United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 2007 Decided November 27, 2007

No. 06-1244

FABI CONSTRUCTION COMPANY, INC. AND

PRO MANAGEMENT GROUP,

PETITIONERS

v.

SECRETARY OF LABOR,

RESPONDENT

On Petition for Review of an Order of the

Occupational Safety and Health Administration

Joseph P. Paranac, Jr. argued the cause and filed the briefs

for petitioners.

John Shortall, Attorney, U.S. Department of Labor, argued

the cause for respondent. With him on the brief were Joseph M.

Woodward, Associate Solicitor, and Nathaniel I. Spiller, Senior

Counselor. Michael P. Doyle, Attorney, entered an appearance.

Steven D. Gordon argued the cause for amici curiae

Building Contractors Association of New Jersey, et al. in

support of petitioners. With him on the brief were Michael A.

Branca and Stephen C. Yohay.
2

Before: GINSBURG, Chief Judge, and SENTELLE and

BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: Petitioners, Fabi Construction,

Inc. and Pro Management Group, seek review of the

Occupational Safety and Health Review Commission’s

(Commission’s) affirmance of several citations for violations of

the Occupational Safety and Health Act of 1970, 29 U.S.C.

§§ 651–678, (OSH Act) and regulations promulgated under it.

We deny review of the Commission’s affirmance of violations

of the General Duty Clause, 29 U.S.C. § 654(a)(1), and 29

C.F.R. § 1926.703(e)(1), and its treatment of Petitioners as a

single entity for OSH Act purposes, as these decisions are

reasonable and supported by substantial evidence. Because the

Secretary of Labor’s (Secretary’s) interpretation of “formwork”

is unreasonable and failed to provide fair notice to Petitioners,

we grant the petition for review of the 29 C.F.R.

§ 1926.703(a)(1) violation. Accordingly, we vacate the

respective citation and fine. Finally, we grant the petition for

review of the $7,000 fine assessed for Petitioners’ violation of

§ 1926.703(e)(1). We remand this fine to the Commission for

lack of findings sufficient to support raising the $2,500 fine

proposed by the Secretary. 

I. Background

Keating Building Corporation, the general contractor for an

expansion of the Tropicana Hotel and Casino in Atlantic City,

New Jersey, hired Fabi Construction, Inc., and its management

company, Pro Management Group, to place concrete for its

Tropicana project. Fabi and Pro Management provided labor,

materials, and equipment for completing the concrete work.

These materials included pre-cast concrete tubs, or “Filigree
3

slabs,” which Fabi placed on site, reinforced with steel (both top

steel and reinforcing longitudinal steel, or “rebar”), and filled

with additional concrete to create the floors of the structure.

Petitioners hired Forrest Consultants and Mid-State Filigree

Systems to convert the engineer’s structural drawings into “shop

drawings,” plans Petitioners used on-site that detailed the

placement of building components such as top steel and rebar.

Inspectors from Site-Blauvelt, a private company, and Atlantic

City, checked the steel placement’s conformity with the shop

drawings before Fabi poured concrete. Because wet concrete is

substantially heavier than dry concrete, it requires additional

support, or “ shores,” while drying, or “curing.” Fabi provided

and constructed formwork to support the curing concrete. 

On October 30, 2003, while Petitioners were pouring

concrete on the eighth level of what was intended to be a tenstory parking garage, levelsfourthrough eight collapsed, killing

four of Fabi’s employees and injuring twenty-one others.

OSHA investigated the accident and cited Fabi and Pro

Management for five serious violations and one willful violation

of the OSH Act. Willful violations can carry a penalty of up to

$70,000, while serious violations are limited to penalties of up

to $7,000. 29 U.S.C. §§ 666(a) & (b). 

Fabi and Pro Management contested the citations before the

Commission. In accordance with 29 U.S.C. § 661(j), the

Commission appointed an Administrative Law Judge (ALJ) to

hear the case. Just before the hearing, the Secretary withdrew

two of the citations for serious violations. After a twelve-day

hearing, the ALJ issued a Decision and Order on March 2, 2006,

vacating one serious violation, one instance of a serious

violation, and the “willful” classification for another violation,

and affirming all other citations. In doing so, the ALJ raised the

fine for one of the serious violations from $2,500 to $7,000. In

addition, the ALJ held that Fabi and Pro Management are a
4

“single entity” for OSH Act purposes. Fabi and Pro

Management filed a petition for discretionary review with the

Commission on April 20, 2006. The Commission declined to

review the case, so the ALJ’s Decision and Order became the

Commission’s final order on May 1, 2006. See id. § 661(j).

