
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1807                               P. GIOIOSO & SONS, INC.,                                     Petitioner,                                          v.           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION AND CYNTHIA A.          METZLER, ACTING SECRETARY OF LABOR,                                     Respondents.                              _________________________                          PETITION FOR REVIEW OF AN ORDER OF                 THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                      Coffin and Bownes, Senior Circuit Judges.                                         _____________________                              _________________________               Richard  D. Wayne,  with whom  Lisa Schneider  and Hinckley,               _________________              ______________      _________          Allen & Snyder were on brief, for petitioner.          ______________               Barbara A.W. McConnell, with  whom J. Davitt McAteer, Acting               ______________________             _________________          Solicitor of Labor, Joseph  M. Woodward, Associate Solicitor, and                              ___________________          Ann Rosenthal,  Counsel for Appellate Litigation,  were on brief,          _____________          for respondents.                              _________________________                                    June 13, 1997                               ________________________                    SELYA,  Circuit Judge.   The  petitioner, P.  Gioioso &                    SELYA,  Circuit Judge.                            _____________          Sons,  Inc. (Gioioso),  seeks  review of  a  final order  of  the          Occupational Safety and Health Review Commission (the Commission)          determining that  it violated the Occupational  Safety and Health          Act of 1970 (OSH Act), 19 U.S.C.    651-678 (1994).  The petition          purports  to raise  six distinct  objections to  the Commission's          order.   The Secretary of Labor (the Secretary) maintains that we          lack  jurisdiction  to hear  three  of  these objections  because          Gioioso failed  to raise them  when it petitioned  the Commission          for  review  of the  hearing  examiner's adverse  decision.   The          remaining objections, the Secretary tells us, are without force.                    The  jurisdictional question is new to  this court.  We          resolve  it favorably  to the  Secretary and  dispose  of certain          objections on that ground.  We deny the  remnants of the petition          on the merits.          I.  THE STATUTORY SCHEME          I.  THE STATUTORY SCHEME                    Congress enacted  the  OSH Act  "to  assure so  far  as          possible . . . safe and healthful working conditions."  29 U.S.C.            651(b).  The  Act spins an intricate administrative  web which,          among  other  things,  separates  rulemaking,   enforcement,  and          adjudication.  See Martin v. OSHRC, 499 U.S. 144, 151 (1991).  In                         ___ ______    _____          general, the Secretary sets mandatory safety and health standards          applicable to particular businesses.  See 29  U.S.C.   651(b)(3).                                                ___          The Occupational Safety and Health Administration (OSHA) enforces          those standards.  See id.     658-659, 666.  Citations issued  in                            ___ ___          respect to alleged violations  are adjudicated by the Commission.                                          2          See id.    659, 661.          ___ ___                    The Commission  operates in the first  instance through          administrative  law  judges  (ALJs),  who   function  as  hearing          officers.  See id.    661(j).  After hearing  a contested matter,                     ___ ___          the ALJ prepares a report.  See 29 C.F.R.   2200.90(a) (1996).  A                                      ___          member of the Commission may direct review of a report on his own          motion (as long as he does so within 30 days  after the docketing          date,  see id.   2200.92(b)),  or on application  of an aggrieved                 ___ ___          party.    See id.     2200.91(a).   The  instrument  by which  an                    ___ ___          aggrieved party  solicits the Commission's attention  is called a          petition for discretionary review (PDR),  and the party must file          it  within a  prescribed  20-day period  following the  docketing          date.  See id.   2200.91(b).  The ALJ's report  becomes the final                 ___ ___          order  of the Commission unless  review is granted  "on or before          the  thirtieth day  following  the  [docketing]  date."    Id.                                                                        ___          2200.90(d).  In other words, the Commission's failure to act on a          PDR within the stipulated 30-day period is tantamount to a denial          of review.                    Regardless of whether a final order comes about through          action or inaction  on the Commission's part,  an aggrieved party          may  seek judicial  review  of it  in  the appropriate  court  of          appeals.  See 29 U.S.C.   660(a).                    ___          II.  THE ORIGINS OF THE DISPUTE          II.  THE ORIGINS OF THE DISPUTE                    Gioioso is  in the construction  industry, specializing          in  utilities.     Some  time   ago,  it   contracted  with   the          Massachusetts Water Resources Authority (MWRA) to lay water lines                                          3          in Winthrop, Massachusetts.  During a lengthy period beginning in          1993, it laid  several thousand  feet of pipe  under or near  the          access road to MWRA's Deer Island work site.                    In the course of its endeavors, Gioioso dug an 18-foot-          long trench at the intersection of  Shirley and Taft Avenues.  On          October  6, 1994,  Gioioso's  foreman, Salvatore  Santone, and  a          laborer,  Fernando Camara, were standing in this trench.  At that          moment,  several OSHA compliance officers happened to pass by the          work  site.1   The  meandering  traffic  afforded the  compliance          officers  a clear  view of  the trench  and one of  their number,          Edward Wells,  did not like what he saw:  the trench's walls were          unsloped and unsupported, the two workmen standing in  the trench          were visible only from  the shoulders up, and a  ten-foot section          of cast metal pipe was suspended aloft from the bucket of a piece          of heavy construction equipment located at one end of the trench.          