NDC Construction Company v. Secretary of Labor, United States Department of Labor ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14484
____________________
NDC CONSTRUCTION COMPANY,
Petitioner,
versus
SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF
LABOR,
Respondent.
____________________
Petition for Review of a Decision of the
Occupational Safety and Health Review Commission
Agency No. 17-1689
____________________
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2 Opinion of the Court 20-14484
Before LAGOA, BRASHER, and TJOFLAT, Circuit Judges.
PER CURIAM:
NDC Construction Company (“NDC”) seeks review of an
administrative law judge’s (“ALJ”) decision imposing a penalty for
violations of 29 C.F.R. § 1926.501(b)(13), an Occupational Safety
and Health Administration (“OSHA”) regulation concerning fall
protection at construction worksites. Following a bench trial, the
ALJ found that NDC failed to exercise reasonable diligence. The
ALJ’s decision became a final order of the Occupational Safety and
Health Review Commission (the “Commission”) when the Com-
mission denied NDC’s petition for discretionary review. NDC
now seeks review of the ALJ’s decision from this Court.
In its petition for review of the final order, NDC primarily
asserts two arguments. First, NDC contends that it cannot be held
liable for violating § 1926.501(b)(13) because NDC was held liable
under OSHA’s multi-employer citation policy, which, according to
NDC, is an unpromulgated agency rule or the product of imper-
missible agency policymaking, or both. Second, NDC asserts that
the ALJ erred in finding that NDC did not exercise reasonable dili-
gence.
After careful review, and with the benefit of oral argument,
we conclude that, under 29 U.S.C. § 660(a), NDC is barred from
raising its arguments concerning the validity of OSHA’s multi-em-
ployer citation policy and that the ALJ’s findings are supported by
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20-14484 Opinion of the Court 3
substantial evidence. Accordingly, we deny NDC’s petition for re-
view and affirm the ALJ’s decision.
I. FACTUAL BACKGROUND
A. The Construction Worksite and NDC’s Role as General
Contractor
NDC was the general contractor for a multiacre residential
construction project in Bradenton, Florida. The construction pro-
ject involved building fourteen structures, including multifamily
residential housing units.
As the general contractor, NDC managed the construction
worksite. While NDC had employees stationed at the worksite, its
employees did not perform the construction work. Instead, NDC’s
employees managed the construction process and oversaw various
subcontractors who performed the construction work.
NDC oversaw between thirty and forty subcontractors at
the height of construction. NDC neither trained subcontractors in
connection with worksite safety nor conducted its own safety-spe-
cific inspections. But NDC’s onsite employees conducted daily
worksite-walkthroughs and notified subcontractors, either by
phone or in writing, of worksite safety violations they happened to
observe.
Under the agreements NDC had with its subcontractors, the
subcontractors were required to provide NDC with a copy of their
safety manuals and to provide documentation of weekly safety
meetings. NDC also had the contractual authority to require
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4 Opinion of the Court 20-14484
subcontractors to abate safety violations within seventy-two hours
and NDC could “make the necessary corrections” if a safety hazard
was not abated by its subcontractors. And NDC could remove sub-
contractors and sub-subcontractors, as well as the subcontractors’
employees, from the worksite for safety violations.
B. OSHA Inspections
On April 5, 2017, two OSHA inspectors visited the worksite.
Upon entering the worksite, the OSHA inspectors observed four
fall-protection-related safety violations—i.e., violations of 29
C.F.R. § 1926.501(b)(13). 1 The OSHA inspectors later learned that
these safety violations involved workers that were employed by
NDC’s subcontractors or sub-subcontractors.
The first safety violation involved a worker who was “doing
sheeting work”—i.e., laying pieces of plywood—on the roof of a
building without “any kind of protection against a fall.” The sec-
ond safety violation involved a worker on a stepladder, on an open-
sided balcony without safety railings, who was not wearing a “per-
sonal fall arrest system.” The third safety violation involved two
workers on a one-story building that were working without fall
protection systems in place. And the fourth safety violation in-
volved a worker, who was not wearing a harness and who was not
1 As relevant to this case, under 29 C.F.R. § 1926.501(b)(13), “[e]ach employee
engaged in residential construction activities 6 feet (1.8 m) or more above
lower levels shall be protected by guardrail systems, safety net system, or per-
sonal fall arrest system. . . .”
