Case: 22-60399 Document: 00516825855 Page: 1 Date Filed: 07/19/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 19, 2023
No. 22-60399 Lyle W. Cayce
Clerk
TNT Crane & Rigging, Incorporated,
Petitioner,
versus
Occupational Safety and Health Review Commission;
Julie A. Su, Secretary, U.S. Department of Labor,
Respondents.
Petition for Review of Orders of the
Occupational Safety and Health Review Commission
Agency No. 16-1587
Before Barksdale, Southwick, and Higginson, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
A company providing crane services petitioned this court to overturn
final orders of the Occupational Safety and Health Review Commission.
Those orders reversed decisions by an administrative law judge that were
favorable to the company. The principal dispute is whether regulations
applicable to the disassembly of a crane apply to the tragic accident that
occurred here.
We conclude the Commission applied the proper regulations and
DENY the petition for review.
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No. 22-60399
FACTUAL AND PROCEDURAL BACKGROUND
TNT Crane & Rigging, Inc. is a crane-service provider located in
Houston, Texas. It was cited by the Occupational Safety and Health Review
Commission (“the Commission”) for the serious injury of an employee that
occurred on May 15, 2016. On that day, TNT sent a two-man crew, consisting of Jeff Benson and Mark Ryan, to install antennas on a communications
tower in Georgetown, Texas, using a 275-ton mobile crane. After Benson
and Ryan completed the installation, the next task was to disassemble the
crane and load it onto a semi-truck trailer. TNT dispatched to the worksite
two additional employees, Joseph Larison and Freddie Ray, to assist with the
disassembly. Benson acted as the crew’s supervisor.
To prepare for the crane’s disassembly, Benson created a job safety
analysis. Benson and the crew discussed a plan for “breaking the crane
down” and loading it onto the trailer. Ray and Larison expressed concern
about Benson’s proposal to disassemble the crane near an energized 14,400-
volt power line but agreed to the plan based on Benson and Ryan’s assurances
they had assembled the crane in the same location.
The plan called, first, for Benson to lower the boom to allow Larison
to remove the “block,” the mechanism that allowed the crane’s rigging to be
attached to an item for lifting, from the “becket,” a metal connection device
at the end of the crane’s hoist line. After the block was removed, Larison
would hold the becket with his hands to keep the hoist line taut while Benson
reeled in the hoist line and further lowered the boom to lay it on the bed of a
trailer. Ray would drive the truck and trailer into position to receive the
boom, with Ryan guiding him. Once the boom was on the bed of the trailer,
the crew would continue the process by disconnecting the jib from the boom
by removing metal pins.
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Shortly after discussing the plan, the crew began to execute it. Larison
removed the block from the becket, and Ray and Ryan began moving the
truck and trailer into position. As Benson started lowering the boom and
reeling in the hoist line and Larison held the becket, Larison noticed the hoist
line was getting close to the power line and “gave the signal to swing right,
[and] then started yelling.” Moments later, the hoist line contacted the energized power line, giving Larison a severe electrical shock. Larison was hospitalized with serious injuries.
TNT reported the accident and employee hospitalization to the Occupational Safety and Health Administration (“OSHA”), which prompted
an investigation. OSHA conducted an inspection and issued TNT a citation,
alleging two serious violations of the Cranes and Derricks in Construction
Standard under 29 C.F.R. § 1926.1407, with a proposed penalty of $24,942.
Item 1 alleges TNT violated Section 1926.1407(b)(3) by exposing employees
to the hazard of electrical shock by failing to use at least one of the measures
required to prevent encroachment or contact with the power lines while disassembling the crane. Item 2 alleges TNT violated Section 1926.1407(d) by
placing “[p]art of a crane/derrick, load line, or load (including rigging and
lifting accessories), whether partially or fully assembled, . . . closer than the
minimum approach distance under Table A (see 1926.1408) to a power line.”
On September 14, 2018, after a two-day hearing, the administrative
law judge (“ALJ”) issued a decision in favor of TNT, finding the cited regulations did not apply to the work performed. The Secretary of Labor (“the
Secretary”) filed a Petition for Discretionary Review with the Commission.