Wells sounded  the alarm  (figuratively speaking) and  the driver          stopped the car.                    One  of Wells' colleagues,  Patrick Griffin, exited the          vehicle  and hurried toward the trench.  Griffin noticed that the          dangling pipe was connected  to the bucket of a  large excavating          machine  by  only a  single attachment  point  and watched  as it          rotated  into a position parallel to the trench and directly over          the  workmen's  heads.    When  Griffin  reached the  trench,  he                                        ____________________               1The  exquisite  timing  of this  coincidence  suggests that          Emerson's epigram ("Wherever a  man commits a crime, God  finds a          witness."    Ralph  Waldo  Emerson,  "Natural  Religion,"  Essays                                                                     ______          (1875)) may  apply to  breaches of administrative  regulations as          well as to violations of the criminal code.                                          4          discovered that it  measured no less than six  feet deep and four          feet wide and had  been dug in gravelly soil.  No  trench box was          in place  to guard against  a cave-in  (although Santone  claimed          that  he and Camara had been measuring the trench to ascertain if          it could  accommodate  one).   Moreover, because  the trench  lay          adjacent  to  the  only road  providing  access  to  Deer Island,          vibrations from traffic increased the  risk of a cave-in.   A gas          pipe,  six inches in diameter, traversed the width of the trench.          Wells corroborated many of Griffin's observations.                    In  due  course, OSHA  issued citations  alleging three          serious violations  (one of  which the Secretary  later withdrew)          and  a repeat violation.2   The two serious  violations (which we          shall label "A" and "B") were as follows:                         A.  Permitting employees to work beneath                    the suspended pipe in violation of  29 C.F.R.                       1926.651(e)  (1996) (which  instructs that                    "[n]o employee shall be  permitted underneath                                        ____________________               2A serious violation occurs                    if  there is  a substantial  probability that                    death  or serious physical  harm could result                    from a condition which exists, or from one or                    more  practices, means,  methods, operations,                    or processes which  have been adopted  or are                    in use . . . unless the employer did not, and                    could  not with  the  exercise of  reasonable                    diligence,  know  of  the  presence   of  the                    violation.          29 U.S.C.   666(k).  While  the OSH Act does not define the  term          "repeat violation,"  courts  typically  require  proof  that  the          respondent violated the same standard on an earlier occasion in a          substantially similar fashion.   See, e.g., D & S  Grading Co. v.                                           ___  ____  __________________          Secretary of Labor, 899  F.2d 1145, 1147 (11th Cir.  1990); Bunge          __________________                                          _____          Corp.  v.  Secretary of  Labor, 638  F.2d  831, 836-37  (5th Cir.          _____      ___________________          1981);  George Hyman Constr. Co.  v. OSHRC, 582  F.2d 834, 838-39                  ________________________     _____          (4th Cir. 1978).                                          5                    loads   handled   by   lifting   or   digging                    equipment").                         B.  Permitting  workers to use  a ladder                    that did not extend at least three feet above                    the  top of  the  trench in  violation of  29                    C.F.R.       1926.1053(b)(1)  (1996)   (which                    directs  that  "[w]hen  portable ladders  are                    used for access to an upper landing  surface,                    the ladder side rails shall extend at least 3                    feet (.9m) above the upper landing").                    The repeat violation (which we shall  label "C") was as          follows:                         C.    Failing  to  provide  an  adequate                    protective system for workers in  an unshored                    trench,   in   violation  of   29   C.F.R.                       1926.652(a)(1)  (1996) (which  provides that,                    except when excavations are made  entirely in                    stable  rock or  are less  than five  feet in                    depth,  "[e]ach  employee  in  an  excavation                    shall  be  protected  from  cave-ins   by  an                    adequate protective system").                    The  petitioner filed a  timely notice of  contest.  At          the outset of the  hearing, it moved for disqualification  on the          ground  that the ALJ, several years earlier (while employed as an          attorney  in the Department of Labor), had prosecuted one or more          similar  cases involving  Gioioso.   The  ALJ  refused to  recuse          himself.    After considering  the  evidence, he  found  that the          violations    had    in    fact    occurred,    accepted   OSHA's          characterizations of  them, and  imposed penalties of  $1,600 for          each  of the  two serious  violations and  $8,000 for  the repeat          violation.                    Gioioso  petitioned  the  Commission for  discretionary          review of the ALJ's decision.   Its PDR called attention to  only          three issues (described  infra Part  IV).  The  PDR generated  no                                   _____                                          6          interest  and the  ALJ's decision  ripened into  the Commission's          final order.3  Gioioso then sought a judicial anodyne.          III.  THE JURISDICTIONAL ISSUE          III.  THE JURISDICTIONAL ISSUE                    We  turn  first to  the  jurisdictional  quandary.   In          pressing its cause before this  court, the petitioner raises  not          only the  three issues which  it enumerated in  the PDR  but also          three additional issues,  namely, whether  the ALJ  erred in  (1)          failing  to recuse  himself,  (2) characterizing  violation B  as          serious, and (3) assessing  substantial penalties.  The question,          then, is whether Gioioso's  failure to press these points  in the          PDR constitutes a forfeiture of the right  to bring them before a          reviewing court.  