Fabi and Pro Management petition this Court for review of

all the Commission’s adverse findings. First, Petitioners

challenge the Commission’s finding that they violated the OSH

Act’s General Duty Clause, 29 U.S.C. § 654(a)(1), by failing to

place top steel in accordance with shop drawings and rebar in

accordance with industry practice. They allege that these

findings are unsupported by substantial evidence. Second, they

challenge the Commission’s finding that Petitioners violated 29

C.F.R. § 1926.703(a)(1) by failing to maintain formwork so that

it would be capable of supporting the imposed loads without

failure. They claim that the Secretary’s interpretation of

“formwork” to include permanent parts of the structure is

unreasonable, failed to provide fair notice as required by the

Fifth Amendment’s Due Process Clause, and was unsupported

by substantial evidence. Third, they challenge the

Commission’s finding that they violated 29 C.F.R.

§ 1926.703(e)(1) by removing formwork without properly

testing the structure’s strength. Fabi and Pro Management

allege that the Secretary’s interpretation of “removal” of

formwork to include the step when contractors engage in

“cracking,” or lowering supporting steel several inches to allow

the structure to dry in its natural position, is unreasonable. They

also allege that the Commission’s assessment of a $7,000 fine

when the Secretary only proposed $2,500 was arbitrary and

capricious. Finally, Petitioners challenge the Commission’s

finding that they can be treated as a single entity for OSH Act

purposes.
5

II. Analysis

We affirm the Commission’s decisions unless they are

“arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A); see also AJP

Constr., Inc. v. Sec’y of Labor, 357 F.3d 70, 72–73 (D.C. Cir.

2004). In addition, we give “substantial deference” to an

agency’s interpretation of its regulations, only setting it aside if

the plain language of the regulation or “other indications of the

[agency’s] intent” require another interpretation. Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); see

Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 377

(1998); see also S.G. Loewendick & Sons, Inc. v. Reich, 70 F.3d

1291, 1294 (D.C. Cir. 1995) (deferring to the Secretary’s

interpretations of the OSH Act and regulations, not the

Commission’s, because the Secretary is the policymaker for

OSHA). Deference to the Secretary’s interpretation of her

regulations may even hold when that interpretation first appears

in the course of litigation. Auer v. Robbins, 519 U.S. 452, 462

(1997). 

The OSH Act requires that “findings of the Commission

with respect to questions of fact, if supported by substantial

evidence on the record considered as a whole” be conclusive.

29 U.S.C. § 660(a); see also Fabi Constr. Co., Inc. v. Sec’y of

Labor (Fabi I), 370 F.3d 29, 33 (D.C. Cir. 2004). Under the

“substantial evidence” standard, this Court must uphold the

Commission’s findings of fact as long as there is enough

evidence in the record for a reasonable mind to agree with the

Commission. Universal Camera Corp. v. NLRB, 340 U.S. 474,

477 (1951); AJP Constr., 357 F.3d at 73. In addition, we

“ ‘must accept the ALJ’s credibility determinations . . . unless

they are patently unsupportable.’ ” Fabi I, 370 F.3d at 39

(quoting AJP Constr., 357 F.3d at 73). 
6

A. General Duty Clause Violation, 29 U.S.C. § 654(a)(1)

We begin with the Commission’s findings that Fabi and Pro

Management violated the OSH Act’s General Duty Clause in

two ways: first, that Petitioners failed to place top steel in

accordance with shop drawings, and second, that they failed to

place rebar in accordance with industry practice. Petitioners

allege that the Commission’s findings are unreasonable and

unsupported by substantial evidence. For the reasons set forth

below, we disagree. 

The General Duty Clause requires an employer to provide

a working environment “free from recognized hazards that are

causing or are likely to cause death or serious physical harm to

his employees.” 29 U.S.C. § 654(a)(1). To establish a violation

of the General Duty Clause, the Secretary must establish that:

(1) an activity or condition in the employer’s workplace

presented a hazard to an employee, (2) either the employer or

the industry recognized the condition or activity as a hazard,

(3) the hazard was likely to or actually caused death or serious

physical harm, and (4) a feasible means to eliminate or

materially reduce the hazard existed. Int’l Union, United Auto.,

Aerospace & Agric. Implement Workers of Am. v. Gen.

Dynamics Land Sys. Div., 815 F.2d 1570, 1577 (D.C. Cir. 1987).

In other words, “the Secretary must prove that a reasonably

prudent employer familiar with the circumstances of the industry

would have protected against the hazard in the manner specified

by the Secretary’s citation.” L.R. Willson & Sons, Inc. v.

Occupational Safety & Health Rev. Comm’n, 698 F.2d 507, 513

(D.C. Cir. 1983).

