ reviewed evidence presented by the Department of Labor ("DOL") during a two-day hearing, and held that the DOL had shown that F & H breached the General Duty Clause of the Occupational Safety and Health Act ("OSH Act"), 29 U.S.C. § 654(a)(1).

         Upon review of the record, we conclude that the ALJ's findings are supported by substantial evidence, see 29 U.S.C. § 660(a), and therefore affirm the Commission's final order.


         F & H is a commercial and industrial painting contractor. F & H contracted with Boardman L.L.C. ("Boardman"), a manufacturer of steel pressure vessels and tanks, to sandblast and paint a number of vessels at Boardman's manufacturing facility in Wichita, Kansas.

         During the performance of this contract, a fatal accident at the Boardman facility took the life of Toney Losey, an employee of F & H. On September 23, 2014, Mr. Losey and his F & H supervisor, Robert Patrick, were preparing a 12, 000 pound vessel for sandblasting when the vessel slipped from its support racks and crushed Mr. Losey. F & H characterizes this event as a "freakish, unforeseeable, and still-unexplained accident." Pet.'s Opening Br. at 3.

         The vessel was about fifteen feet long and featured a number of irregular protrusions-including, notably, a manway[1] weighing approximately 2, 600 pounds. The vessel was elevated on a set of pipe racks[2] provided by F & H before it fell. Boardman positioned the vessel on the pipe racks with a crane.

         Boardman did not use pipe racks while manufacturing the vessel. Instead, Boardman used "rollers," which, according to the ALJ, "cradle the vessel[] between two sets of wheels. . . . As compared to [the] pipe racks, the rollers maintained four points of contact with the vessel."[3] Pet.'s App. at 1002-03 (Decision & Order, dated Nov. 28, 2016) (citations and footnote omitted). F & H claims that it was impossible to place the vessel in question in the rollers once legs were attached to the vessel at the end of the manufacturing process.

         Mr. Patrick testified that a vessel "couldn't be off-center" or "too far on one end" of the pipe racks, and that an unstable vessel would "probably fall." Pet.'s App. at 151-52, 159 (Tr. Hr'g, dated Mar. 29, 2016). To ensure that the vessel at issue was correctly placed on the pipe racks, Mr. Patrick performed a customary Pre-Work Job Hazard Analysis before the other F & H employees began working on the vessel. Mr. Patrick "visually check[ed] [the vessel] and then . . . purposely tr[ied] to move it" to ensure it was centered and stable on the pipe racks. Id. at 161. Mr. Patrick relied entirely upon his experience to assess whether the vessel was safely supported by the pipe racks, as he took no objective measurements.

         Mr. Patrick and Mr. Losey then began preparing the vessel for sand-blasting. Mr. Losey leaned into the manway to hang lights inside the vessel, positioning his body halfway inside the vessel with his feet on the floor. Mr. Patrick testified that he heard a loud noise, saw the racks "flip up," and saw the vessel begin to roll off of the racks. Id. at 168-70. Mr. Losey was partly inside the vessel when it fell, and was crushed by its weight.

         The Occupational Safety and Health Administration ("OSHA") learned of the accident the same day, and sent a Compliance Safety and Health Officer to inspect the scene. The OSHA officer also interviewed witnesses and employees of F & H and Boardman. Upon the officer's recommendation, OSHA issued a citation to F & H on March 17, 2015, for a violation of the General Duty Clause, 29 U.S.C. § 654(a)(1), because F & H's employee was "exposed to struck-by hazards in that the pressure vessel was not placed on a work rack which prevented unintentional movement." Pet.'s App. at 623 (Citation & Notification of Penalty, dated Mar. 17, 2015).

         F & H filed a Notice of Contest on March 23, 2015, challenging "the substance of the citation alleged, the penalty assessed, and any abatement which might be required." Id. at 626 (Letter re. Notice of Contest, dated Mar. 23, 2015). The DOL then filed a complaint, seeking enforcement of the citation by the Commission. F & H responded to the complaint, denying substantially all of the DOL's allegations; it asserted twelve affirmative defenses, including, as relevant on appeal: (1) that the alleged conditions did not constitute a hazard; (2) that the alleged hazard was not recognized by the industry or by F & H; and (3) that F & H had no actual or constructive knowledge of the alleged hazard.