We think that it does.                    We begin  with bedrock.   In the  administrative state,          exhaustion  of administrative  remedies is  "generally required."          Weinberger  v. Salfi, 422 U.S. 749, 765 (1975).  This requirement          __________     _____          is more than  a matter of form.  "Insisting  on exhaustion forces          parties  to  take  administrative  proceedings  seriously, allows          administrative  agencies  an  opportunity  to  correct their  own          errors, and potentially avoids  the need for judicial involvement          altogether."  Portela-Gonzalez v. Secretary of the Navy, 109 F.3d                        ________________    _____________________          74, 79  (1st Cir.  1997).  In  this way, the  exhaustion doctrine          creates  a  win-win situation:    adhering  to it  simultaneously          enhances the efficacy of the agency, fosters judicial efficiency,                                        ____________________               3By its  inaction,  the Commission  effectively adopted  the          ALJ's  recommended findings and report.   We sometimes will refer          to these findings as if  they had been made by the  Commission in          the first instance.                                          7          and  safeguards   the  integrity   of  the   inter-branch  review          relationship.  See Power Plant Div., Brown & Root, Inc. v. OSHRC,                         ___ ____________________________________    _____          673   F.2d  111,  113  (5th  Cir.  1982);  see  also  Ezratty  v.                                                     ___  ____  _______          Commonwealth  of Puerto Rico, 648  F.2d 770, 774  (1st Cir. 1981)          ____________________________          (stating  that  the  "doctrine  serves  interests  of   accuracy,          efficiency, agency autonomy and judicial economy").                    The OSH  Act warmly  embraces the exhaustion  doctrine.          It provides in relevant part that persons such as Gioioso who are          "adversely affected or  aggrieved by an order  of the Commission"          may  obtain  judicial review  in the  "court  of appeals  for the          circuit in which the violation is alleged  to have occurred."  29          U.S.C.     660(a).   The right  to  judicial review,  however, is          carefully cabined.   Congress  specifically  directed that  "[n]o          objection  that has not been urged before the Commission shall be          considered  by the court, unless  the failure or  neglect to urge          such  objection   shall  be  excused  because   of  extraordinary          circumstances."   Id.   The  regulations complement  the statute,                            ___          explaining that an aggrieved  party's failure to file a  PDR "may          foreclose  court   review  of  the  objections   to  the  [ALJ's]          decision."  29 C.F.R.   2200.91(f).                    Interestingly, the commentary accompanying this part of          the regulations directs the reader to the Third Circuit's opinion          in Keystone Roofing Co.  v. OSHRC, 539  F.2d 960 (3d Cir.  1976),             ____________________     _____          for guidance.   The  Keystone court  considered  the question  of                               ________          whether the OSH  Act "permits  a reviewing court  to consider  an          employer's  objection to an OSHA citation which was argued to the                                          8          OSHA hearing examiner,  but which  was neither the  subject of  a          petition to the .  . . [Commission] for discretionary  review, 29          C.F.R.     2200.91,  nor  the  subject  of  review  by  the  full          Commission  at  the direction  of a  single  member, 29  U.S.C.            661(i)."   Id. at 961.   The court answered this  question in the                     ___          negative.  See id. at 964.                     ___ ___                    Although the rule announced in Keystone makes eminently                                                   ________          good  sense both  textually (that  is, as  a matter  of statutory          interpretation) and practically (that is, as a matter of policy),          the  petitioner attempts to elude its grasp.  Gioioso first notes          that the regulations  say only that an  aggrieved party's failure          to file a PDR "may foreclose court review of .  . . objections to                         ___          the  [ALJ's]  decision."     29  C.F.R.     2200.91(f)  (emphasis          supplied).    Gioioso contends  that the  use  of the  word "may"          implies  that  raising  the  objections  in  the  PDR  is  not  a          prerequisite  to judicial review.   We disagree.   For one thing,          the regulations cannot  alter the statutory scheme.   For another          thing,  the statute  leaves  a  door  ajar  for  cases  in  which          extraordinary circumstances obtain.  See 29 U.S.C.   660(a).  The                                               ___          regulation's  use of  the  verb "may"  is  no doubt  intended  to          preserve this narrow exception to the exhaustion doctrine, not to          widen it beyond all recognition.4                    The petitioner  has a fallback position.   It maintains          that  it in  fact "urged"  the three  omitted issues  "before the                                        ____________________               4We need not dwell on the exception itself as the petitioner          does not even venture to suggest that extraordinary circumstances          existed in this case.                                          9          Commission" in  the statutorily required sense.   The linchpin of          this assertion is the petitioner's claim that urging an objection          before  the ALJ is functionally and  legally equivalent to urging          it before the Commission.   The Fifth Circuit has  encouraged the          petitioner's view, suggesting in dicta that an objection might be          preserved for judicial review  if the aggrieved party articulated          it sufficiently before the ALJ.  See Cleveland Consolidated, Inc.                                           ___ ____________________________          v.  OSHRC, 649 F.2d 1160, 1165 (5th Cir. 1981) (assuming, without              _____          deciding, that  an issue had  been preserved for  judicial review          because it was "evident  from the record below," even  though the          aggrieved party did not specify it in the PDR).                    