1. Top Steel

Petitioners first contend that their placement of top steel

conformed to the requirements of the General Duty Clause.
7

Specifically, they assert that the Secretary failed to show by

substantial evidence that they violated the fourth element of the

General Duty Clause for two reasons: first, they abated the

hazard by following Mid-State Filigree Systems’s shop

drawings for placing top steel, and second, the abatement

method the Secretary proposed—following Forrest

Consultants’s shop drawings—was infeasible. Petitioners claim

that by abutting the top steel to the crash wall and inserting the

top steel into the columns an average of four inches, they abated

the hazard. They claim that this placement satisfied their duties

under this clause because they followed the shop drawings that

Mid-State prepared for the placement of top steel. Mid-State’s

drawings did not show the top steel-to-column connections at all

and showed the top steel stopping before the crash wall without

attaching to the wall in any way. But based on testimony from

one of the Secretary’s experts and the face of the shop drawings

themselves, the ALJ found that Forrest Consultants prepared the

shop drawings that were meant to be used for top steel

placement, not Mid-State. In making her finding, the ALJ cited

a Mid-State shop drawing as persuasive evidence that it was not

meant for the purpose Petitioners assert. Mid-State’s drawing

contains blown-up depictions of cross-sections of slabs and

some of the reinforcing steel to be placed within them. But

instead of detailing the placement of top steel within the slab,

the drawing points to the top part of the slab and writes, “TOP

STEEL AS REQ’D (BY OTHERS).” The ALJ found that the

“others” indicated in Mid-State’s drawing were Forrest

Consultants. As support, the ALJ cited a shop drawing that

Forrest Consultants prepared and titled:

PARKING LEVELS 5 THROUGH 9

SLAB

TOP STEEL 
8

One of the Secretary’s experts testified that Forrest

Consultants’s drawing required Petitioners to attach the top steel

to the crash wall and to embed the top steel into the columns

about eight inches. Petitioners discount this expert’s credibility

because he had trouble determining the precise embedment

depth in a structural drawing made on the same scale. But

“‘[w]e must accept the ALJ’s credibility determinations . . .

unless they are patently unsupportable.’” AJP Constr., 357 F.3d

at 73 (quoting Tasty Baking Co. v. NLRB, 254 F.3d 114, 124

(D.C. Cir. 2001)). Forrest Consultants’s drawing, though on a

small scale, indicates the placement of the top steel in a

pronounced way, using large, criss-crossed lines. The ALJ saw

this drawing and took it into account when she assessed the

witness’s credibility. In addition, the ALJ relied not only on this

expert’s opinion, but her own assessment of the shop drawings

in the record to make the determination that Forrest

Consultants’s shop drawings were intended to be used for the

placement of top steel. This evidence is not insubstantial. 

 Petitioners also claim that the Secretary failed to put forth

substantial evidence of a feasible method to abate the top steel

hazard. Int’l Union, 815 F.2d at 1577. It is undisputed that if

Fabi and Pro Management had followed Forrest Consultants’s

shop drawings for the placement of top steel, the crash wall that

ran along the parking garage’s exterior would have blocked the

proper embedment. But Petitioners mischaracterize the

Secretary’s proposed method of abatement. The Secretary does

not contend that Petitioners should follow the shop drawings

when they are physically impossible to carry out. She only

contends that Petitioners should follow the correct shop

drawings, and when questions arise, follow industry practice by

contacting the structural engineer about discrepancies. There is

ample evidence in the record to support the finding that

contacting the structural engineer is a feasible method of

abatement. In fact, Fabi and Pro Management did just that when
9

a discrepancy arose in a shop drawing earlier in the construction

project. There is no support to Petitioners’ contention that the

Secretary failed to put forth a feasible method of abating the top

steel hazard.

Last, Petitioners contend that they were entitled to rely upon

the expertise of specialists who completed the shop drawings

and approved the placement of top steel before Fabi poured

concrete into the pre-cast filigree tubs. For this proposition, they

cite Secretary of Labor v. Sasser Electric & Manufacturing Co.,

11 O.S.H. Cas. (BNA) 2133 (Rev. Comm’n 1984), a

Commission decision which established that reasonable reliance

upon a specialist to prevent hazards outside the contractor’s area

of knowledge and over which the contractor has little to no

control, can negate the knowledge required for a General Duty

Clause violation. Id. at 2136. As the ALJ properly found,

Sasser does not control this situation. In Sasser, a contractor

that had no experience operating cranes hired a crane operator

to move a generator onto a trailer. Id. The operator, who had

sole control over the operation of the crane, successfully loaded

the generator onto a trailer, and then suddenly swung the crane

into some power lines. Id. The entire operation took several

minutes at most. The Commission found that the contractor

reasonably relied upon the expertise of this specialist to

complete his work without creating a hazard. Id. 