On March 27, 2020, the Commission reversed and remanded the ALJ’s decision. Sec’y of Lab. v. TNT Crane & Rigging, Inc., No. 16-1587, 2020 WL
1657789 (OSHRC Mar. 27, 2020). On remand, the ALJ again found in favor
of TNT, holding the Secretary failed to show the crane operator’s violative
conduct was foreseeable. On June 2, 2022, after the Secretary filed a Petition
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for Discretionary Review, the Commission again reversed the ALJ’s decision. Sec’y of Lab. v. TNT Crane & Rigging, Inc., No. 16-1587, 2022 WL
2102910 (OSHRC June 2, 2022).
TNT timely petitioned this court for review of the Commission’s decisions.
DISCUSSION
This court’s review of the Commission’s decisions under the Administrative Procedure Act is “narrow and highly deferential” to the agency.
Medina Cnty. Env’t Action Ass’n v. Surface Transp. Bd., 602 F.3d 687, 699
(5th Cir. 2010). Under
29 U.S.C. § 660(a), the court “must accept factual
findings of the Commission if they are supported by substantial evidence on
the record considered as a whole,” and “if a reasonable person could have
found what the [Commission] found, even if the appellate court might have
reached a different conclusion.” Angel Bros. Enters. v. Walsh,
18 F.4th 827,
830 (5th Cir. 2021) (quotation marks and citations omitted) (alteration in
original). The Commission’s legal conclusions must 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); see also Angel Bros.,
18 F.4th at 830.
The Secretary establishes a violation of an OSHA standard by demonstrating “by a preponderance of the evidence: (1) that the cited standard applies; (2) noncompliance with the cited standard; (3) access or exposure to
the violative conditions; and (4) that the employer had actual or constructive
knowledge of the conditions through the exercise of reasonable due diligence.” Angel Bros., 18 F.4th at 830 (quotation marks and citation omitted).
Here, the Secretary alleges violations of
29 C.F.R. § 1926.1407(b)(3) and (d),
two provisions located in a section of the construction crane standard entitled
“Power line safety (up to 350 kV) — assembly and disassembly.”
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TNT challenges the Commission’s determinations that the Secretary
established the first and fourth elements, i.e., that Section 1926.1407 applied
and that TNT had knowledge of the violative conduct. Specifically, TNT
argues the Commission abused its discretion in determining that the plain
meaning of the term “disassembly” as used in Section 1926.1407 includes
acts preparatory to disassembling a crane. Alternatively, TNT asserts that if
the standards did apply to TNT’s work at the time of the accident, the Commission erred by failing to apply the foreseeability exception to the knowledge
element and by finding TNT did not prove its employee misconduct affirmative defense.
We analyze these arguments in that order.
I. Element 1: the standard’s applicability to the cited condition
In construing a regulation, we “give effect to the natural and plain
meaning of” the regulation’s words. Diamond Roofing Co. v. OSHRC, 528
F.2d 645, 649 (5th Cir. 1976). When the regulation is silent or genuinely ambiguous, we decide whether the agency’s interpretation is reasonable and entitled to deference. Kisor v. Wilkie,
139 S. Ct. 2400, 2415–18 (2019). We
defer to the Secretary’s reasonable interpretations of ambiguous standards.
Martin v. OSHRC (CF&I),
499 U.S. 144, 152, 158 (1991); accord Delek Refining, Ltd. v. OSHRC,
845 F.3d 170, 175 (5th Cir. 2017). Before determining
whether the standard’s meaning is ambiguous, we must use “all the traditional tools of construction,” i.e., carefully consider the standard’s “text,
structure, history, and purpose.” Kisor,
139 S. Ct. at 2415 (quotation marks
and citation omitted); see also Delek,
845 F.3d at 175.
The question here is whether Section 1926.1407’s definition of “disassembly” encompasses preliminary activities such as lowering a crane’s
boom and retracting the hoist line for the purpose of disassembly, or, instead,
encompasses only the physical disassembly itself.
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a. Plain meaning of “disassembly”
Section 1926.1407(a) states, “[b]efore assembling or disassembling
equipment, the employer must determine if any part of the equipment, load
line, or load (including rigging and lifting accessories) could get, in the direction or area of assembly/disassembly, closer than 20 feet to a power line during the assembly/disassembly process.” The definition section of the standard defines “Assembly/Disassembly” as
the assembly and/or disassembly of equipment covered under this
standard. With regard to tower cranes, “erecting and climbing” replaces the term “assembly,” and “dismantling” replaces the term “disassembly.” Regardless of whether the
crane is initially erected to its full height or is climbed in stages,
the process of increasing the height of the crane is an erection
process.