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20-14484 Opinion of the Court 5
“tied off,” on a third-story balcony that did not have a safety railing
or safety net.
The OSHA inspectors reported these observations to NDC’s
on-site superintendent and manager, and an NDC employee in-
formed NDC’s subcontractors that OSHA was on-site. The OSHA
inspectors then walked around the worksite a second time and
spoke to various employees. During their second walkthrough, the
OSHA inspectors did not observe any additional safety hazards.
While many workers were no longer working during OSHA’s sub-
sequent walkthrough, the workers the OSHA inspectors did ob-
serve were either not working on elevated surfaces or were wear-
ing personal fall protection equipment. But, in talking to workers
at the worksite, the OSHA inspectors learned that workers “had
been working all day without fall protection” and “at no time did
they use fall protection.”
The OSHA inspectors returned to the worksite on April 7,
2017. They did not observe any safety violations during that in-
spection.
II. PROCEDURAL BACKGROUND
After further investigation, OSHA issued a citation and noti-
fication of penalty to NDC for the four violations of 29 C.F.R.
§ 1926.501(b)(13) that the OSHA inspectors observed. The citation
proposed a penalty of $8,873. Because NDC had failed to submit
documents to demonstrate that the violations were abated, OSHA
also requested proof of abatement. NDC contested the citation,
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6 Opinion of the Court 20-14484
and the case proceeded to trial to determine whether NDC was li-
able for the four safety violations.
A. Trial
At trial, NDC stated that “[u]nlike many, many contractors
that have come before this Commission . . . , [NDC is] not asking
you to destroy the multi-employer work site doctrine.” Instead,
NDC asserted that it acted in a reasonably diligent manner and
abated the relevant safety violations.
NDC’s employees testified that they notified their subcon-
tractors when they observed safety hazards at the worksite and
held meetings with subcontractors to discuss “any safety issues that
were brought up.” NDC’s employees further testified that all of
the safety hazards that they observed were immediately abated by
their subcontractors, including the safety violations OSHA identi-
fied. But NDC’s employees also testified that they did not always
follow up with subcontractors to ensure that safety hazards were,
in fact, abated. And NDC did not maintain records indicating that
the [s]afety violations were abated.
Evidence admitted at trial suggested that the fall-protection-
related safety violations arose before, and persisted after, the
OSHA inspections. For example, on several occasions leading up
to the OSHA inspections, NDC notified its subcontractors that bal-
conies did not have safety rails. And at a meeting held on April 11,
2017, approximately one week after the OSHA inspections, NDC
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notified its subcontractors that “[s]afety rails continue[d] to be in-
sufficient.”
B. The ALJ’s Decision
Following trial, the ALJ issued its decision and held that
NDC violated § 1926(b)(13) and that NDC could be held liable, as
a controlling employer under OSHA’s multi-employer citation pol-
icy, because NDC exercised supervisory control over the worksite
and its subcontractors. In so doing, the ALJ held that NDC had, at
least, constructive knowledge of the violations OSHA identified be-
cause the violations were “open and obvious.” And the ALJ held
that NDC did not exercise reasonable diligence. 2
As relevant to this case, the ALJ found that NDC did not take
reasonable measures to prevent safety violations at the worksite.
The ALJ noted that NDC was aware that certain subcontractors
frequently violated safety standards and that one of its subcontrac-
tors committed “repeated fall protection violations.” The ALJ fur-
ther found that NDC did not monitor or discipline these subcon-
tractors to prevent additional fall protection violations. And the
ALJ found that NDC never confirmed whether subcontractor em-
ployees “received fall protection training, or whether they had fall
2 NDC, in its petition for review, does not contest that it was a controlling
employer or that it had knowledge of the safety violations OSHA cited. In-
stead, NDC’s arguments pertain to whether it can be held liable as a control-
ling employer, because controlling employer liability is a by-product of
OSHA’s multi-employer citation policy, and whether NDC exercised reason-
able diligence.
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8 Opinion of the Court 20-14484
protection equipment” and that NDC largely relied on its subcon-
tractors to comply with OSHA safety standards despite knowledge
of their repeated violations.