This dictum  distorts the clear  congressional intent.5          We believe it follows from the bifurcation of duties contained in          the statutory scheme, as well as from plain meaning, that the OSH          Act precludes  judicial review of  those objections not  urged in          front  of  the  Commission.     To  be  specific,  the   OSH  Act          acknowledges  the existence  of two  separate adjudicators    the          Commission   and  the   ALJs      and   assigns  very   different          responsibilities  to  each.   The  Commission  members, whom  the          President  appoints  based  on  their  training,  expertise,  and          experience,  see  29  U.S.C.     661(a),  carry  out   the  broad                       ___          adjudicatory functions required  by the OSH Act.  Conversely, the          ALJs'  functions  are  case-specific.   This  division  of  labor                                        ____________________               5This dictum goes much  further than the position originally          taken by the Fifth Circuit in McGowan v. Marshall, 604  F.2d 885,                                        _______    ________          889-91  (5th  Cir. 1979).   Our  preference  is for  that court's          earlier iteration.                                          10          carries  with  it  disparate  responsibilities,  leaving  in  the          Commission's  hands the  task of  ensuring the  development of  a          cohesive  body  of  decisional   rules  which  comport  with  the          objectives of the OSH Act.                    Given this framework, we think that the wiser course is          to construe  the statute according  to its  letter.   Only if  an          issue  is  actually called  to the  attention of  the Commission,          through  the   PDR  or  by  a   Commission  member's  spontaneous          initiative,  will the  Commission have  the informed  opportunity          that Congress intended   a meaningful chance to correct a mistake          before an order  becomes final.   Thus, the  model that  Congress          envisioned  can function  optimally only  if the  aggrieved party          alerts the Commission to those issues which that party thinks are          worthy of review.  Accord McGowan v. Marshall, 604 F.2d 885, 890-                             ______ _______    ________          91 (5th Cir. 1979); Keystone, 539 F.2d at 963.                              ________                    The language set forth  in the OSH Act drives  home the          point.   While the statute  recognizes the existence  of both the          Commission  and  the ALJs,  compare    661(a)  with    661(e), it                                      _______            ____          specifically  precludes judicial  review  of those  issues  which          "h[ave]  not  been urged  before the  Commission."   29  U.S.C.                                      ______________________          660(a) (emphasis supplied).   In  our view, the  omission of  the          term "ALJ" or words  of like import from section 660(a)  can only          be  regarded as intentional,  not inadvertent.   See  Russello v.                                                           ___  ________          United  States, 464  U.S. 16,  23 (1983) (explaining  that "where          ______________          Congress includes particular language in one section of a statute          but omits  it in another section of the same Act, it is generally                                          11          presumed that  Congress acts  intentionally and purposely  in the          disparate   inclusion  or  exclusion")   (citation  and  internal          quotation marks  omitted); 2A Norman J.  Singer, Sutherland Stat.                                                           ________________          Const.   47.23 (5th ed. 1992) (explaining that the inference that          ______          an omission is an intentional exclusion is  strengthened "where a          thing  is provided  in  one part  of the  statute and  omitted in          another").    In  short,  we  agree   with  the  Fifth  Circuit's          statement, albeit in a case that predates Cleveland Consolidated,                                                    ______________________          that "[t]he language of section 660(a) indicates that proceedings          targeted towards  the Commission, not those before  the ALJs, are          the predicate to judicial review."  McGowan, 604 F.2d at 890.                                              _______                    The language of the  statute is not only plain,  but it          is also fortified  by the regulations (which, if ambiguity lurks,          are deserving of deference, see  Chevron U.S.A., Inc. v.  Natural                                      ___  ____________________     _______          Resources Defense  Council, Inc., 467 U.S. 837, 843 (1984)),6 and          ________________________________          by the agency's stated  adherence to the Third  Circuit's seminal          decision in Keystone, 539 F.2d at 964.  Against this backdrop, we                      ________          are persuaded  that merely raising an  issue before the  ALJ   no          matter how clearly    fails  to preserve the  issue for  judicial          review.  Something more is needed:  the issue thereafter  must be                                        ____________________               6The  regulations underscore the  importance that the agency          attaches to raising an issue before the  Commission.  29 C.F.R.                                         ______ ___  __________          2200.91(d) exemplifies  this emphasis.  It  provides, inter alia,                                                                _____ ____          that  a  PDR  should  state  specifically  why review  should  be          directed,   including  whether  the  ALJ's  "decision  raises  an          important  question of  law, policy  or discretion"  and "whether          review  by the Commission will resolve a question about which the          Commission's [ALJs]  have  rendered differing  opinions."   These          directives would  be  emptied  of  meaning if  we  construed  the          statute to relieve  the aggrieved party of any  responsibility to          identify issues with particularity in the PDR itself.                                          12          brought to the Commission's attention either by its inclusion  in          a PDR or by the unilateral act of a single commissioner.                    Consistent with this  conclusion, we  next examine  the          PDR which Gioioso filed.   We find absolutely no  reference in it          either to the alleged mischaracterization of the ladder violation          or to the supposedly excessive nature of the penalty assessments.          