§ 1926.1401 (emphasis added). The parties agree that tower cranes are not
involved here.
TNT maintains the Commission abused its discretion in concluding
the natural and plain meaning of “disassembly” as used in the standard encompasses activities preliminary to disassembly. TNT contends the ALJ correctly determined these provisions do not apply to the specific activity its
crew was engaged in at the time of the accident — lowering the crane’s boom
and retracting the hoist line — because, at that point, they had not yet begun
to physically disassemble equipment.
We begin our analysis with the above definition of “Assembly/Disassembly” in Section 1926.1401. TNT argues the Commission ignored the remaining part of the definition: “assembly and/or disassembly of equipment
covered under this standard.” § 1926.1401 (emphasis added). TNT asserts
that, by inserting “of equipment” into the definition, “disassembly” plainly
refers to the physical disassembly of the crane and does not encompass actions
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taken during a crane’s normal operations. According to TNT, the Commission’s broader reading of disassembly would leave employers to speculate at
what point normal operation ends and disassembly begins.
We do not agree that the Commission’s interpretation necessarily
leaves regulated employers to speculate. We do conclude, though, that the
definition in the regulation is not particularly helpful here. We examine the
text and structure of the crane standard for any clarity.
TNT argues that surrounding provisions, specifically Sections
1926.1404(h)(4) and 1926.1407(a), support its assertion that “disassembly”
refers to the physical disassembly of the crane itself, because the regulations
distinguish the actions needed to be taken before “disassembly.” 1 Thus,
TNT contends there is a clear dividing line between the actions required “before assembly/disassembly begins” and “[b]efore assembling or disassembling equipment.” See §§ 1926.1404(h)(4), 1926.1407(a). TNT also maintains that the references to the removal of pins in Subsections 1926.1404(f)
and (h) and Section 1926.1405 establish that disassembly is limited to the actual removal of the crane’s components.
We see these arguments as focusing too much on isolated words and
phrases. The Commission identified several provisions 2 that “read as a
1
29 C.F.R. § 1926.1404(h)(4) states, “[w]hen using an assist crane, the loads that
will be imposed on the assist crane at each phase of assembly/disassembly must be verified
. . . before assembly/disassembly begins.” (emphasis added). Section 1926.1407(a) requires
the employer to determine, “[b]efore assembling or disassembling equipment,” whether
any part of the crane could come within 20 feet of a power line during the
assembly/disassembly process. (emphasis added).
2
For example, the Commission cited to 29 C.F.R. § Section 1926.1407(d), which
expressly applies to a fully assembled crane: “[n]o part of a crane/derrick, load line, or load
. . . whether partially or fully assembled, is allowed closer than the minimum approach
distance under Table A.” TNT Crane, 2020 WL 1657789, at *4 (emphasis and alterations
in original). The Commission also determined that various provisions discuss processes
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whole establish that active removal of a crane’s components is not a prerequisite for the cited provisions to apply.” See TNT Crane, 2020 WL 1657789,
at *4–5. Most of the assembly/disassembly requirements in other sections,
see generally §§ 1926.1404–1407, “are phrased broadly and by their nature
require actions that must be initiated as part of the assembly/disassembly
process before pin or component removal even begins.” TNT Crane,
2020
WL 1657789, at *4 (citing five examples). For instance, the Commission explained that the three options listed under Section 1926.1407 for addressing
power line safety in the assembly/disassembly process all involve actions that
must occur before any actual dismantling takes place.
Id. (citing §
1926.1407(a)(1), (b)(1)). Additionally, other provisions in Section 1926.1407
demonstrate the standard expressly applies to “fully assembled” equipment,
indicating applicability is not limited to when equipment is physically dismantled. 3 Furthermore, other provisions in Section 1926.1407 also concern
actions that occur before equipment is physically dismantled. 4
that must take place “as part of the assembly/disassembly process before pin or component
removal even begins.” Id. (citing § 1926.1404(e), (g), (h)(1), (h)(4), (h)(12)).