The ALJ also found that NDC could have detected the rele-
vant safety violations, which were “open and obvious,” and that
“NDC did not ensure that fall hazards were abated immediately or
whether or not hazards were resolved at all.” While the ALJ
acknowledged that NDC conducted walkthroughs and notified
subcontractors of safety violations, the ALJ found that NDC did not
“believe that looking for safety issues was its responsibility” and
that, contrary to NDC’s assertions, certain fall hazards were not
abated. The ALJ further found that NDC did not keep track of
safety violations or abatement efforts.
The ALJ concluded that NDC did not effectively monitor for
safety violations and that NDC’s abatement efforts were ineffec-
tive. Based on these findings, the ALJ imposed a penalty of $7,986.
C. NDC’s Petition for Commission Review
NDC filed a petition for discretionary review under 29
C.F.R. § 2200.91. Specifically, NDC asked the Commission to re-
view five issues concerning whether the ALJ: (1) erred in finding
that NDC did not exercise reasonable diligence; (2) disincentivized
other general contractors from engaging in reasonable efforts to
ensure worksite safety; (3) erred in concluding that NDC was re-
quired to implement a “graduated system of enforcement” and dis-
cipline its subcontractors; (4) impermissibly expanded the duty
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20-14484 Opinion of the Court 9
owed by general contractors under OSHA’s multi-employer cita-
tion policy; and (5) erred in holding that OSHA did not need to
define “what would have constituted compliance for NDC.” But
NDC did not challenge the validity of OSHA’s multi-employer
worksite doctrine in its petition.
The Commission declined to review the ALJ’s decision.
Therefore, the ALJ’s decision became a final order of the Commis-
sion. See 29 U.S.C. § 661(j). This timely appeal followed.
III. STANDARD OF REVIEW
Commission “decisions are entitled to considerable defer-
ence on appellate review.” Fluor Daniel v. Occupational Safety &
Health Rev. Comm’n, 295 F.3d 1232, 1236 (11th Cir. 2002). “[T]he
legal determinations of an agency . . . are to be overturned only if
they are ‘arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with [the] law.’” Id. (alteration in original) (quot-
ing 5 U.S.C. § 706(2)(A)). And, under 29 U.S.C. § 660(a), “[t]he find-
ings of the Commission with respect to questions of fact, if sup-
ported by substantial evidence on the record considered as a whole,
shall be conclusive.” “Substantial evidence is more than a scintilla
and is such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.” J.A.M. Builders, Inc. v. Her-
man, 233 F.3d 1350, 1352 (11th Cir. 2000) (quoting Lewis v. Calla-
han, 125 F.3d 1436, 1440 (11th Cir.1997)).
IV. ANALYSIS
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10 Opinion of the Court 20-14484
On appeal, NDC asserts two arguments. First, NDC asserts
that it could not be held liable as a controlling employer under
OSHA’s multi-employer citation policy because the policy is an un-
promulgated agency rule or the product of impermissible agency
policymaking, or both. Second, NDC asserts that it exercised rea-
sonable diligence and that the ALJ failed to consider whether NDC
reasonably abated the safety violations. We consider NDC’s argu-
ments in turn.
A. 29 U.S.C. § 660(a) and NDC’s Arguments Concerning
OSHA’s Multi-Employer Citation Policy
OSHA’s multi-employer citation policy “provides guidance
to OSHA inspectors as to when it may be appropriate to cite a par-
ticular employer” for a violation of an OSHA safety standard at a
worksite with more than one employer. Acosta v. Hensel Phelps
Constr. Co., 909 F.3d 723, 737 (5th Cir. 2018) (citing Occupational
Safety & Health Admin., CPL 02-00-124, Multi-Employer Citation
Policy (1999)). NDC asserts that the policy is an invalid interpreta-
tion of 29 U.S.C. § 654(a)(2) and is the product of impermissible
agency rulemaking or an unpromulgated legislative rule, or both. 3
But under 29 U.S.C. § 660(a), “[n]o objection that has not
been urged before the Commission shall be considered by the
3 Under 29 U.S.C. § 654(a)(2), employers “shall comply with occupational
safety and health standards promulgated under this chapter,” which include
standards “reasonably necessary or appropriate to provide safe and healthful
employment and places of employment.” 29 U.S.C. §§ 652(8), 654(a)(2).
