UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-2464

URS FEDERAL SERVICES, INC.,

Petitioner,

v.

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION; EUGENE SCALIA, Secretary, U.S. Department of Labor; UNITED STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order of the Occupational Safety and Health Administration. (18-0278)

Submitted: January 7, 2021 Decided: February 17, 2021

Before GREGORY, Chief Judge, DIAZ, and QUATTLEBAUM, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Alana F. Genderson, Alexander S. Malson, Washington, D.C., Jason S. Mills, MORGAN, LEWIS & BOCKIUS LLP, Los Angeles, California, for Petitioner. Kate S. O’Scannlain, Solicitor of Labor, Edmund C. Baird, Associate Solicitor for Occupational Safety and Health, Charles F. James, Counsel for Appellate Litigation, Jessica L. Cole, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

URS Federal Services, Inc. (“URS”), petitions for review of a final order, issued by

the Occupational Safety and Health Review Commission (“the Commission”), upholding

a citation and penalty for URS’s serious violation of

(d)(1). Finding

no reversible error, we deny the petition.

On review of a decision by the Commission, “the determination of the

[Commission] shall be conclusive if supported by substantial evidence in the record

considered as a whole.” Forging Indus. Ass’n v. Sec’y of Labor,

(4th

Cir. 1985) (brackets and internal quotation marks omitted); see

(a).

Consequently, “we must affirm a Commission determination supported by substantial

evidence even though we might reach a contrary result in a proceeding de novo.” Scalia

v. Wynnewood Ref. Co.,

(10th Cir. 2020) (internal quotation marks

omitted). In this context, substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Forging Indus. Ass’n,

(internal quotation marks omitted).

To sustain a citation for violating “an occupational safety or health standard, the

Secretary [of Labor] must prove by a preponderance of the evidence (1) the applicability

of the standard, (2) the employer’s noncompliance with the terms of the standard,

(3) employee access to the violative condition, and (4) the employer’s actual or

constructive knowledge of the violation.” N & N Contractors, Inc. v. Occupational Safety

& Health Rev. Comm’n,

, 125-26 (4th Cir. 2001). Here, the sole disputed

2 issue is whether substantial evidence supports the determination that URS had constructive

knowledge of the violation. *

“An employer has constructive knowledge of a violation if the employer fails to use

reasonable diligence to discern the presence of the violative condition.” Id. at 127.

“Factors relevant in the reasonable diligence inquiry include the duty to inspect the work

area and anticipate hazards, the duty to adequately supervise employees, and the duty to

implement a proper training program and work rules.” Id.

At a trial before an administrative law judge (ALJ), the evidence established that

one of URS’s employees, a welder, suffered severe injuries when, in violation of

(d)(1), he used a grinder and grinding stone that were incompatible with one

another. In finding that URS failed to exercise reasonable diligence to discover the

violation, the ALJ cited, among other things, URS’s failure to show that it trained each of

its welders on the compatibility requirement, as well as testimony from the injured welder’s

supervisor indicating that the supervisor was unaware of the compatibility requirement and,

thus, could not ensure his subordinates’ compliance with this safety protocol. Because our

review of the record confirms that substantial evidence supports these findings, we

conclude that the ALJ properly charged URS with constructive knowledge of the violation.

* URS also contends that the violation resulted from unpreventable employee misconduct. But because URS did not present this claim to the Commission in its petition for discretionary review, we do not consider this argument here.

(a); see Frank Lill & Son, Inc. v. Sec’y of Labor,

(D.C. Cir. 2004).

3 Accordingly, we deny the petition for review. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

PETITION DENIED

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