                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _________________

                                     No. 17-3748
                                  _________________

                               FRANCIS J. PALO, INC.,
                                             Petitioner

                                            v.

            SECRETARY UNITED STATES DEPARTMENT OF LABOR,
                                             Respondent
                           _________________

                  Petition for Review of an Order of the Occupational
                         Safety and Health Review Commission
                                 (OSHRC No. 15-2239)
                   Administrative Law Judge: Carol A. Baumerich
                                  _________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                September 25, 2018

               Before: MCKEE, RESTREPO, FUENTES, Circuit Judges

                                   (Filed: July 5, 2019)

                                  _________________

                                      OPINION**
                                  _________________




**
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge.

       Francis J. Palo, Inc. has filed a petition with this Court to review the Occupational

Safety and Health Review Commission’s1 determination that Palo violated its workplace

safety guidelines. Because we find that substantial evidence supports the Commission’s

finding, we will deny the petition for review.

                                            I.

       Palo is in the business of demolishing and constructing bridges. It held a contract

from the Pennsylvania Department of Transportation to demolish and reconstruct a bridge

in Ridgeway, Pennsylvania. This bridge had an arched shape, and Palo’s proposed

reconstruction plan—reviewed and approved by the Department of Transportation—called

for Palo to demolish and rebuild the bridge in halves, allowing traffic access to one half

while Palo rebuilt the other. Palo’s plan included a statement that “[a]t no time during the

demolition process will men or equipment work on or from the component being

demolished.” It did not specify what equipment it intended to use.

       Palo’s strategy proceeded by first cutting the bridge in half longways, then cutting

the first half of the bridge away from the abutments on either end of the bridge. While

doing this, Palo parked a Caterpillar excavator on the half of the bridge being demolished.

The excavator weighed over 90,000 pounds.2


1
  The Commission, an agency within the Department of Labor, is represented by the
Secretary of the Department of Labor. For consistency with the administrative
proceedings, the Court here will refer to the Respondent as the “Commission.”
2
  The administrative law judge found that the excavator weighed over 90,000 pounds but
did not make a finding as to the specific weight. Parties assert that it weighs
approximately 101,800 pounds.
                                             2
       When Palo had finished both the horizontal and vertical cuts on one end of the

bridge, and had almost completed the cuts on the other side, that first half of the bridge

collapsed from its center. The excavator and two workers fell with the collapsing half.

Two workers below the bridge also sustained injuries.

       The Commission began an investigation after the accident. It concluded that Palo

had violated Commission guidelines by parking the excavator on the bridge without

ensuring the bridge had sufficient strength to support it.

       Palo contested the citation, and an administrative law judge held a hearing on the

issue. Palo contended that it had lacked the requisite knowledge of the violation.

       At the hearing, the administrative law judge heard evidence from the Commission’s

expert, Mohammad Ayub. Ayub testified that, because the bridge was arched, its structure

directed its load to its supporting abutments. When the bridge half was cut free from the

abutments on either end, the half could no longer bear as much weight as it could before.

The bridge was no longer strong enough to support the heavy excavator and collapsed

under its weight. Ayub further testified that a reasonably experienced contractor should

have known that the bridge’s structural behavior would change when it was cut free of its

abutments, and that a reasonably diligent contractor would have conducted an analysis to

determine whether the bridge could sustain the excavator’s weight before parking it.

       Palo executives at the hearing testified that Palo had not requested any inspection

reports or documentary information from the Pennsylvania Department of Transportation

prior to developing its demolition plan. Executives also testified that they had not

undertaken an external engineering analysis in preparing the demolition plan and had not

                                              3
analyzed whether the bridge could hold the excavator. They testified that they reasonably

relied on their experience in concluding the partially-demolished bridge could support the

excavator. However, the Palo employee responsible for developing the demolition plan

had only limited experience with arch-shaped bridges, and had thought the bridge’s arch

was decorative, not structural. That employee also testified that he had reasonably assumed

that the bridge was reinforced with industry-standard rebar, and only after the bridge

collapsed discovered that the bridge, built in 1912, had less rebar than expected. Ayub

testified in response that, even if the bridge had rebar conforming to current engineering

standards, its load-bearing capacity would still have been compromised when Palo cut the

bridge from its abutments.

         After hearing testimony, the administrative law judge concluded that Palo failed to

engage in reasonably diligent efforts to assess the strength of the bridge. The judge found

that “an experienced demolition and construction contractor should not have placed

mechanical equipment like the [excavator] on the bridge without conducting an

engineering analysis to ascertain whether the bridge could take the load after the abutments

were cut.”3 The administrative law judge found that the information Palo possessed from

the Pennsylvania Department of Transportation did not support Palo’s decision to park the

excavator on the bridge, and Palo’s reliance on its pre-site survey and employee experience

did not overcome its failure to obtain sufficient information.




3
    App. 36.
                                              4
       Palo appealed the administrative law judge’s ruling to the full Commission, which

declined to undertake a discretionary review, and the administrative law judge’s order

became final. Palo appealed that final order to this Court.4

                                           II.