3
For example, where the power line in the work area has not been deenergized and
grounded, Section 1926.1407(d) prohibits the employer from conducting any disassembly
work while part of the equipment, load line, or load, “whether partially or fully assembled,”
is within the minimum clearance distance permitted for the power line’s voltage level under
Table A. (emphasis added). Similarly, Section 1926.1407(c) prohibits disassembly work
below an energized power line and expressly applies to “partially or fully assembled”
equipment.
4
For instance, Section 1926.1407(e) requires utility owners or operators to provide
power line voltage information to employers within a certain timeframe to permit the
employer to use Option 3 for complying with 1926.1407(a)(1), and Section 1926.1407(g)
requires the posting of electrocution warnings, both of which occur before equipment is
dismantled. Section 1926.1407(f)’s requirement that employers “assume that all power
lines are energized unless the utility owner/operator confirms that the power line has been
and continues to be deenergized and visibly grounded” contemplates that the employer
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We conclude that the standard’s surrounding text and structure does
not limit disassembly to physically dismantling equipment.
We also look to the preamble to the crane standard’s final rule for
guidance. In one part of the preamble, OSHA identifies the activity at issue
here — lowering a boom to position it for dismantling — as an example of
when the assembly/disassembly power line assessment requirement in Section 1926.1407(a) applies:
For example, when disassembling a crane, the disassembly process takes place in an area that includes the area under and
around the boom’s path as it is lowered to the ground (in most,
but not all cases, the boom is lowered to the ground for the disassembly process). Under [Section 1926.1407(a)], the employer must assess the proximity that the boom will be in to the
power line in its path of travel to (and on) the ground.
Cranes and Derricks in Construction; Final Rule, 75 Fed. Reg. 47,906,
47,945–46 (Aug. 9. 2010).
The final rule preamble also explains that the prohibition against assembly/disassembly below power lines in Section 1926.1407(c) applies to a
“fully assembled” crane: “in both assembly and disassembly, maneuvering an
assembled crane out from under the power lines, or maneuvering a crane that
is about to be disassembled under them, itself poses a high risk of [power line]
contact.” Id. at 47,949 (emphases added). Additionally, the preamble to the
proposed rule explains that OSHA added the reference to “disassembly” because “[t]he employer needs to evaluate power lines with respect to . . . the
direction or area of disassembly when preparing to disassemble the crane.”
will adopt that assumption before any equipment is dismantled and maintain it throughout
the disassembly process.
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Cranes and Derricks in Construction; Proposed Rule, 73 Fed. Reg. 59,714,
59,750 (Oct. 9, 2008) (emphasis added).
The Commission correctly found that these statements support the
broader interpretation of “disassembly” as a process that can begin before
physical dismantling. See TNT Crane, 2020 WL 1657789, at *6. These provisions confirm that, when a boom is lowered to allow it to be dismantled, the
action of lowering the boom is part of the disassembly process to which Section 1926.1407 applies. See
id. Construing Section 1926.1407 as applicable
to steps of a disassembly process that precede the physical dismantling of
equipment, such as lowering a boom into position for dismantling, comports
with OSHA’s intent for Section 1926.1407 to protect employees from power
lines throughout the entire disassembly phase. See 75 Fed. Reg. at 47,944.
TNT urges us to rely on a different statement in the final rule preamble to support its narrow interpretation of “disassembly”:
Irrespective of whether the crane is initially erected to its full
height, or is “jumped” in stages, the process of increasing the
height of the crane is an assembly/erection process. Sections
1926.1403 through 1924.1406 apply whenever the crane’s
height is modified. To ensure that this intent is reflected in the
standard, OSHA has added a sentence to the definition of “assembly/disassembly” in § 1926.1401 to this effect.
See id. at 47,936. TNT asserts the ALJ was correct in finding that this “language focuses on the addition or removal of structural components, i.e., pins,
and provides a strong indication that mere removal of the block and lowering
of the boom is insufficient for application of the cited standards.” TNT contends the Commission improperly ignored this statement, which evinces that
the physical process of changing the crane’s height is part of its assembly/erection process.
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We agree with the Commission’s determination that TNT’s proffered statement in the preamble is inapplicable because it “was in response
to a commenter’s question specific to tower cranes, which is not the type of
crane at issue here.” See TNT Crane, 2020 WL 1657789, at *7. In this statement, OSHA was responding to a comment regarding the applicability of
Sections 1926.1403–1406 to the process of adding sections to a fully assembled tower crane to increase its height (referred to as “jumping” or “climbing”). See 75 Fed. Reg. at 47,936. OSHA therefore included language in the
definition of “Assembly/Disassembly” to clarify that “jumping” is considered assembly work. See id.