Sasser does not relieve Petitioners of liability. First, the

facts in Sasser are wholly unlike those of this case. Unlike the

contractor in Sasser, Petitioners are experienced concrete

contractors that share expertise in the interpretation of shop

drawings. Also, unlike Sasser, the subcontractors who created

the shop drawings did not have sole control over them; the

President of both Fabi and Pro Management testified that he

reviewed the shop drawings, and in one instance, even directed

a revision in them. Nor did the inspectors who approved the
10

placement of reinforcing steel have sole control over it;

Petitioners interpreted the shop drawings and physically placed

the steel themselves. Even if Petitioners’ level of control was

not apparent, Sasser itself contemplates imposing liability

“when the cited hazard is under the control of a separate

company, [because] the employer has a duty to protect its

employees who are exposed to the hazards.” Id. Here, the

hazard is not under the sole control of another company; instead,

Petitioners share control over it. Sharing control is not

relinquishing control. Finally, the hazard in this case took place

over the span of several weeks at the direction of Petitioners’

management team and by the hands of Petitioners’ employees.

Petitioners had weeks to recognize and abate the hazard, unlike

the few minutes in Sasser. In short, Sasser requires reasonable

reliance on contractors. Therefore, it does not apply when an

employer has reason, by way of expertise, control, and time, to

foresee a danger to its employees. The ALJ had considerably

more evidence than is required by our deferential standard of

review to support her finding that Petitioners could not

reasonably rely on specialists to relieve themselves of liability

in this situation. 

2. Rebar

Petitioners next contend that their placement of rebar

conformed to the requirements of the General Duty Clause.

Specifically, they allege that the ALJ’s finding that they “knew

or should have known” that the placement of rebar violated

industry practice was unsupported by substantial evidence and

unreasonable. It is undisputed that the approved shop drawings

did not show rebar passing through the columns along one of the

exterior walls in the structure. Fabi and Pro Management argue

that they fulfilled their duty by placing rebar in accordance with

these drawings. But the Secretary contends that Petitioners’

duty extends beyond blindly following the shop drawings when
11

the contractor actually or constructively knows that the drawings

violate industry custom. 

There is enough evidence in the record, considered as a

whole, for a reasonable mind to conclude that Petitioners knew

their placement of rebar violated industry practice. The record

includes testimony that Petitioners at least had constructive

knowledge that failing to run rebar into columns violated

industry practice. One of the Secretary’s experts testified upon

cross-examination that a contractor like Fabi would know the

shop drawings erroneously failed to show rebar running through

the building’s columns because “it’s just typical that there’s

some bar reinforcing that goes into the support.” The ALJ found

this expert to be credible and qualified to render an expert

opinion on industry practice. Additionally, there is some

evidence in the record that Pro Management had actual

knowledge of this industry practice. Pro Management’s

Superintendent on the worksite testified that he was familiar

with the American Concrete Institute codes relevant to the work

he supervised, codes which require rebar to pass through

concrete columns. Finally, the ALJ found that Fabi is an

experienced concrete contractor, and as such, sufficiently

experienced to know that the shop drawings called for rebar

placement that violated industry custom and practice. 

However, we cannot stop our analysis of the evidence

relating to Petitioners’ knowledge of industry practice here. It

is the responsibility of the reviewing court to “take account of

anything in the record that ‘fairly detracts’ from the weight of

the evidence supporting the [Commission’s] conclusion.”

General Elec. Co. v. NLRB, 117 F.3d 627, 630 (D.C. Cir. 1997)

(citing Universal Camera, 340 U.S. at 488). In addition to the

evidence compiled above, the record contains a post-accident

report by OSHA that states the “structural engineer was in a

unique position to address the integrity of the slab beam
12

connection to the column since he had access to all the

information, including the intent of his design.” The report’s

phrasing suggests that no other person can be expected to

double-check the engineer’s judgment in this area. But

overwhelming evidence flatly rejects this proposition.

Subcontractors create shop drawings from the engineer’s plans,

and in doing so must detail the size and placement of reinforcing

steel in the flooring-column connection. Contractors like Fabi

and Pro Management are also responsible for looking over the

shop drawings, and in one instance Petitioners’ management

even contacted the engineer to change an inaccurate design plan.

One of the Secretary’s experts testified that when there is a

problem with the shop drawings, the superintendent “should

contact the structural engineer and say, ‘There’s a problem here,

what can we do to fix it?’” Under our deferential standard of

review, “we must uphold the [Commission’s] decision even if

we would have reached a different result upon de novo review.”

Federated Logistics & Operations v. NLRB, 400 F.3d 920, 923

(D.C. Cir. 2005). Taking into account the whole record, there is

still enough evidence for a reasonable mind to conclude that

Fabi and Pro Management either knew or should have known

that they violated industry practice when they failed to run rebar

through the building’s columns.

Four trade associations, all composed of construction

contractors of one sort or another, argue that Petitioners are

shielded from liability here under the so-called Spearin doctrine

drawn from United States v. Spearin, 248 U.S. 132 (1918). We

disagree. Spearin does not shield Petitioners from liability here.

