* Pursuant to 5 T H C IR

. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 01-60417

__________________

CAPFORM, INC.,

Petitioner,

v.

ELAINE CHAO, SECRETARY OF LABOR,

Respondent.

---------------------------------

On Petition for Review of an Order of the

Occupational Safety and Health Review Commission

--------------------------------- March 20, 2002

Before HIGGINBOTHAM, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM: *

Petitioner Capform, Inc. (“Capform”) challenges a citation and penalt y assessed by

Respondent Secretary of Labor Elaine Chao (the “Secretary”) for inadequately training its employees

in proper safety procedures during a construction job in violation of th e Occupational Safety and

Health Act (“OSHA”). For the reasons that follow, we deny Capform’s petition for review.

I.

The cit at io n at issue in this case was assessed after an investigation into a fatal accident

concerning a Capform employee. The accident occurred on a project involving the construction of1 There is conflicting evidence regarding whether Salas told the Trejo brothers not to push at

the base of the supporting post.

2 mult iple concrete floors, to be accomplished in a floor-to-floor upward process by pouring concrete

into molds created by sheets of plywood and wood beams. After the concrete dries, these supports

and the metal scaffolds (the “shoring”) are removed in a process called stripping. To accomplish this

task, laborers place support posts (“jacks”) in pairs under t he shoring. When these posts are

removed, the shoring falls, thereby creating a hazard for the workers. For safety, the workers use a

12-foot pole called a “nena”, which they pull in opposit e direct ions so that the shoring falls a way

from the workers and lands in the area between them. It is very important that the worker does not

push the nena, as that motion would cause the shoring to fall toward him. If something prevents him

from pulling the nena, he is to use an alternate method, such as tying a rope around the base of the

jack.

On August 11, 1998 Jose and Refugio Trejo, who had been working as carpenters earlier that

day, were sent to help Nicholas Salas, the stripping foreman. As Salas had not worked with the Trejo

brothers, he spent 15-20 minutes instructing them on the proper striping procedure, including how

to pull away the nenas. In addition to this job-specific instruction, Capform trains its employees to

consult a foreman when faced with an unfamiliar situation. 1 Shortly after Salas left the Trejo brothers,

Refugio Trejo encountered a situation that was not explicitly covered in his training, as one of the

jacks was too close to an elevator shaft to pull it away wit h the nena. Rather than consulting the

foreman, Refugio push ed o n t he jack, which fell toward him and fatally struck him in the head.

Following the accident and an OSHA invest igat io n, Capform was issued a serious citation for2 Section 1926.21(b)(2) provides:

The employer shall instruct each employee in the recognition and avoidance

of unsafe conditions and the regulations applicable to his work environment

to control or eliminate any hazards or other exposure to illness or injury.

3 violating 29 C.F.R. § 1926.21(b)(2). 2 The Administrative Law Judge (“ALJ”) affirmed the violation

and assessed a penalty of $6,300.00. The Occupational Safety and Health Review Commission (the

“Commission”) affirmed the ALJ’s decision.

II.

Capform faces a heavy burden in its challenge to the citation and penalty. We must defer to

the Commission’s “findings on questions of fact and reasonable inferences drawn from them if they

are supported by substantial evidence on the record considered as a whole even if this court could

just ifiably reach a different result de novo

. The OSHRC’s legal conclusions are reviewed as to

whether they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

the law.” T

rinity Marine Nashville, Inc. v. OSHRC , 275 F.3d 423, 426-27 (5 th Cir. 2001) (internal

citations and quotations omitted).

Applying this deferential standard to the facts before us, we cannot say that the Commission’s

decision was not supported by substantial evidence. It is undisputed that Salas failed t o instruct

Refugio Trejo in the proper procedure for stripping when an obstruction prevented the nena fro m

being pulled. Capform argues that such an instruction is unnecessary because its employees knew

to contact a foreman when they encountered an unfamiliar situation. Moreover, it contends that

instructions are required only for known hazards, and that Salas was unaware of the obstructi on

caused by the elevator shaft. Even so, however, Capform has failed to carry its heavy burden. The

record demonstrates that even though a specific alternate procedure existed for situations in which4

it was impossible to pull the nena, Salas did not discuss that pr ocedure with Refugi o Trej o. The

exist ence o f t his alternate method further undermines Capform’s argument that the hazard facing

Refugio Trejo was unknown. We therefore conclude that this evidence is sufficient to support the

Commission’s decision.

Capform further contends that the penalty assessed for the violation is excessive. Again, our

review is deferential, as we apply an abuse of discretion standard. S ee Union Tank Car Co. v. OSHA

,

192 F.3d 701, 705 (7 th Cir. 1999); Shaw Constr., Inc. v. OSHRC , 534 F.2d 1183, 1185 (5 t h Cir.

1976). When assessing penalties for OSHA violations, the Commission gives “due consideration to

the appropriateness of the penalty with respect t o the size of the business of the employer being

charged, the gravity of the violation, the go o d faith of the employer, and the history of previous

violations.” 29 U.S.C. § 666(j). Capform received a penalty of $6,300, just shy of the $7,000

maximum under the statute. It argues that the Commission overlooked its good faith and its history

of compliance with OSHA regulations. Furthermore, it contends that the Commission misjudged the

gravity of the violation, which involved o nly two workers and was of minimal duration and low

probability. As the Secretary notes, however, Capform is a large employer and its violation directly

resulted in the death of an employee. Therefore, even if we would not have assessed a penalty in the

same amount, we cannot say that the Commission abused its discretion.

III.

In light of the foregoing reasons, we deny Capform’s petition for review.