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20-14484 Opinion of the Court 11
court, unless the failure or neglect to urge such objection shall be
excused because of extraordinary circumstances.” Section 660(a)
thereby prevents parties from raising arguments in federal court
that were not raised before the Commission absent “extraordinary
circumstances.” Power Plant Div., Brown & Root, Inc. v. Occupa-
tional Safety & Health Rev. Comm’n, 659 F.2d 1291, 1295 (5th Cir.
Unit B 1981) 4 (“[Under] 29 U.S.C. § 660(a)[,] . . . issues raised for
the first time in the court of appeals shall not be considered.”), reh’g
granted and opinion modified, 673 F.2d 111 (5th Cir. Unit B 1982);
see also Am. Airlines, Inc. v. Sec’y of Labor, 578 F.2d 38, 41 n.7 (2d
Cir. 1978) (“The simple answer to the contention that the regula-
tion was improperly promulgated is that the objection was not
raised before the Commission. Accordingly, American has waived
its right to raise it here.”). “[I]n cases where the Commission de-
clines to review the ALJ decision,” appellate courts have “uni-
formly held that [they] lack jurisdiction over objections not raised
in the” petition for discretionary review. Frank Lill & Son, Inc. v.
Sec’y of Lab., 362 F.3d 840, 844 (D.C. Cir. 2004) (quoting A.J.
McNulty & Co. v. Sec’y of Lab., 283 F.3d 328, 332 (D.C. Cir. 2002)).
Thus, before we can address the merits of NDC’s argu-
ments, we must ensure that NDC either raised these arguments in
4 Decisions issued by Unit B of the former Fifth Circuit are binding precedent
in the Eleventh Circuit. Stein v. Reynolds Secs., Inc., 667 F.2d 33, 34 (11th Cir.
1982).
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12 Opinion of the Court 20-14484
its petition for discretionary review or that NDC’s failure to do so
was “excused because of extraordinary circumstances.” § 660(a).
1. Whether NDC Raised its Arguments in its Petition for Dis-
cretionary Review
As noted, NDC raised five issues in its petition for discretion-
ary review. The validity of OSHA’s multi-employer citation policy
was not one of those five issues. NDC, however, asserts that the
issue it raised concerning OSHA’s “failure to define what would
have constituted compliance for NDC under the circumstances and
how NDC’s conduct was deficient” sufficiently alerted the Com-
mission that NDC was challenging the validity of the multi-em-
ployer citation policy. But that argument was specific to the con-
tours of the duty owed by general contractors—i.e., NDC argued
that OSHA failed to identify “how often NDC should [have] in-
sepct[ed] its subcontractors,” the “limits of NDC’s responsibility
over its subcontractors,” and “what consequences a general con-
tractor must hand down in order to entitle itself to a defense against
multi-employer liability.” NDC did not assert that OSHA’s multi-
employer citation policy was itself invalid or that NDC could not
be held liable for violating an OSHA standard in its capacity as a
controlling employer or general contractor.
Indeed, NDC’s petition did not address OSHA’s interpreta-
tion of § 654(a)(2) or the procedural validity of the multi-employer
citation policy. And throughout the proceedings below, NDC
maintained that it did “not desire to litigate the validity of the mul-
tiemployer doctrine.” We cannot ignore these assertions and
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20-14484 Opinion of the Court 13
interpret the five issues that NDC did raise in a manner that is not
supported by NDC’s petition. See Power Plant Div., 659 F.2d at
1295 (holding that the Court would not review “[f]undamental le-
gal questions” not raised before the Commission “particularly . . .
where, as here, a party has affirmatively misled the Commission as
to its position on an issue”); see also United States v. Ross, 131 F.3d
970, 988 (11th Cir. 1997) (“It is ‘a cardinal rule of appellate review
that a party may not challenge as error a ruling or other trial pro-
ceeding invited by that party.’” (quoting Crockett v. Uniroyal, Inc.,
772 F.2d 1524, 1530 n.4 (11th Cir. 1985))). Therefore, we conclude
that NDC failed to raise its arguments concerning the validity of
OSHA’s multi-employer citation policy in its petition for discre-
tionary review.
2. Whether NDC’s Failure to Raise its Arguments is Excused
Because of Extraordinary Circumstances
Because NDC failed to raise its arguments concerning the
validity of OSHA’s multi-employer citation policy before the Com-
mission, we can only review NDC’s arguments if “the failure or
neglect” was “excused because of extraordinary circumstances.”
