                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS           April 20, 2004
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                        _____________________                     Clerk

                             No. 03-60642
                           Summary Calendar
                        _____________________

                    AUSTIN BRIDGE & ROAD INC.,

                             Petitioner,

                               versus

         OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;
            ELAINE CHAO, SECRETARY, DEPARTMENT OF LABOR,

                           Respondents.
_________________________________________________________________

                       Petition for Review:
          Occupational Safety & Health Review Commission
                         Cause No. 02-0983
_________________________________________________________________

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1

PRADO, Circuit Judge.

     In this appeal, the petitioner, Austin Bridge & Road, Inc.

(Austin Bridge), challenges a decision by Occupational Safety and

Health Review Commission (the Commission).      In the decision, the

Commission determined Austin Bridge violated section

1926.550(b)(2) of the Occupational Safety and Health Act (the

Act), and assessed a penalty of $4,500.00.      After considering the


     1
      Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

                                  1
parties’ arguments on appeal, this Court affirms the Commission’s

decision.

                         Factual Background

     This appeal arises from a construction accident involving

the over-loading of a crane during an attempt to move a large

concrete beam.    Austin Bridge used the crane to lift a beam which

weighed thousands of pounds more than the crane could sustain.

At the time of the incident, Austin Bridge did not know the

actual weight of the beam.    But as the crane hoisted the beam

from the ground, the beam swung out and caused the crane to

overturn.

     After investigating the accident, the Secretary of Labor

(the Secretary) issued a citation against Austin Bridge for

violating the OSHA by exceeding the rated load capacity of the

crane.    Austin Bridge contested the citation, and the Commission

conducted a hearing.    After the hearing, the administrative law

judge (ALJ) determined Austin Bridge failed to act with

reasonable diligence by not ascertaining the actual weight of the

beam.    The ALJ found the circumstances surrounding the particular

lift placed Austin Bridge on notice that the beam was likely to

be too heavy for the single crane.    Austin Bridge challenges that

determination in this appeal.

                         Standard of Review

        This Court reviews the Commission’s findings of fact under


                                  2
a substantial evidence standard, affording deference to the ALJ’s

determination upon hearing the evidence.2   This Court is “bound

by the ALJ’s findings of fact, including his judgments of

credibility supporting those facts, if they are supported by

substantial evidence on the record considered as a whole.”3     A

reviewing court upholds an ALJ’s properly supported findings of

fact, even if that particular reviewing court would reach a

different result de novo.4   A substantial evidence inquiry

employs an objective standard.   “For factual determinations, the

Supreme Court has defined substantial evidence as ‘such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion.’”5   This Court regards questions of law with a

similarly deferential standard to the ALJ and Commission’s

decisions.   This Court can only overturn a Commission’s

conclusions of law if those conclusions are “arbitrary,

capricious, and abuse of discretion or otherwise not in




     2
      See 29 U.S.C. § 655(f); Cleveland Consol., Inc. v.
Occupational Safety and Health Review Comm’n, 649 F.2d 1160, 1167
(5th Cir. 1981).
     3
      Cleveland Consol., 649 F.2d 1160 at 1167.
     4
      See id.
     5
      Nat’l Grain and Feed Ass’n v. Occupational Safety and
Health Admin., 866 F.2d 717, 728 (5th Cir. 1989), citing Indus.
Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 641-
642 (1980).

                                 3
accordance with the law.”6

    Whether Austin Should Have Known the Crane Was Overloaded

     On appeal, Austin Bridge maintains the ALJ improperly

allocated the burden of proof in determining whether Austin

Bridge violated the OSHA.    In particular, Austin Bridge contends

the ALJ focused on facts Austin Bridge failed to prove rather

than on what the Secretary actually proved.

     Section 1926.550(b)(2) of the OSHA provides that “[a]ll

crawler, truck, or locomotive cranes in use shall meet the

applicable requirements for design, inspection, construction,

testing, maintenance, and operation as prescribed in the ANSI

B30.5-1968, Safety Code.”7   To comply with this section, “[n]o

crane shall be overloaded beyond the rated load.”8   To prove a

violation of these crane use regulations, the Secretary had to

prove (1) the cited standard applied, (2) there was a failure to

comply with the cited standard, (3) employees had access to the

violative condition, and (4) the cited employer either knew or

could have known of the condition with the exercise of reasonable

diligence.9   Because the first three elements of a violation are

     6
      See Trinity Marine Nashville, Inc. v. OSHRC, 275 F.3d 423,
426-27 (5th Cir. 2001).
     7
      29 C.F.R. § 1926.550(b)(2)(2003).
     8
      ANSI B30.5-1968 Safety Code for Crawler, Locomotive and
Truck Cranes ¶ 5-3.2.1a.
     9
      See Walker Towing Corp., 14 BNA OSHC 2072, 2074, No. 87-
1359, 1991-93 CCH OSHD ¶ 29239 (Feb. 15, 1991).