Because  Gioioso  failed  to  urge these  objections  before  the          Commission, we are without jurisdiction to entertain them.                    The recusal  issue presents  a variation on  the theme.          Although  the PDR  did not  list this  objection as an  issue for          review, there was a glancing  mention of it in a footnote.7   The          petitioner claims  to have preserved  the issue in  this fashion.          But the exhaustion doctrine demands more than oblique references,          and the  statute's  use of  the verb  "urge" in  this contest  is          telling.   See  Webster's  Collegiate Dictionary  1300 (10th  ed.                     ___          1993)  (defining  "urge" as  meaning  "to  present, advocate,  or          demand earnestly or pressingly" or "to declare, advance, or press          earnestly a statement, argument,  charge or claim"); The American          Heritage Dictionary of  the English Language  1965 (3d ed.  1992)          (defining "urge" as "[t]o entreat earnestly and often repeatedly;                                        ____________________               7The footnote reads in its entirety:                    Gioioso moved  to recuse the  ALJ based  upon                    the   fact  that   the  ALJ   had  previously                    prosecuted  Gioioso   for  similar  citations                    while a solicitor  and that prosecution could                    impact the ALJ's judgment  in this case.  The                    ALJ  denied the  motion.   Later, Complainant                    introduced   into  evidence   the  settlement                    agreement  in  that  case  to  establish  the                    appropriateness of the penalty in this case.                                          13          exhort . . . [t]o present a forceful argument, claim, or  case").          In an OSHA  case, an  objection is not  "urged" in the  requisite          sense  (and will  not  be deemed  preserved for  judicial review)          unless the PDR conveys the substance of the objection face up and          squarely,  in  a  manner   reasonably  calculated  to  alert  the          Commission to the crux of the perceived problem.8                    The petitioner's treatment of  the recusal issue  fails          to meet  this benchmark.  As the PDR reads, the matter of recusal          is  little  more than  a  passing  comment, designed  to  provide          information buttressing another argument rather than to carve out          an  independent ground for inquiry.  Since the footnote failed to          place  the Commission  on proper  notice, it  did not  suffice to          preserve the issue of recusal for judicial review.                    The upshot of the matter  is simply this:  in order  to          effectuate  the  statute  that  Congress  wrote  and  assure  the          efficiency,  effectiveness,  and autonomy  of  the administrative          structure, an aggrieved  party desiring to preserve an  issue for          judicial  review must  raise  it before  the  ALJ, articulate  it          clearly   in  its   PDR,  and  offer   a  modicum   of  developed          argumentation in support  of it.   See Durez  Div. of  Occidental                                             ___ __________________________          Chem. Corp. v. OSHA, 906 F.2d  1, 5 (D.C. Cir. 1990) (refusing to          ___________    ____                                        ____________________               8To  be  sure, some  courts  have  speculated that  "[b]road          language  in a petition for review might be sufficient to satisfy          this  requirement."   Power  Plant,  659  F.2d at  1294  (quoting                                ____________          Cleveland  Consolidated, 649  F.2d  at 1164-65).    But short  of          _______________________          holding that the Commission is satisfactorily alerted to an issue          if it appears anywhere in the record below (a proposition that we          already  have   rejected),  no   court  has  suggested   that  so          nondescript a reference as is contained in the quoted footnote is          enough to satisfy the imperative of section 660(a).                                          14          hear an  issue listed  as  one of  five issues  in  the PDR,  but          neither  discussed  nor  supported   by  citations  of  authority          therein);  see also 29 C.F.R.    2200.91(d) ("[A] petition should                     ___ ____          concisely  state the portions of the decision for which review is          sought.");   cf.  Paterson-Leitch   Co.  v.   Massachusetts  Mun.                       ___  _____________________       ___________________          Wholesale Elec. Co., 840  F.2d 985, 990 (1st Cir.  1988) (holding          ___________________          that  to  preserve  an  issue for  review  on  an  appeal from  a          magistrate's  report to a district judge, a party must "spell out          his arguments squarely and  distinctly").  Because the petitioner          did not satisfy this criterion with  respect to three of its  six          putative issues,  we lack  jurisdiction to  hear those  issues in          this proceeding.          IV.  THE MERITS          IV.  THE MERITS                    Our conclusion that we  lack jurisdiction to hear three          of  the petitioner's  six objections  marks only  the end  of the          beginning.  We  still must  resolve the  three preserved  claims,          namely,  (1)  whether substantial  evidence supports  the finding          that  the petitioner's  employees worked  below a  suspended pipe          (Violation A);  (2) whether the Commission erred  in finding that          the petitioner's employees were exposed to trench-related hazards          without  an adequate  protection  system (Violation  C); and  (3)          whether  the record  supports the  rejection of  the petitioner's          unpreventable employee  misconduct defense.   We discuss  each of          these contentions separately, pausing first  to delineate certain          principles affecting the standard of appellate review.                           A.  Principles Affecting Review.                           A.  Principles Affecting Review.                               ___________________________                                          15                    A  reviewing court  customarily defers  to an  agency's          reasonable interpretation of a statute  that it administers.  See                                                                        ___          Chevron,  467 U.S. at 843-44 &  n.11; Strickland v. Commissioner,          _______                               __________    _____________          Me. Dep't of Human Servs., 96 F.3d 542, 547 (1st Cir. 1996).  