Finally, TNT argues the Commission erroneously dismissed an unreviewed ALJ decision that discusses crane disassembly. See Sec’y of Lab. v.
Steel Constructors, Inc., 1980 OSHD (CCH) ¶ 24788,
1980 WL 10389 (No.
78-3839, 1980) (ALJ). In that case, the citation alleged the employer allowed
an employee to disassemble an unsupported boom section of a truck crane.
Id. at *4. The ALJ vacated the citation based in part on his finding that the
disassembly of the boom section had not yet begun because the equipment
necessary for its dismantling had not yet been brought to the worksite and the
boom was not yet resting on the ground.
Id. at *4–6.
The Commission correctly determined Steel Constructors is inapplicable because it was issued three decades before the cranes standard was promulgated, “so it did not involve the term ‘disassembly’ within the context of
that standard or even an analogous standard.” See TNT Crane, 2020 WL
1657789 at *7. Additionally, as the Commission noted, the facts of Steel Constructors are distinguishable. Unlike here, where TNT’s crew gathered to
disassemble a crane, set a plan for doing so, and then collectively put the plan
into motion, the employer in Steel Constructors was still acquiring materials
necessary to disassemble the equipment when a rogue employee began
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removing pins from a boom on his own initiative. See Steel Constructors, 1980
WL 10389, at *1–2, *7.
The Commission did not abuse its discretion in concluding that, based
on the crane standard’s text, structure, and history, Subsections
1926.1407(b)(3) and (d) unambiguously apply to all steps in a crane disassembly process, including preliminary steps that occur before any equipment is
actually taken apart. See TNT Crane, 2020 WL 1657789, at *3–5. It therefore
follows that the standard applied when TNT’s crew attempted to lay the
boom on a trailer to allow the boom to be physically dismantled. See
id.
TNT argues, though, that the Commission abused its discretion in
concluding that, even if the term “disassembly” is ambiguous, the Secretary’s interpretation must be given deference because it is reasonable in light
of the standard’s purpose and regulatory history. See id. at *5–8. Because
we conclude the term “disassembly” is not ambiguous, we need not reach
this issue.
b. Substantial evidence analysis
TNT avers the Commission’s determination that the citations applied
to its work at the time of the incident is not supported by substantial evidence.
TNT contends the ALJ correctly found that “[t]he facts presented at trial . .
. clearly established that disassembly of the crane was about to begin, but had
not actually started.” According to TNT, disassembly would not begin until
the actual removal of the first section of the jib, which had not yet occurred
when contact was made with the power line. Rather, the accident occurred
during preparatory actions — Benson was lowering the boom and retracting
the hoist line. TNT also relies on the fact that when the accident occurred,
none of the equipment necessary to disassemble the crane, including the
helper crane, was in position. Additionally, TNT asserts the OSHA inspector lacked credibility and his investigation was conducted improperly, as he
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had no personal knowledge of the crane industry and his inspection merely
consisted of witness interviews.
The Commission determined that, when TNT’s crew lowered the
boom in an attempt to lay it on the trailer for dismantling, the action was part
of the crane disassembly process. Certainly, lowering the boom onto the
trailer was part of the plan for disassembling the boom, and the boom was
lowered to position it for dismantling. Additionally, all four crew members
gave statements to OSHA during the inspection indicating that the disassembly process had begun when the boom was lowered. Therefore, the Commission’s determination that lowering the boom and retracting the hoist for the
purpose of disassembly qualified as disassembly work under Section
1926.1407 is supported by substantial evidence.
Accordingly, the Commission did not abuse its discretion in applying
the standard’s plain meaning to TNT’s work during the incident — a crew
gathered to discuss the plan for disassembling the crane and executed the first
step of the plan, attempting to lay the boom of the crane on a trailer to position the boom for dismantling.
II. Element 4: TNT’s knowledge of the violative conditions
The employer is liable only if it knew, “or ‘with the exercise of reasonable diligence, [should have known] of the presence of the violation.’”