       The Court reviews the Commission’s findings of fact for substantial evidence.5

Substantial evidence is “more than a mere scintilla” and “means such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.”6 If such substantial

evidence exists, then the Court must affirm the Commission’s interpretation of the evidence

even if the Court “might have interpreted the evidence differently in the first instance.”7

       The Court reviews questions of law under an arbitrary and capricious standard. It

reverses the Commissions legal conclusions only when they are “arbitrary, capricious, and

an abuse of discretion or otherwise not in accordance with the law.”8

       To establish the violation of a standard, the Commission must show by a

preponderance of the evidence that (1) the standard applied; (2) the employer failed to

comply with it; (3) employees had access to the violative condition; and (4) the employer

knew or should have known of the condition through the exercise of reasonable diligence.9

Here, the Secretary found that Palo violated the regulation found at 29 C.F.R § 1926.856(a),


4
  All of Palo’s appeals were timely. This Court has jurisdiction over this appeal pursuant
to 29 U.S.C. § 660(a).
5
  Bianchi Trison Corp. v. Chao, 409 F.3d 196, 204 (3d Cir. 2005).
6
  Balsavage v. Dir., Office of Workers’ Comp. Programs, 295 F.3d 390, 395 (3d Cir.
2002).
7
  Id. at 395.
8
  Sec’y of Labor v. Trinity Indus., 504 F.3d 397, 400 (3d Cir. 2007).
9
  Sec’y of Labor v. ConocoPhil. Bayway Refinery, 654 F.3d 472, 479-80 (3d Cir. 2011).
                                              5
which states that “[m]echanical equipment shall not be used on floors or working surfaces

unless such floors or surfaces are of sufficient strength to support the imposed load.” Of

the four requirements, only the last—whether Palo knew or should have known about the

condition—is at issue in this appeal.10

       The Secretary must show Palo had actual or constructive knowledge of the issue.11

To show constructive knowledge, the Secretary must show that Palo, “with the exercise of

reasonable diligence, should have known about the conditions constituting the violation.”12

       The administrative law judge had substantial evidence before her to conclude that

Palo had constructive knowledge of the issue. Palo executives testified that they knew and

approved the use of the excavator on the bridge. They also testified that they knew the

demolition project would require Palo to cut the bridge from its abutments. They knew

also that the excavator’s weight was an important factor to consider when deciding to use

it. Palo, however, did not take any actions to determine whether the bridge could support

the excavator’s weight after the bridge was cut free of the abutments. The administrative


10
   Palo also argues on appeal that the cited standard does not apply, because Palo was not
operating the excavator when the bridge collapsed—it was not “using” the excavator.
Palo did not raise this issue in its initial appeal of the administrative judge’s decision to
the Commission. It is therefore waived. See 29 U.S.C. § 660(a) (“No objection that has
not been urged before the Commission shall be considered by the court [of appeals],
unless the failure or neglect to urge such objection shall be excused because of
extraordinary circumstances.”). Even if it were not waived, however, it would, in any
event, be inapposite. There is no question that the excavator was operated on the bridge
at some point, even if it was not in use at the time the bridge collapsed. The violation is
for using the excavator on a surface that could not support it; not for causing the bridge to
collapse via the excavator.
11
   Pa. Power & Light Co. v. OSHRC, 737 F.2d 350, 354 (3d Cir. 1984).
12
   Sec’y of Labor v. Cent. Fla. Equip Rentals., Inc., 25 BNA OSHC 2147, 2155 2016 WL
4088876 at *8 (No. 08-1656, 2016).
                                              6
judge was also entitled to credit Ayub’s testimony that a reasonable demolition contractor

would know the bridge’s structural behavior would change when it was cut from its

abutments and would know that it could limit the bridge’s ability to support the excavator.13

       Taken together then, substantial evidence exists to support the administrative law

judge’s finding that Palo could have discovered through reasonable diligence that the

bridge would not support the excavator’s weight.

       Separate from the substantive merits of the appeal, Palo also argues that the

administrative law judge committed certain errors in handling evidence during the hearing.

We review this issue under an abuse of discretion standard.14 Palo asserts first that the

administrative law judge allowed the Commission to object to the introduction of certain

evidence, even though the Commission had not previously listed this objection in a

submission made pursuant to the administrative law judge’s scheduling order. Palo also

contests the administrative law judge’s decision to accord little weight to statements made

in parties’ Joint Exhibit 2.

       As to Joint Exhibit 4, even if the administrative law judge did err in admitting the

document, Palo has failed to show how it was prejudiced by that action.15 Palo states

broadly that “counsel prepared for a matter based upon rulings established by a judge,”16



13
   See St. George Warehouse, Inc. v. NLRB, 420 F.3d 294, 298 (3d Cir. 2005) (“[T]he
ALJ’s credibility determinations should not be reversed unless inherently incredible or
patently unreasonable.”).
14
   Bianchi Trison Corp. v. Chao, 409 F.3d 196, 212-13 (3d Cir. 2005).
15
   See id. (holding that administrative law judge did not abuse discretion in failing to
follow own scheduling order where there was no prejudice).
16
   Pet’r Br. at 32.
                                             7
but fails to state how Joint Exhibit 4 would have affected the outcome of the proceeding.

As Palo itself states, the administrative law judge admitted Joint Exhibit 2 into evidence,

which “reflect[ed] what was essentially contained in the notes making up Exhibit 4.”17

Without a showing of prejudice, Palo’s petition cannot be sustained.

         Palo also contests the administrative law judge’s decision to accord little weight to

Joint Exhibit 2. The administrative law judge, however, fully explained her reasons for

doing so in footnote 11 of her decision. The administrative law judge found that the

statements found in Exhibit 2 were not corroborated at trial and did not address the issue

of whether Palo engaged in reasonable diligence. While Palo surely disagrees with the

administrative law judge as to the exhibit’s importance, it does not show why this reasoning

was an abuse of discretion. The Court therefore sees no reason to disturb the administrative

law judge’s handling of either Exhibit 4 or Exhibit 2.

                                            III.

         For the foregoing reasons, we will dismiss Palo’s petition for review.




17
     Pet’r Reply at 2 n2.
                                               8
