## Facts

- P. Gioioso & Sons, Inc., a construction contractor, performed trenching and water-line installation work at a Massachusetts roadway site.
- OSHA inspected the site and cited the employer for trench-safety violations, including inadequate cave-in protection, allowing employees to work beneath a suspended pipe load, and providing inadequate ladder access/egress.
- OSHA characterized the citations as serious and repeat.
- The employer contested the citations before an administrative law judge (ALJ), disputing the existence of violations and asserting the affirmative defense of unpreventable employee misconduct.
- The employer moved to disqualify the ALJ based on alleged bias stemming from the ALJ’s prior role prosecuting a similar matter involving the employer; the ALJ denied the motion.
- After hearing, the ALJ found violations, rejected the unpreventable-misconduct defense, and assessed penalties.
- The employer sought discretionary review by the Occupational Safety and Health Review Commission, expressly presenting three issues; the recusal point appeared only as a brief footnote reference.
- The Commission did not grant review, making the ALJ decision the Commission’s final order by operation of law.
- On petition for review in the First Circuit, the employer raised six objections, including issues not clearly presented to the Commission (including ALJ recusal).

## Issues

1. Whether 29 U.S.C. § 660(a) deprives a court of appeals of authority to consider objections not “urged before the Commission,” absent extraordinary circumstances, and whether a footnote reference sufficiently preserves an ALJ-recusal challenge.
2. Whether substantial evidence supported the Commission’s findings that the employer violated OSHA trenching and suspended-load standards.
3. Whether the employer proved the affirmative defense of unpreventable employee misconduct.

## Decision

- The court held it lacked authority to consider objections not properly urged before the Commission; a passing footnote reference did not preserve the ALJ-recusal claim as a distinct objection.
- The court found no extraordinary circumstances excusing the failure to present the additional objections to the Commission.
- On the preserved objections, the court denied relief on the merits, holding that substantial evidence supported the findings of violations.
- The court affirmed the rejection of the unpreventable employee misconduct defense because the employer did not prove effective enforcement and monitoring.
- Petition for review denied; the Commission’s final order affirmed.

## Legal Principles

- Under 29 U.S.C. § 660(a), a court of appeals may not consider an objection that was not urged before the Commission unless extraordinary circumstances excuse the omission.
- Issue preservation requires a clear presentation sufficient to alert the Commission to the objection as a separate claim of error; a fleeting or embedded reference is inadequate.
- Commission factual findings are upheld if supported by substantial evidence on the record as a whole; appellate courts generally defer to credibility determinations supported by the record.
- The unpreventable employee misconduct defense requires proof of (1) work rules designed to prevent the violation, (2) adequate communication of the rules, (3) steps to discover violations, and (4) effective enforcement when violations are found.

## Conclusion

The First Circuit enforced the OSH Act’s issue-preservation requirement by refusing to consider objections not distinctly urged before the Commission, and it affirmed the Commission’s findings of trench-safety violations and the rejection of the employer’s unpreventable employee misconduct defense for lack of proof of effective enforcement.


P. Gioioso & Sons, Inc. v. Occupational Safety & Health Review Comm’n, 115 F.3d 100 (1st Cir. 1997)