W.G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604, 607 (5th Cir. 2006)
(quoting
29 U.S.C. § 666(k)). Because “[a] corporation can only act through
its agents,” “a corporation is usually liable for acts of its supervisors in the
performance of their assigned duties” and is charged with “the supervisor’s
knowledge . . . of non-complying conduct of a subordinate.”
Id. (quotation
marks and citations omitted). The Yates court created an exception to the
general imputation rule, however: “[A] supervisor’s knowledge of his own
malfeasance is not imputable to the employer where the employer’s safety
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policy, training, and discipline are sufficient to make the supervisor’s conduct in violation of the policy unforeseeable.” Id. at 608–09 (emphasis in
original).
In Yates, a supervisor’s “own conduct,” and not that of his subordinates, violated an OSHA standard. Id. at 607. We contrasted that situation
— where the supervisor was “himself the malfeasant [and] personally act[ed]
contrary to instructions” — to the “ordinary context” where a subordinate
violates a standard and “the supervisor’s knowledge of [the] employee’s unsafe conduct is imputable to his ‘master’, the employer.”
Id. at 609 n.7. In
the former situation, we reasoned it would unfairly relieve the Secretary of
his burden to prove employer knowledge if a supervisor’s knowledge of his
own misconduct was automatically imputed to the employer.
Id. at 607–09.
We confirmed this distinction in Angel Bros., 18 F.4th at 830–32. That
case concerned a situation similar to the one here, where a supervisor had
actual knowledge of a subordinate employee’s working in an unguarded
trench, which violated an OSHA standard. Id. at 829. The court found the
Yates exception was inapplicable because the supervisor’s actions did not
constitute the cited violation; rather, “the safety violation was the presence
of [the subordinate] . . . in the unsafe trench.”
Id. at 832. The court reasoned
that any claim “that a supervisor’s knowledge cannot be imputed to the employer when the supervisor authorizes, or takes some other active role in, a
subordinate’s safety violation” has “no support in Yates, in agency principles, or in other caselaw.”
Id.
The parties dispute whether the Yates foreseeability exception applies
here. TNT maintains the ALJ correctly determined on remand that the exception applies and that, consequently, the Secretary failed to prove TNT
had knowledge of the violative conditions. Furthermore, TNT argues Angel
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Bros. is distinguishable and Yates is more analogous because, here, Benson
engaged in the violation. We disagree.
The Commission correctly determined the Yates exception does not
apply, because all the TNT crew members were engaged in the violative conduct under each citation item, and, accordingly, Benson’s knowledge of his
crew’s misconduct was automatically imputed to TNT. See TNT Crane,
2022 WL 2102910, at *3–4. Contrary to TNT’s assertion that only Benson
committed the violations, substantial evidence supports the Commission’s
finding that all four TNT employees collectively worked to disassemble the
crane without a measure in place to prevent encroachment on the energized
power line and when the hoist line was closer than 10 feet from the power
line. See
id. at *3.
In addition, even though the supervisor in Angel Bros. did not engage
in the violation alongside his subordinate, both in Angel Bros. and here, a subordinate employee engaged in conduct that violated the standard(s), a supervisor had knowledge of the subordinate’s conduct, and that knowledge is imputed to the employer under “[o]rdinary imputation principles.” See Angel
Bros., 18 F.4th at 832. Consequently, the Commission did not abuse its discretion in finding that the Yates foreseeability exception did not apply here
and that Benson’s knowledge of his subordinates’ conduct violating Subsections 1926.1407(b)(3) and (3) established TNT’s knowledge of the violations.
III. Affirmative defense of unpreventable employee misconduct
TNT can avoid liability if it shows “that the violation resulted from
unpreventable employee misconduct.” See id. TNT must prove, for each
violation, that it: “1) ha[d] established work rules designed to prevent the
violation, 2) ha[d] adequately communicated these rules to its employees, 3)
ha[d] taken steps to discover violations, and 4) ha[d] effectively enforced the
rules when violations [were] discovered.” See
id. at 832 (quoting Yates, 459
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F.3d at 609 n.7). TNT’s burden is high because employers have a “heightened duty to ensure the proper conduct of [supervisory] personnel,” and
Benson’s participation in the violative conduct “is strong evidence that implementation of the [safety] policy was lax.” See Floyd S. Pike Elec. Contractor, Inc. v. OSHRC, 576 F.2d 72, 77 (5th Cir. 1978) (quotation marks and citation omitted).