Spearin dealt with contractual obligations – not OSH Act

obligations to provide a safe worksite. It “held that ‘if [a]

contractor is bound to build according to plans and

specifications prepared by the owner, the contractor will not be

responsible for the consequences of defects in the plans and

specifications.’” KiSKA Constr. Corp. v. Wash. Metro. Area
13

Transit Auth. 321 F.3d 1151, 1162 (D.C. Cir. 2003) (quoting

Spearin, 248 U.S. at 136). The KiSKA court distinguished

Spearin. In KiSKA, a contractor attempted to rely on what it

purported to be the “plain meaning” of the contract language,

but this Court found that “grammatical errors . . . render the

ambiguity of the . . . provisions sufficiently obvious that KiSKA

had a duty to inquire as to the true meaning of the contract.”

Id. at 1164. KiSKA provides more support for the Secretary’s

position that obvious inconsistencies in a shop drawing should

put the contractor on notice to inquire about them instead of

“slavishly following” incorrect drawings. See Sec’y of Labor v.

Fabi Constr., Inc., 21 O.S.H. Cas. (BNA) 1595, 1599 (Rev.

Comm’n 2006) (“While the contractor may lack the engineering

expertise to overrule or ignore the shop drawings, to hold that he

must slavishly follow them ignores the fact that the contractor

has practical experience in the field and is in a position to know

when the shop drawings are contrary to generally accepted

practice.”). As was the case in KiSKA, Spearin does not extend

to the facts before us. Petitioners knew or should have known

that the drawings upon which they relied created a serious

hazard for their employees.

Petitioners also argue that the Secretary proposed an

arbitrary and infeasible method of abating the rebar hazard.

Specifically, they argue that the ALJ’s decision about a feasible

method of abatement is incoherent. Petitioners cite a portion of

the ALJ’s Decision and Order which states “the only feasible

abatement method is to install the reinforcing steel in

conformance with the drawings in the first instance.” Fabi

Constr., 21 O.S.H. Cas. (BNA) at 1599 (emphasis added). The

ALJ later states that feasible abatement could have been

accomplished by “stopping to consult the structural engineer to

ensure that the shop drawings were either properly drawn or

interpreted.” Id. at 1601. While the ALJ’s unnecessary use of

the word “only” is imprecise, it does not deprive the decision of
14

reason. The Commission reasonably found upon ample

evidence in the record that a feasible method of abatement

would have been for Petitioners to contact the structural

engineer. Petitioners did not do so; therefore, the Commission

reasonably found they failed to abate the hazard.

Last, Petitioners again attempt to rely on Sasser to relieve

themselves of liability for violating the General Duty Clause by

failing to place rebar in accordance with industry practice. For

the reasons stated above, their reliance is misplaced.

B. Formwork Maintenance Violation, 29 C.F.R.

§ 1926.703(a)(1)

Petitioners also challenge the ALJ’s finding that they

violated 29 C.F.R. § 1926.703(a)(1) by failing to maintain

formwork so that it would be capable of supporting the imposed

loads without failure. Specifically, they claim that the

Secretary’s interpretation of “formwork” to include permanent

parts of the structure is unreasonable, failed to provide fair

notice as required by the Fifth Amendment’s Due Process

Clause, and was unsupported by substantial evidence. For the

reasons set forth below, we believe the Secretary’s interpretation

of “formwork” to include permanent parts of structures is

unreasonable, and further, that announcing this interpretation for

the first time in an adjudicatory proceeding deprived Petitioners

of fair notice. For these reasons, we grant the petition for review

of this violation and vacate both the citation and fine.

Section 1926.703(a)(1) requires formwork to be “designed,

fabricated, erected, supported, braced and maintained so that it

will be capable of supporting without failure all vertical and

lateral loads that may reasonably be anticipated to be applied to

the formwork.” The Secretary cited Fabi and Pro Management

because the slabs, composed of pre-cast concrete filigree tubs,
15

reinforcing steel, and concrete poured on site, were not capable

of supporting anticipated loads without failure. Petitioners

claim that the plain language of “formwork” in the context of

the regulation cannot include permanent parts of structures like

slabs. We agree. Since the Secretary only cited Petitioners for

failing to maintain slabs, which are permanent parts of the

structure, this violation cannot stand. 

We review Commission decisions “for consistency with the

Secretary’s interpretation and with the language of the

regulation, and for reasonableness.” S.G. Loewendick, 70 F.3d

at 1296. The text of the regulation provides some support for

the Secretary’s interpretation, but when read in the context of

the whole regulation, the Secretary’s interpretation fails to make

sense. The regulation defines formwork as “the total system of

support for freshly placed or partially cured concrete, including

the mold or sheeting (form) that is in contact with the concrete

as well as all supporting members including shores, reshores,

hardware, braces, and related hardware.” 29 C.F.R.