§ 660(a). NDC contends that it did not raise arguments concerning
the validity of the multi-employer citation policy in its petition be-
cause 29 C.F.R. § 2200.91(d)— the regulation concerning petitions
for discretionary review—prevented it from raising these argu-
ments. Specifically, NDC asserts that “the Commission’s own rules
of procedure forbid the incorporation of legal memorandum or
briefs into Petitions for Discretionary Review.”
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14 Opinion of the Court 20-14484
Resolution of this case does not require us to decide whether
the Commission’s rules of procedure may constitute extraordinary
circumstances because § 2200.91(d) did not prevent NDC from rais-
ing its arguments. While NDC is correct that petitions should not
“incorporate by reference a brief or legal memorandum,”
§ 2200.91(d) only prevents petitioners from relying on a separate
“brief or legal memorandum” to support an issue or argument.
NDC was not prohibited from objecting to the legal validity of
OSHA’s multi-employer citation policy directly in its petition for
discretionary review. Indeed, § 2200.91(d) directs petitioners to
“state . . . [w]hether the [ALJ’s] decision raises an important ques-
tion of law” or whether the “decision is contrary to law.”
Because NDC has failed to satisfy its burden to show that
extraordinary circumstances excused its failure to raise them, we
cannot consider the arguments NDC has made with respect to the
validity of OSHA’s multi-employer citation policy. 5 See § 660(a);
see, e.g., L.R. Willson & Sons, Inc. v. Occupational Safety & Health
5 The National Association of Home Builders and the Associated General Con-
tractors of America (together “NAHB”) filed an amicus brief in support of
NDC. Together with NDC, they have raised strong arguments that OSHA’s
multi-employer citation policy is invalid. But for the reasons stated in this sec-
tion, § 660(a) prevents us from considering those arguments in this case.
NAHB has also asserted that NDC made reasonable efforts, as a con-
trolling employer, to comply with OSHA’s safety standards. But, as noted in
the next section of this opinion, we conclude that the ALJ’s findings concern-
ing reasonable diligence are supported by substantial evidence on the record
as a whole.
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Rev. Comm’n, 134 F.3d 1235, 1241 (4th Cir. 1998) (“[Section] 660(a)
clearly states that, ‘[n]o objection that has not been urged before
the Commission shall be considered . . . , unless the failure or ne-
glect to urge such objection shall be excused because of extraordi-
nary circumstances.’ . . . Therefore, having found no extraordinary
circumstances to excuse this omission, we hold that the fine cannot
properly be considered here.” (quoting § 660(a)).
B. Reasonable Diligence
Assuming a controlling employer can be held liable for vio-
lating 29 C.F.R. § 1926.501(b)(13) under OSHA’s multi-employer
citation policy—an issue we cannot address in this case pursuant to
§ 660(a)—the parties agree that a controlling employer is “reason-
ably . . . expected to prevent or detect and abate the violations due
to its supervisory authority and control over the worksite.” Cen-
tex-Rooney Constr. Co., 16 OSHC 2127, 1994 WL 682931, at *2
(No. 92-0851); accord Suncor Energy (U.S.A.) Inc., 2019
OSHD 33705, 2019 WL 654129, at *4 (No. 13-0900) (same). In
other words, the parties agree that, under the Commission’s prec-
edents, a controlling employer must exercise reasonable care to ei-
ther prevent or detect and abate safety violations.
The ALJ found that NDC did not exercise reasonable care as
a controlling employer. In this petition for review, NDC asserts
that there is sufficient evidence of “NDC’s efforts to prevent viola-
tions” and that its efforts “to abate violations committed by sub-
tiers were ‘sufficiently persistent,’ realistic, practical and
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16 Opinion of the Court 20-14484
reasonable.” NDC further asserts that the ALJ did not consider
“whether NDC took reasonable measures to obtain abatement.” 6
Our analysis of whether the ALJ erred in finding that NDC
failed to exercise reasonable care proceeds in two steps. First, we
consider whether NDC exercised reasonable care to prevent the
safety violations. Second, we consider whether NDC exercised rea-
sonable care to detect and abate the safety violations. 7
Under § 660(a), our analysis is specific to whether the ALJ’s
factual findings, which were adopted by the Commission, “are sup-
ported by substantial evidence on the record as a whole.” J.A.M.