The          _________________________          impetus for  deference escalates  when the agency  interprets its          own regulations.   See Lyng  v. Payne, 476 U.S.  926, 939 (1986);                             ___ ____     _____          Udall v. Tallman, 380 U.S. 1, 16 (1965).  In  the final analysis,          _____    _______          a reviewing  court should  respect an agency's  interpretation of          its own regulation as long  as the interpretation meshes sensibly          with the regulation's language and purpose.  See Martin, 499 U.S.                                                       ___ ______          at  151.   These  principles apply  to  the regulations  that the          Secretary of Labor promulgated to implement the OSH Act.  See id.                                                                    ___ ___          at 152.                    The OSH Act, see 29  U.S.C.   660(a), incorporates  the                                 ___          basic judicial review provisions  of the Administrative Procedure          Act.   Under  those provisions,  agency determinations  should be          upheld  unless  they  are  "arbitrary, capricious,  an  abuse  of          discretion, or otherwise not in accordance with law."  5 U.S.C.            706(2)(A) (1994).                    The Commission's  findings of  fact  are conclusive  as          long as they are "supported by substantial evidence on the record          considered  as  a  whole."    29  U.S.C.    660(a).    The  Court          delineated the  contours of  the "substantial  evidence" standard          nearly half a century  ago in Universal Camera Corp. v. NLRB, 340                                        ______________________    ____          U.S. 474,  477, 491 (1951), and  they are by now  too familiar to          warrant  repetition.   We  mention specially,  however, that  the                                          16          standard  applies  with undiminished  force  where,  as here,  an          administrative body,  like the  Commission, does not  itself hear          witnesses  but instead  adopts an  ALJ's findings  of fact.   See                                                                        ___          Truck  Drivers & Helpers Union,  Local No. 170  v. NLRB, 993 F.2d          ______________________________________________     ____          990, 998-99 (1st Cir. 1993).  As a corollary to the standard, the          hearing  examiner's credibility  determinations  are entitled  to          great deference.  See  General Dynamics Corp. v. OSHRC,  599 F.2d                            ___  ______________________    _____          453, 463 (1st Cir. 1979).                                   B.  Violation A.                                   B.  Violation A.                                       ___________                    The   Commission  found   that  Gioioso   breached  the          excavation standard, 29 C.F.R.   1926.651(e), which mandates that          "[n]o  employee shall  be permitted  underneath loads  handled by          lifting or digging equipment."  The petitioner assigns error.  We          see none.                    The  citation   underpinning  Violation  A   states  in          relevant part  that Gioioso's personnel "were  exposed to serious          injury while  working in a trench in which a section of 12" water          line  was being lowered."  In adjudicating this citation, the ALJ          credited the  testimony of two compliance  officers who described          seeing a ten-foot section  of cast metal pipe suspended  from the          bucket of  an excavating machine by  a chain sling.   As the pipe          moved,  it  rotated around  the  single point  of  suspension and          passed over  the heads of the men who were working in the trench.          While the  observations of the  two compliance officers  were not          entirely  congruent,   the   ALJ  determined   that  the   modest          discrepancies  in their  accounts  were easily  explained by  the                                          17          officers'  differing  vantage  points.    He  also  found  that a          photograph taken shortly thereafter corroborated their testimony.          Keeping  in mind the frailty of Gioioso's rebuttal   its foreman,          Santone,  stated only  that he  did not  recall the  pipe passing          overhead    there is no principled  basis on which a  court could          justify  substituting its  judgment  for the  factfinder's.   See                                                                        ___          General Dynamics, 599 F.2d at 463.          ________________                                   C.  Violation C.                                   C.  Violation C.                                       ___________                    The Commission found that  Gioioso failed to provide an          adequate protective system  within the trench, thereby  violating          29 C.F.R.    1926.652(a)(1).   The petitioner again  spies error.          We do not.                    It is  undisputed  that  the  petitioner  neglected  to          furnish  a  support  system,  shield system,  or  other  adequate          safeguarding  within the  trench  as  required  by  29  C.F.R.             1926.652(c).  Additionally, the  petitioner failed to comply with          the provisions of 29 C.F.R.   1926.652(b)(1)(i) (which delineates          a protection  option accomplished by  the gradual sloping  of the          excavation's walls).   But  the regulations exempt  some unsloped          excavations  that are  less than five  feet in  depth, see  id.                                                                   ___  ___          1926.652(a)(1)(ii), and the petitioner  seeks the shelter of this          exemption.   The petitioner  hypothesizes that its  workers never          were exposed to the hazards  inherent in an excavation  exceeding          five feet  in depth  because they  were standing  on a pipe  that          traversed  the  width  of the  trench.    The  ALJ rejected  this          defense:  although he  believed it was unlikely that  the workmen                                          18          were  standing on  the floor  of the  trench when  the compliance          officers  arrived,  he found  that  "no  matter where  they  were          standing,  [they]  were  still  inside  a  trench  that  was  not          protected  in accordance with    1926.652(a)(1)."  We review this          essentially legal judgment de novo.                    In reaching this conclusion,  the ALJ relied heavily on          Ford Dev.  Corp., 15 O.S.H. Cas.  (BNA) 2003 (1992).   