§ 1926.700(b)(2). “It is hornbook law that the use of the word

‘including’ indicates that the specified list . . . that follows is

illustrative, not exclusive.” P.R. Mar. Shipping Auth. v. ICC,

645 F.2d 1102, 1112 n.26 (D.C. Cir. 1981). The enumerated list

of supporting members—shores, reshores, and the like—is not

exhaustive. Seemingly, from this isolated text, “total system of

support” can include any part of the structure that supports

curing concrete. The illustrative list does, however, lend weight

to Petitioners’ argument that formwork only includes temporary

parts of structures. All the examples listed in the definition are

on site only until the concrete cures. 

The background regulatory structure demonstrates that the

Secretary’s new interpretation of formwork to include parts of

the permanent structure is beyond the bounds of reasonableness.

29 C.F.R. § 1926.703(a)(1) specifies that formwork “which is
16

designed . . . and maintained in conformance with the Appendix

to this section will be deemed to meet the requirements of this

paragraph.” The Appendix to that section provides a

“nonmandatory guideline to assist employers in complying with

formwork requirements” in the regulations. It expressly

approves

[f]ormwork which has been designed, fabricated, erected,

braced, supported, and maintained in accordance with

Sections 6 and 7 of the American National Standard for

Construction and Demolition Operations–Concrete and

Masonry Work . . . .

Within the referenced ANSI sections, Paragraph 7.1.1 provides

that:

Formwork shall be designed, fabricated, erected, supported,

braced, and maintained so that it will support all vertical

and lateral loads that may be applied until such loads can be

supported by the structure.

Given this tacit approval and assumption that formwork is

designed to hold loads in place pending the support of those

loads by the completed structure, the Secretary’s attempt to

define formwork as including permanent structure cannot be

upheld.

Not only does “formwork” appear in the definitions section

and the section under which the Petitioners received a citation,

but it also appears in § 1926.703(e), which sets forth certain

procedures prior to the “removal of formwork.” 29 C.F.R.

§ 1926.703(e). Viewed under the canon of statutory

construction known as noscitur a sociis, there are some definite

limits to the Secretary’s interpretation of formwork. Noscitur a

sociis applies where a word in a regulation is ambiguous, but
17

other text within the regulation can clarify its meaning. See Cal.

Indep. Sys. Operator Corp. v. FERC, 372 F.3d 395, 400 (D.C.

Cir. 2004). Petitioners reason that any part of a structure that

cannot be removed, even if it is part of the “total system of

support,” cannot be considered “formwork.” We agree. The

plain language of the regulation excludes permanent parts of the

structure from the definition of formwork. Although we give

“substantial deference” to the Secretary’s interpretation of

OSHA regulations, we must set it aside if the plain language of

the regulation requires another interpretation. Shalala, 512 U.S.

at 512. As a result, nonremovable parts of the structure, like

slabs that make up the floor of the parking garage at issue in this

incident, cannot be considered formwork. Therefore, any hazard

created by Petitioners’ failure to maintain the slabs cannot be the

basis for a violation of § 1926.703(a)(1). 

The near uniformity in the concrete industry’s manuals and

codes in defining formwork as temporary parts of structures

provides further support for the unreasonableness of the

Secretary’s interpretation. See, e.g., HUGH BROOKS,

ENCYCLOPEDIA OF BUILDING AND CONSTRUCTION TERMS 184

(1983) (defining formwork as “temporary wood or metal

surfaces used to contain concrete until it hardens, after which

they are removed”);JIM FRANE,DICTIONARY OF CONSTRUCTION

TERMS 216 (C.M. Harris ed., 1975) (defining formwork as “a

temporary construction to contain wet concrete in the required

shape while it is cast and setting”); W.C. HUNTINGTON,

BUILDING CONSTRUCTION 143 (1981) (defining formwork as a

“temporary structure that can be disassembled in a relatively

short period of time, that is economical, and that will support the

excessive dead and live loads”); M.K. HURD, FORMWORK FOR

CONCRETE 2-1 (6th ed. 1995) (defining formwork as a

“temporary structure that supports its own weight and that of the

freshly placed concrete”) (emphasis added to all). Practically,

it makes sense that formwork is temporary. Its purpose is to
18

support freshly poured concrete while it cures. Because wet

concrete is heavier than dry concrete, formwork is no longer

necessary when concrete is dry. 

The issue is complicated somewhat by a relatively new

form of concrete construction that Petitioners used on the

Tropicana project. This kind of construction uses what

Petitioners refer to as “a pre-cast concrete slab and beam that

serve as a permanent formwork for the cast-in-place concrete

poured on site.” Petitioners’ Br. at xv (emphasis added). One

of the Secretary’s experts also referred to the pre-cast concrete

tubs as “form.” Essentially, the pre-cast slabs and beams form

a concrete tub into which Petitioners place reinforcing steel and

pour concrete. These elements make up the floor of the

structure. Although this testimony supports the Secretary’s

theory that form can be permanent in a colloquial sense, the text

of § 1926.703(e) precludes permanent structures from the

definition of formwork in the context of the regulation.