Builders, 233 F.3d at 1352 (applying this standard to an ALJ’s deci-
sion, which became the Commission’s final order after the Com-
mission declined the petitioner’s request to review); see Fla.
Lemark Corp. v. Sec’y, U.S. Dep’t of Lab., 634 F. App’x 681, 685 n.
3 (11th Cir. 2015) (“Because the Commission declined review, the
6 NDC also asserts that the ALJ erred by transforming the duty NDC owed—
i.e., NDC was reasonably expected to prevent or detect and abate the viola-
tions—into a conjunctive obligation, such that NDC was required to prevent
and detect and abate the violations. NDC further asserts that “[w]hen a con-
trolling employer has knowledge of a subcontractor’s safety violations,” the
analysis should focus only on whether the controlling employer took “reason-
able measures to obtain abatement.” Like NDC’s argument with respect to
the validity of OSHA’s multi-employer citation policy, NDC failed to raise
these specific issues in its petition for discretionary review. Therefore, we will
not address these specific arguments on appeal. See § 660(a).
7 Contrary to NDC’s assertion, the ALJ did consider whether NDC abated the
safety violations.
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20-14484 Opinion of the Court 17
ALJ’s order became the final order of the Commission. . . . There-
fore, we review the ALJ’s decision under the same standards as we
would a decision issued by the Commission.”). If so, we must af-
firm the conclusions reached by the ALJ. See Fluor Daniel, 295
F.3d at 1240–41.
1. Whether NDC Exercised Reasonable Care to Prevent the
Safety Violations
The ALJ found that NDC did not exercise reasonable dili-
gence in preventing safety hazards at the worksite. NDC asserts
that the ALJ’s findings are not supported by substantial evidence
because NDC sought to prevent safety violations by monitoring
the worksite and by immediately “call[ing] . . . any offending sub-
contractor whenever violations were discovered.”
We find that the ALJ’s findings are supported by “substantial
evidence on the record considered as a whole.” § 660(a). NDC’s
employees testified that they did not specifically monitor for com-
pliance with safety standards when they walked around the
worksite. Moreover, the record suggests that NDC observed fall-
protection-related safety violations “a couple times a week,” and
the record is devoid of the measures NDC took to prevent those
violations from occurring.
While NDC notified subcontractors of the safety violations
NDC observed, that was not a measure to prevent—i.e., “[t]o an-
ticipate or act in advance,” Prevent, OXFORD ENGLISH DICTIONARY
(3d ed. 2007)—a violation from occurring. The record also
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18 Opinion of the Court 20-14484
suggests that NDC’s employees discussed safety issues at meetings
with NDC’s subcontractors. But those discussions appear to have
concerned safety issues that had already occurred or that were on-
going, such as the lack of safety rails on balconies. The record does
not suggest that NDC’s employees discussed preventing future
safety violations at its meetings with subcontractors.
Given the quantum of evidence, the ALJ reasonably con-
cluded that NDC did not exercise reasonable diligence to prevent
the safety violations before they occurred. See Fluor Daniel, 295
F.3d at 1241 (holding that the Commission’s determination was
supported by substantial evidence where the petitioner offered “no
reason” for this Court to hold that the Commission erred and the
testimony supported the Commission’s findings).
2. Whether NDC Exercised Reasonable Care to Detect and
Abate the Safety Violations
The ALJ also found that NDC could have, but did not, detect
the safety violations and that NDC “did not ensure that fall hazards
were abated immediately or whether or not hazards were resolved
at all.” NDC, however, contends that it acted reasonably because
NDC’s employees walked around the worksite daily and notified
its subcontractors of safety violations. NDC further contends that
the subcontractors immediately abated those violations, including
the violations the OSHA inspectors observed. But NDC’s argu-
ments fail for two reasons.
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20-14484 Opinion of the Court 19
First, “[t]he substantial evidence standard limits the review-
ing court from ‘deciding the facts anew, making credibility deter-
minations, or re-weighing the evidence.’” Stone & Webster Con-
str., Inc. v. U.S. Dep’t of Lab., 684 F.3d 1127, 1133 (11th Cir. 2012)
(quoting Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)).