There, the          ________________          employer claimed that its  employees were supposed to stand  on a          pipe while in  a trench, and  that in so  doing they  effectively          would  be exposed to a depth of  only 3.5 feet (the distance from          the upper  surface of the  pipe to the  top of the  trench).  The          Commission  rejected this  argument.   It  noted  that the  depth          exception  applies only  if an  excavation is  "less than  5 feet          (1.52m) in depth  and examination  of the ground  by a  competent          person provides no indication of a potential cave-in."  29 C.F.R.            1926.652(a)(1)(ii).  The  Commission then explained that "[t]he          standard  speaks of the depth of  the trench, not of the position          of employees in the trench."   Ford Dev. Corp., 15 O.S.H. Cas. at                                         _______________          2011.   On  this  basis,  the  Commission  held  that  the  depth          exception did not apply.  See id.                                    ___ ___                    The reasoning  in Ford embodies a sensible construction                                      ____          of the regulation    and one that  comports with its wording  and          purpose.   The safety  standard is implicated  by the depth  of a          particular  trench,  without  regard  to an  individual  worker's                                          19          precise position in it.9  The notion that having workers stand on          a  laid  pipe  within  a  trench  is  a  satisfactory  method  of          protecting them from the risk of cave-ins is nonsense.  While the          regulations are performance-oriented,  they only allow  employers          to choose from a limited  universe of acceptable procedures,  not          to  jury-rig  convenient  alternatives  and  impose  them  on  an          imperilled work force.  See Conie Constr., Inc. v. Reich, 73 F.3d                                  ___ ___________________    _____          382, 384 (D.C. Cir. 1995).                    We  have  said  enough  on this  score.    Because  the          excavation regulation  applies to the trench  in question whereas          the  depth exception  does  not, the  Commission's resolution  of          Violation C must stand.                        D.  Unpreventable Employee Misconduct.                        D.  Unpreventable Employee Misconduct.                            _________________________________                    The  Commission  rejected the  petitioner's affirmative          defense of  unpreventable employee misconduct (the  UEM defense).          The petitioner challenges this  determination as a matter  of law          and as a matter of fact.  We reject both challenges.                    The  OSH Act  requires that  an employer  do everything          reasonably within its power  to ensure that its personnel  do not          violate safety standards.   But if  an employer lives up  to that          billing and an employee nonetheless fails to use proper equipment                                        ____________________               9The  record in this  case aptly  illustrates the  wisdom of          this conclusion.  A compliance officer, Griffin, testified to the          close  proximity of traffic on the adjacent roads and warned that          this  could  cause  vibrations   along  the  trench  walls,  thus          heightening the  risk of a cave-in.   If a cave-in  occurred in a          trench of  this depth, Griffin  believed that  workers within  it          would  "probably . . .  be buried" regardless  of where they were          standing.                                          20          or otherwise ignores firmly established safety measures, it seems          unfair to hold  the employer  liable.  To  address this  dilemma,          both OSHRC and the courts have recognized the availability of the          UEM defense.                    The  contours of  the UEM  defense are  relatively well          defined.  To reach safe harbor, an employer must demonstrate that          it (1) established a  work rule to prevent the  reckless behavior          and/or   unsafe   condition   from   occurring,   (2)  adequately          communicated  the  rule  to  its employees,  (3)  took  steps  to          discover incidents of noncompliance, and (4) effectively enforced          the  rule whenever employees transgressed it.  See New York State                                                         ___ ______________          Elec. & Gas Corp. v. Secretary of Labor, 88 F.3d 98, 105 (2d Cir.          _________________    __________________          1996); General Dynamics,  599 F.2d at 458-59; Jensen Constr. Co.,                 ________________                       __________________          7 O.S.H. Cas. (BNA) 1477, 1479 (1979).                    The employer  must shoulder  the burden of  proving all          four  elements of the UEM defense.   See Brock v. L.E. Myers Co.,                                               ___ _____    ______________          818 F.2d 1270, 1276  (6th Cir. 1987); General Dynamics,  599 F.2d                                                ________________          at  459.    Sustaining  this  burden  requires  more  than  pious          platitudes:  "an employer must do  all it feasibly can to prevent          foreseeable  hazards,   including   dangerous  conduct   by   its          employees."   General  Dynamics,  599 F.2d  at  458; accord  H.B.                        _________________                      ______  ____          Zachry Co. v. OSHRC, 638 F.2d 812, 818 (5th Cir. 1981).          __________    _____                    The  mainstay of  Gioioso's  argument is  that the  ALJ          unnecessarily required repetitive  documentary proof referable to          the UEM  defense.   But  this is  smoke and  mirrors; the  record          reveals  quite clearly that the ALJ applied the appropriate legal                                          21          standard in a wholly unremarkable way and found that the employer          failed  to   carry  the   devoir  of   persuasion  on   both  the          implementation and  enforcement components of the  defense.  This          deficit is fatal.  Even if an employer establishes work rules and          communicates them to its  employees, the defense of unpreventable          employee misconduct cannot be  sustained unless the employer also          proves  that  it  insists  upon  compliance with  the  rules  and          regularly  enforces  them.   See  Centex-Rooney  Constr. Co.,  16                                       ___  __________________________          O.S.H. CAS. (BNA) 2127, 2130 (1994).                    Contrary to the petitioner's insinuations,  the ALJ did          not presume to  establish a per se  rule requiring documentation.          