First, substantial evidence supports the Commission’s determination
that TNT did not have a work rule designed to prevent violations of Section
1926.1407(b)(3). 5 See TNT Crane, 2022 WL 2102910, at *5. “[A] work rule
is an employer directive that requires or prescribes certain conduct” and, to
be adequate, must “specifically match the violation at issue.” Southern Hens,
Inc. v. OSHRC,
930 F.3d 667, 678 (5th Cir. 2019) (quotation marks and citation omitted). TNT points to section 13 of its Safety Operating Procedures,
which contains rules addressing “Electrical Hazards and Warnings
(1926.1411).” 6 As the Commission stated, section 13 does not address
5
The Commission found TNT’s work rules addressed the requirements of Section
1926.1407(d) and that TNT adequately communicated these rules to its employees. TNT
Crane, 2022 WL 2102910, at *5–6. The parties do not contest these findings.
6
Section 13 of TNT’s safety policy states:
For lines rated 50kV or below, minimum clearance between the lines and
any part of the crane or load shall be 10 feet. During the pre-job meeting
any power lines that are located in the work area will be identified and
discussed. If it is determined that any part of the equipment, load line or
load could get closer than 20 feet to a power line then at least one of the
following measures must be taken: 1) Ensure the power lines have been deenergized and visibly grounded, 2) Ensure no part of the equipment, load
line or load gets closer than 20 feet to the power line, or 3) Determine the
line’s voltage and minimum approach distance permitted.
When moving cranes around electrical equipment a spotter must be in
place to assist Operator or have a back up alarm that is audible above the
surrounding noise level.
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No. 22-60399
Section 1926.1407(b)(3)’s express mandate that an employer implement at
least one of the five listed measures to prevent encroachment on an energized
power line during a disassembly process. TNT Crane, 2022 WL 2102910, at
*5. The only measure section 13 mentions — designating a spotter — is insufficient, as it does not clearly establish “when a spotter is ‘necessary’ or
otherwise required.” See
id.
Second, substantial evidence supports the Commission’s determination that TNT did not adequately monitor employee compliance with its
power line safety rules. See id. at *5–7. The Commission reasoned TNT did
not provide “sufficient evidence” regarding the frequency of its audits to
find them sufficient for monitoring employee compliance with safety rules.
Id. at *7. For instance, while TNT proffered evidence that audits occurred,
TNT management could not identify how often audits occurred. Moreover,
TNT did not provide evidence that it used the audit program to monitor
compliance with its power line safety rules at remote worksites like the
Georgetown worksite. 7 See
id.
Finally, substantial evidence supports the Commission’s determination that TNT did not prove it effectively enforced its power line safety rules
when it discovered violations. See id. at *8. TNT claims it disciplines employees pursuant to its disciplinary policy. Undermining that assertion,
though, TNT provided no evidence “that it ever previously disciplined an
employee for violating its power line safety rules.”
Id. Considering TNT is
If necessary a spotter will be designated to monitor the approach distance
and alert Operator if that distance becomes compromised.
7
The Commission has previously found monitoring insufficient where no evidence
showed that the employer monitored employee compliance with the rules pertaining to the
specific conduct at issue in the citation during site visits. Sec’y of Lab. v. Sw. Bell Tel. Co.,
19 OSHC (BNA) 1097,
2000 WL 1424806, at *3 (No. 98-1748, 2000), aff’d, Sw. Bell Tel.
Co. v. Chao,
277 F.3d 1374 (5th Cir. 2001).
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No. 22-60399
a large employer, the Commission found it unreasonable to assume that no
violations of power line safety rules ever occurred prior to the cited violations. Id. Indeed, in Angel Bros., we determined that effective enforcement
was not established where a large employer performed many excavations but
had “only documented two instances of disciplining employees for rules violations,” both of which “came after OSHA inspectors uncovered the violations.”
18 F.4th at 833. Additionally, as the Commission here identified,
Benson’s participation in the violative conduct is strong evidence that
TNT’s enforcement of power line safety rules was lax. See TNT Crane,
2022
WL 2102910, at *8 (citing cases, e.g., Floyd, 576 F.2d at 77).
We uphold the Commission’s determination that TNT failed to establish the defense. The petition for review is DENIED.
18