Even the ALJ admitted the Secretary’s interpretation of

formwork is “strained.” Fabi Constr., 21 O.S.H. Cas. (BNA) at

1606 (“While the Commission is sympathetic to the employer’s

objection to the Secretary’s strained interpretation of the

standard, it cannot be concluded that her interpretation is

unreasonable.”). “In an adjudicatory proceeding, the

Commission should not strain the plain and natural meaning of

words . . . .” Bethlehem Steel Corp. v. Occupational Safety &

Health Rev. Comm’n, 573 F.2d 157, 161 (3d Cir. 1978). There

is a clear purpose behind this precedent of refusing to support

strained interpretations of agency regulations: To do so “for the

purpose of alleviating a perceived safety hazard is to delay the

day when the occupational safety and health regulations will be

written in clear and concise language so that employers will be

better able to understand and observe them.” Diamond Roofing

Co. v. Occupational Safety & Health Rev. Comm’n, 528 F.2d
19

645, 650 (5th Cir. 1976). We are hopeful that in the more than

three intervening decades since the U.S. Court of Appeals for

the Fifth Circuit decided Diamond Roofing, regulations have in

fact become more clear. We do not wish to disturb the

longstanding precedent for declining to “press [the] limits [of]

judicial construction” when OSHA can easily amend the

regulation “under the flexible regulation promulgating structure”

of the OSH Act. Id. at 649; see 29 U.S.C. § 655 (detailing the

procedures the Secretary may use to promulgate OSHA

standards). If the Secretary wants to expand the definition of

formwork to include permanent parts of structures like concrete

slabs, she has alternate means to do so outside the adjudicative

process. See Bethlehem Steel, 573 F.2d at 161 (“If the language

[in the regulation] is faulty, the Secretary has the means and the

obligation to amend.”). 

Even if the Secretary’s interpretation were reasonable,

announcing it for the first time in the context of this adjudication

deprives Petitioners of fair notice. Where, as here, a party first

receives actual notice of a proscribed activity through a citation,

it implicates the Due Process Clause of the Fifth Amendment.

See Martin v. Occupational Safety & Health Rev. Comm’n, 499

U.S. 144, 158 (1991) (noting that “the decision to use a citation

as the initial means for announcing a particular interpretation

may bear on the adequacy of notice to regulated parties”). Due

process requires the government to provide fair notice before

depriving a party of property. Jones v. Flowers, 547 U.S. 220,

226 (2006). 

Here, Petitioners received no actual warning from OSHA

officials that § 1926.703(a)(1) would include slabs in its

definition of “formwork.” See General Elec. Co. v. EPA, 53

F.3d 1324, 1329 (D.C. Cir. 1995) (opining that an agency

warning prior to a citation would provide the required notice).

As in General Electric v. EPA, we must look to the text of the
20

regulation itself to determine whether it provides the required

notice of the Secretary’s interpretation: 

[W]e must ask whether the regulated party received, or

should have received, notice of the agency’s interpretation

in the most obvious way of all: by reading the regulations.

If, by reviewing the regulations and other public statements

issued by the agency, a regulated party acting in good faith

would be able to identify, with “ascertainable certainty,” the

standards with which the agency expects parties to

conform, then the agency has fairly notified a petitioner of

the agency’s interpretation. 

Id. (citing Diamond Roofing, 528 F.2d at 649). As we discussed

above, the regulations at issue do not give Petitioners fair notice

of the Secretary’s interpretation. Prior to Petitioners’ citation,

the Secretary made no announcement or any other indication of

her intention to define formwork in this manner. Furthermore,

the overwhelming agreement among industry manuals and codes

that formwork is temporary similarly fails to provide notice. For

the reasons stated above, after a good-faith review of “the

regulations and other public statements issued by the agency, a

regulated party acting in good faith” would not be able “to

identify, with ascertainable certainty, the standards with which

the agency expects parties to conform.” AJP Constr., 357 F.3d

at 76 (quoting General Elec., 53 F.3d at 1329). For these

reasons, we grant the petition for review and vacate both the

citation and fine. 

C. Formwork Removal Violation, 29 C.F.R. § 1926.703(e)

Third, Petitioners challenge the ALJ’s finding that they

violated 29 C.F.R. § 1926.703(e)(1) by removing formwork

without properly testing the structure’s strength. Fabi and Pro

Management allege that the Secretary’s interpretation of
21

“removal” of formwork to include the step when contractors

engage in “cracking,” or lowering supporting steel several

inches to allow the structure to dry in its natural position, is

unreasonable. They also allege that the ALJ’s assessment of a

$7,000 fine when the Secretary only proposed $2,500 was

arbitrary and capricious. 

First, we assess the reasonableness of the Secretary’s

interpretation of “removal” in the context of the regulation.