Rather,  he  counted the  absence  of  documentation against  the          proponent  of the defense in the circumstances  of this case.  We                                    __________________________________          cannot fault this approach.  Given the nature of the issue, there          is no reason why a factfinder must accept an employer's anecdotal          evidence uncritically.  And  in this instance, we agree  with the          ALJ that the absence of any vestige of documentary  proof was not          only a relevant datum but a telling one.                    The  petitioner also questions whether the Commission's          rejection of its UEM defense is supported by substantial evidence          in  the  record.    After  giving  due  deference  to  the  ALJ's          credibility determinations,  we conclude  that the  ruling passes          muster.                    While  the  record   reflects  that   Gioioso  made   a          meaningful effort to develop a satisfactory safety program, it is          much  less  conclusive  on   the  issues  of  implementation  and                                          22          enforcement.   The petitioner's best case is  that it distributes          safety manuals to  all new employees; that  these manuals contain          information regarding, inter alia,  the lifting of loads, methods                                 _____ ____          of  trench protection,  and the  proper placement  of  ladders in          trenches;  and that  it  supplements these  materials in  various          ways.    The  petitioner's  safety chairman  testified  that  the          company  sponsors weekly  "toolbox  talks" at  its work  sites,10          monthly safety  meetings for supervisory personnel,  and biennial          safety seminars for all  employees.  But this evidence  left some          fairly  conspicuous  gaps  as  to  the  content  of  the training          exercises,  who conducted  each session,  and who  attended them.          Documentation    say, syllabi or attendance  rosters   would have          gone a long  way toward  filling these gaps,  but the  petitioner          proffered   none.      Absent  such   documentation,   it  cannot          persuasively argue that it  effectively communicated the rules to          its employees.                    The  ALJ   found  most  compelling  the   lack  of  any          substantial  evidence   in   the  record   that  the   petitioner          effectively enforced its safety program.  It provided no evidence          of unscheduled safety audits  or mandatory safety checklists, and          no   documentation  that   it  ever   executed   its  four-tiered          disciplinary policy.   This  lacuna in  the proof undermines  its          attempt to mount a viable UEM defense.  See Hamilton Fixture,  16                                                  ___ ________________          O.S.H.  Cas.  (BNA)  1073,  1090  (1993)  (finding  the  evidence                                        ____________________               10The safety  chairman submitted  a newsletter  published by          the National Utility Contractors Association  summarizing various          representative "toolbox talks."                                          23          insufficient  where  there was  no  proof  to establish  adequate          enforcement  even though  the  written work  rule was  adequate),          aff'd, 28 F.3d 1213 (6th Cir.  1994).  Even when a safety program          _____          is thorough and properly conceived, lax administration renders it          ineffective (and,  thus, vitiates  reliance on the  UEM defense).          See Brock,  818 F.2d at 1274,  1278 (in which the  ALJ rejected a          ___ _____          UEM  defense   when  the  employer  could   not  produce  records          evidencing employees'  receipt of safety manuals,  the occurrence          of safety meetings, and the like).                    Brock   also  illustrates   another  point   which  has                    _____          pertinence  here.   The  Brock court  regarded the  circumstances                                   _____          surrounding  the actions  of  the employer's  foreman as  further          evidence  that the employer's program was lax.   See id. at 1277.                                                           ___ ___          The  case at hand  is not  dissimilar; Santone,  the petitioner's          foreman,  in  effect  acknowledged   that  his  actions  directly          contravened  the  company's  safety  policies.    And  while  the          petitioner  argues that  a foreman  should not  be regarded  as a          supervisor,  the  company's  own  safety  manual  identifies  the          foreman as the "safety foreman for his crew," instructs employees          to "listen to  your foreman"  in respect to  safety matters,  and          directs  foremen (along  with other  company safety  officers) to          inspect work sites regularly  and to enforce safety rules.   Seen          in  the context of  these instructions,  the foreman's  breach of          safety  rules supplies  the  basis  for  an  inference  that  the          employer's  implementation  of   safety  procedures  and/or   its          enforcement  policies left something to be desired.  See id.; see                                                               ___ ___  ___                                          24          also H.B. Zachry, 638  F.2d at 819.   The same circumstance  also          ____ ___________          buttresses the  ALJ's finding  that Gioioso's  employees probably          were unaware  that a threat  of disciplinary  action existed  for          nonobservance of safety rules.                    Finally, it bears mentioning that one of the violations          (Violation C) is a  repeat violation.  Recent violations  provide          some  evidence of  ineffective  safety enforcement.   See  Jensen                                                                ___  ______          Constr. Co.,  7  O.S.H. Cas.  at 1479  & nn.  5-6.   The ALJ  was          ___________          entitled to draw such an inference here.                    We  need  go  no  further.    Taking  into  account the          totality of the circumstances and the allocation of the burden of          proof,  we  find  the  petitioner's  claim  that  the  Commission          improperly rejected its UEM defense to be without merit.                    The petition for review is denied and dismissed.                    The petition for review is denied and dismissed.                    _______________________________________________                                          25