                                  4
not disputed on appeal, this Court must consider whether

substantial evidence supports the ALJ’s determination that Austin

Bridge should have investigated the exact weight of the beam

before attempting the lift and whether the ALJ’s conclusion that

Austin Bridge violated safety regulations was arbitrary and

capricious.    After reviewing the evidence, the Court concludes

substantial evidence supports the ALJ’s determination that

circumstances placed Austin Bridge on notice of the crane’s over-

loaded condition and that Austin Bridge should have investigated

the weight of the concrete.

     During the hearing on the violation, the Secretary’s expert,

Leon Johnson, testified that in calculating the weight of

construction beams, an exact weight cannot be determined because

“no one is quite sure just how much of what particular aggregate

content of the concrete is in there, how much rebar is actually

in there, and whether they maintained their closeness to

tolerances.”   Johnson explained that a person working within the

construction industry would know that these calculated weights

are not the exact weight of the beam.    Johnson also testified

that the crane’s lifting capacity was 78,860 pounds.    He

explained that based on the calculated weight of the beam and the

weight of the rigging used during the lift, the total calculated

weight of the lift was just over 98 percent of what the crane

could sustain.    Johnson opined that an employer who determines a

planned lift was within 98 per cent of the maximum capacity of

                                  5
the crane should “make sure he knows exactly what the load is to

weigh and he needs to know that the crane is exactly level and,

if the crane has to travel, will travel on a level roadbed or a

level mats [sic] and making sure that within – when you’re that

close to 100-percent capacity, everything has got be just exactly

right.”   Johnson estimated the crane was 102 per cent overloaded

when the lift began and that the overloading increased as the

crane swung the beam towards the lifted position.

     Douglas Walker, a crane operator dispatched to the Austin

Bridge job site, confirmed Johnson’s testimony about the weight

of beams.   Walker testified that beams often weigh more than even

the manufacturing estimate states.   Walker stated that he does

not normally rely on the manufacturer’s estimate of beam weight

because “we don’t take the risk on our cranes up to the maximum

capacity.   We leave ourself [sic] a little bit of cushion there

because we know that those weights can vary.”

     In addition, Mike Pettit, an engineering manager for Austin

Bridge, testified that prior to the accident, he estimated the

weight of the beam as 74,000 pounds.10   When questioned by the

ALJ, Pettit admitted that although a bill of lading is usually

delivered with a beam, he did not rely on the bill of lading to

calculate the weight of the beam.    Pettit agreed that it would be


     10
      The way bill of lading, obtained by Austin Bridge after
the accident, indicated the beam weighed 77,690; the beam
actually weighed a little over 78,000 pounds.

                                 6
prudent to look at a bill of lading that reflected the actual

weight of a beam.     Pettit testified, however, that he did not

think it unusual to calculate a beam’s weight without looking at

a bill of lading.

     Based on the testimonies of these witnesses, a reasonable

mind could accept the ALJ’s conclusion that Austin Bridge was on

notice that further investigation into the true weight of the

beam was necessary.11     The evidence shows the calculated weight

was dangerously close to the crane’s maximum capacity.       Although

Austin Bridge claims the ALJ improperly placed the burden upon it

to disprove the Secretary’s assertions that due diligence could

have produced discovery of the under-estimated weight, the

evidence at the hearing conclusively showed Austin Bridge made no

attempt to find the true weight of the beam prior to the lift.

Austin Bridge relied solely on the lift plan, even after this

plan involved a mere two percent margin of error for the crane’s

capacity.

     Testimony from all witnesses involved in the construction

project stated that bills of lading usually accompany these beams

upon delivery.     The evidence indicates these bills of lading

contain the manufacturer’s calculated weight.     Testimony

concerning the way bill, a type of bill of lading from the

supplier, explained that these bills of lading contain the actual


     11
          See Nat’l Grain and Feed Ass’n, 866 F.2d at 728.

                                   7
weight of the beam.     Thus, the evidence at trial established the

availability of information about the true weight of the beam had

Austin Bridge attempted to investigate.

     Even though the ALJ referred to a witness that Austin Bridge

“failed to call,” the ALJ observed the Secretary’s burden to

establish that due diligence would have produced this

information.     The Secretary met this burden by proving a lack of

certain behaviors that the ALJ agreed a reasonable employer is

expected to assert, such as attempting to locate the missing

bills or otherwise “ascertain the accuracy of the engineered

weight.”     The language used in the ALJ’s opinion, citing this

lack on Austin Bridge’s part, merely pointed out Austin Bridge’s

lack of rebuttal evidence, rather than mis-allocating the

Secretary’s burden of proof.     Thus, substantive evidence supports

the ALJ’s determination that due diligence by Austin Bridge

required finding the true weight of the beam.12     Because

substantial evidence supports the ALJ’s findings of notice and

lack of due diligence on the part of Austin Bridge, the ALJ’s

conclusion that Austin Bridge violated OSHA was therefore not

arbitrary or capricious.13     For these reasons, the Court AFFIRMS

the decision of the Commission.

AFFIRMED.

     12
      See 29 U.S.C. § 655(f); Walker Towing Corp., 14 BNA OSHC
at 2074.
     13
          See Trinity Marine Nashville, 275 F.3d at 426-27.

                                   8
9