Section 1926.703(e)(1) requires forms and shores to “not be

removed until the employer determines that the concrete has

gained sufficient strength to support its weight and

superimposed loads.” An employer can comply with this

regulation by following “[t]he plans and specifications . . . for

removal of forms and shores,” or by testing the concrete “with

an appropriate ASTM standard test method designed to indicate

the concrete compressive strength, and the test results indicate

that the concrete has gained sufficient strength to support its

weight and superimposed loads.” Id. There are two ways to

fulfill the regulation’s requirements: either follow a plan for

removing formwork, or use an appropriate method to test the

concrete’s strength before removing formwork. Petitioners used

the second option, but they did so seven days after pouring the

concrete. Four to five days after pouring concrete, Petitioners

“cracked” the shores that rested against the underside of the

curing concrete slabs. “Cracking” is the practice of lowering

shores several inches to allow the concrete room to sag a bit to

its natural position before retightening the shores against the

underside of the concrete. The Secretary argued, and the ALJ

agreed, that “cracking” is equivalent to removing shores, for the

simple reason that “the slab does not know that the shores have

been cracked 2 inches or it has been removed.” Fabi. Constr.,

21 O.S.H. Cas. (BNA) at 1604. 
22

“The removal of forms and shores,” 29 C.F.R.

§ 1926.703(e)(1), can be interpreted to mean only the final

removal of shores, or to include the initial cracking of shores

that takes place weeks before shores are finally removed. Since

the definition of “removal” in the regulation is ambiguous, we

must give substantial deference to the Secretary’s interpretation,

and will only set it aside if it is “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.”

Allentown, 522 U.S. at 377. Petitioners’ and the Secretary’s

experts testified to the fact that after workmen crack the shores,

the shores no longer support the underside of the drying concrete

slab. Since the purpose ofshoring isto support curing concrete,

it is “removed” when cracked. The Secretary’s interpretation is

reasonable, especially in light of the stated purpose of the OSH

Act—“to assure so far as possible every working man and

woman in the Nation safe and healthful working conditions and

to preserve our human resources.” 29 U.S.C. § 651(b). For this

reason, we deny review of this citation.

We do, however, grant review of the fine assessed for

Petitioners’ § 1926.703(e)(1) violation. We review this fine

under our familiar arbitrary and capricious standard. The

Secretary proposed a $2,500 fine for this citation. The ALJ

“assessed [the fine] as proposed” by the Secretary, and without

further explanation, raised the fine to $7,000. Fabi. Constr., 21

O.S.H. Cas. (BNA) at 1608. There must be an “adequate factual

basis” for almost tripling the penalty proposed by the Secretary.

See Sec’y of Labor v. J.A. Jones Constr. Co., 15 O.S.H. Cas.

(BNA) 2201, 2202 (Rev. Comm’n 1993). The ALJ apparently

did not recognize she was deviating from the Secretary’s

proposed fine of $2,500; in any event, she did not explain her

reason for imposing a fine of $7,000. Therefore, we remand the

fine to the Commission to explain why it deviated from the

$2,500 fine proposed by the Secretary.
23

D. Single-Entity Rule

Finally, Petitioners challenge the ALJ’s finding that they

can be treated as a single entity for OSH Act purposes. The

Commission treats companies as a single entity when (1) they

share a common worksite, (2) have interrelated and integrated

operations, and (3) share a common president, management,

supervision, or ownership. Sec’y of Labor v. C.T. Taylor Co. &

Espirit Constructors, Inc., 20 O.S.H. Cas. (BNA) 1083, 1086

(Rev. Comm’n 2003). This rule allows the Secretary to use any

violations against companies treated as a single entity against

them in either their individual or combined-entity capacities in

later proceedings. Id. at 1087 n.7. 

We decline to address this argument because Petitioners

failed to raise it before the Commission. “No 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.” 29

U.S.C. § 660(a). Petitioners did not object to being treated as a

single entity before the Commission; therefore, they have

waived their argument that the two companies should be treated

separately for OSHA purposes. For this reason, we deny this

petition for review.

Even if Petitioners had not waived this argument, there is

substantial evidence that Fabi Construction and Pro

Management can be treated as a single entity for OSHA

purposes. The Secretary elicited testimony from the President

of both entities that he is the sole owner, officer, and shareholder

of both companies. The companies share a common main office

and office workers, and employees of Pro Management

supervise Fabi Construction employees at the worksite. Pro

Management’s Superintendent on the worksite even identified

himself as an employee of Fabi Construction to an OSHA
24

official. The three prongs of the “single-entity test” are met: the

companies “share a common worksite, have interrelated and

integrated operations, and share a common president,

management, supervision, or ownership.” Sec’y of Labor v.

Trinity Indus., Inc., 9 O.S.H. Cas. (BNA) 1515, 1518 (Rev.

Comm’n 1981). 

III. Conclusion

For the reasons set forth above, the petition for review is

Granted in part and denied in part.