         A two-day hearing was held before an ALJ on March 29 and 30, 2016. The ALJ heard extensive testimony from OSHA officials and individuals who were employees of F & H and Boardman at the time of the accident. The ALJ also reviewed photos of the accident scene. In addition, over F & H's objections, the ALJ permitted the DOL to introduce testimony by Brian Hope, an officer of a safety and health consulting company, as "an expert in safety procedures used to support tanks and vessels during blasting and painting." Id. at 462 (Tr. Hr.'g, dated Mar. 30, 2016). Among other things, Mr. Hope testified that other industrial painting companies do not use pipe racks like those used by F & H when working with tanks the size of the one that crushed Mr. Losey. Pipe racks would ordinarily be used "[t]o support . . . small gauge, lightweight material" weighing "less than . . . 2[, ]000 pounds." Id. at 471-74. Mr. Hope testified that placing a 12, 000 pound tank on pipe racks like those used by F & H would pose a hazard recognized by the industry of large-tank painters because the pipe racks would not prevent unintentional lateral movement. Based upon his "personal view and . . . experience" as well as the resting position of the fallen tank, Mr. Hope testified that the placement of the vertical supports and the fact that the crossbeams were rounded caused the pipe racks to "[v]eer[] up and . . . shoot[] out from underneath the tank," as the tank rolled off the vertical support, fell, and continued to roll over Mr. Losey. Id. at 476, 478-81.

         Mr. Hope further testified that several feasible methods for preventing unintentional lateral movement of elevated tanks exist, including the use of rollers[4] or I-beam material stands.[5]

         Approximately eight months after the hearing, the ALJ issued a written order, finding that the accident that killed Mr. Losey resulted from an obviously hazardous condition of which F & H was aware. The ALJ entered a decision and order on November 28, 2016, affirming the citation and the penalty of $7, 000 assessed by OSHA. The full Commission declined to undertake discretionary review, and the ALJ's decision thereafter became the final decision of the Commission. See Jake's Fireworks Inc. v. Acosta, 893 F.3d 1248, 1252 (10th Cir. 2018); Safeway, Inc. v. Occupational Safety & Health Review Comm'n, 382 F.3d 1189, 1193 (10th Cir. 2004). F & H appealed directly to this court.

         On appeal, F & H argues that the evidence did not support the ALJ's conclusion that F & H breached the General Duty Clause. F & H argues, in particular, that the placement of the pressure vessel on pipe racks did not constitute a hazardous condition, and that the occurrence of a "freakish and unforeseeable accident" is not evidence to the contrary. Pet.'s Opening Br. at 10. Further, F & H argues (1) that the DOL did not establish that either F & H or the industry recognized this condition as a hazard; (2) that the alleged hazard was likely to cause death or serious physical harm; or (3) that feasible means existed to abate the hazard.

         F & H also argues that "Mr. Hope's testimony should have been excluded because he was not qualified to testify as an expert in this case, and because his opinions were untested, speculative, and, therefore, unreliable." Id. at 29.


         This Court has jurisdiction to review decisions of the Commission pursuant to § 11(a) of the OSH Act, 29 U.S.C. § 660(a). Universal Constr. Co. v. Occupational Safety & Health Review Comm'n, 182 F.3d 726, 728 (10th Cir. 1999).

         Our review of a final decision of the Commission is governed by 29 U.S.C. § 660(a), which "mandates that the 'findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.'" Slingluff v. Occupational Safety & Health Review Comm'n, 425 F.3d 861, 866 (10th Cir. 2005) (quoting Interstate Erectors, Inc. v. Occupational Safety & Health Review Comm'n, 74 F.3d 223, 226 (10th Cir. 1996) (quoting § 660(a))); see also Tierdael Constr. Co. v. Occupational Safety & Health Review Comm'n, 340 F.3d 1110, 1114 (10th Cir. 2003) ("This court reviews the Commission's findings of fact under a substantial evidence standard upon consideration of the record as a whole."). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Slingluff, 425 F.3d at 866 (quoting Kent Nowlin Constr. Co. v. Occupational Safety & Health Review Comm'n, 648 F.2d 1278, 1279 (10th Cir. 1981)). "As for factual findings, we do not reweigh the evidence, second-guess the factual inferences drawn therefrom, or substitute our judgment on the credibility of witnesses." Jake's Fireworks Inc., 893 F.3d at 1257.

         We will "affirm [the Commission's] legal conclusions unless they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Safeway, Inc., 382 F.3d at 1192; see also Jake's Fireworks Inc., 893 F.3d at 1257 ("Our review under this standard is narrow and highly deferential to the agency" (quoting Compass Envtl., Inc. v. Occupational Safety & Health Review Comm'n, 663 F.3d 1164, 1167 (10th Cir. 2011))).

         Because the ALJ's order in this case became the final order of the Commission when the Commission declined to review it, we review the ALJ's order on appeal under the same standard of review as we would an order actually issued by the Commission. Jake's Fireworks Inc., 893 F.3d at 1257 n.8; Safeway, Inc., 382 F.3d at 1193.

         We first address F & H's contention that the ALJ should not have admitted Mr. Hope's testimony as an expert on safety procedures used to support tanks and vessels during blasting and painting. We find no abuse of discretion in the ALJ's conclusion that Mr. Hope was qualified to offer such testimony or that his testimony was reliable. We next review the ALJ's conclusion that F & H violated ...

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