And here, the ALJ found that NDC’s assertion that the subcontrac-
tors abated all safety violations immediately, including the cited
safety violations, was not credible.
The ALJ’s determination was based on testimony from
NDC’s employees that, while the employees believed NDC’s sub-
contractors abated the safety violations they observed, they did not
confirm whether the subcontractors, in fact, abated the violations.
Moreover, at trial, NDC did not present evidence to show that the
safety violations were, in fact, abated, and the evidence that was
presented showed that the types of fall protection safety violations
OSHA observed occurred before, and persisted after, the OSHA in-
spections. In light of this testimony and evidence, we conclude that
substantial evidence—i.e., “such relevant evidence as a reasonable
person would accept as adequate,” J.A.M. Builders, 233 F.3d at 1352
(quoting Lewis, 125 F.3d at 1440)—supports the ALJ’s credibility
determination, and we cannot make our own “credibility determi-
nations, or re-weigh[] the evidence.” Stone & Webster Constr.,
684 F.3d at 1133; see Fla. Lemark Corp., 634 F. App’x at 686 (“Sub-
stantial evidence supports the ALJ’s determination that a hazard
existed at the worksite. . . . The ALJ reasonably relied on Ayub’s
testimony[, and] . . . “[i]n crediting Ayub’s testimony, the ALJ also
USCA11 Case: 20-14484 Date Filed: 06/30/2022 Page: 20 of 21
20 Opinion of the Court 20-14484
reasonably relied on the lack of credible evidence contradicting
it.”).
Second, under Commission precedents NDC owed a duty
to exercise reasonable care to detect and abate the violations under
the circumstances. See, e.g., Centex-Rooney Constr., 16 OSHC
2127, 1994 WL 682931, at *2; Suncor Energy, 2019 OSHD 33705,
2019 WL 654129, at *4. Under the circumstances of this case, the
ALJ found that it was not reasonable for NDC to solely rely on no-
tifying subcontractors of safety violations in order to abate the vio-
lations. And that finding is adequately supported by the record.
The record shows that NDC repeatedly notified its subcon-
tractors in connection with the same fall protection violations and
that these violations occurred before, and persisted after, the
OSHA inspections. The record also demonstrates that the relevant
safety violations were in plain sight and that NDC had the contrac-
tual authority to both compel its subcontractors to abate safety vi-
olations and to abate the violations itself.
Based on the record, NDC should have known that its sub-
contractors were not abating the safety violations and that NDC
reasonably could have, but did not, take any other measures to
abate them. Cf. Cent. of Ga. R.R. Co. v. Occupational Safety &
Health Rev. Comm’n, 576 F.2d 620, 625 (5th Cir. 1978) 8 (“An
8 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
we adopted as binding precedent all Fifth Circuit decisions issued before Oc-
tober 1, 1981.
USCA11 Case: 20-14484 Date Filed: 06/30/2022 Page: 21 of 21
20-14484 Opinion of the Court 21
employer may carry out its statutory duties through its own private
arrangements with third parties, but if it does so and if those duties
are neglected, it is up to the employer to show why he cannot en-
force the arrangements he has made. If he cannot make this show-
ing, he must take the consequences. . . .”). Substantial evidence
therefore supports the ALJ’s conclusion because “the violative con-
ditions were in plain view, they had existed for a significant period
of time before the . . . inspection[s], and [NDC] could have ascer-
tained their existence” and abated them “through the exercise of
reasonable diligence.” See Centex-Rooney, 16 OSHC 2127, 1994
WL 682931, at *2; cf. Edwin Taylor Corp. v. U.S. Dep’t of Lab., 814
F. App’x 498, 502 (11th Cir. 2020) (“Given the quantum of evidence,
the ALJ could reasonably conclude that [petitioner] willfully vio-
lated the fall protection regulations[, where] the ALJ relied on tes-
timony from [petitioner’s] employees showing that they knew of
the fall protection regulations required for greater than six-foot fall
risks yet disregarded that risk at its worksite.”). Because the ALJ’s
findings are supported by substantial evidence, “we are bound by
the [ALJ’s] determination[s].” See Fluor Daniel, 295 F.3d at 1240.
V. CONCLUSION
For the reasons stated, we deny NDC’s petition for review
and affirm the ALJ’s decision.
PETITION DENIED, AFFIRMED.