Empire Roofing Company Southeast, LLC v. Occupational Safety and Health Review Commissioner

Case: 16-17309 Date Filed: 10/19/2017 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-17309
Non-Argument Calendar
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Agency No. 13-1034

EMPIRE ROOFING COMPANY SOUTHEAST, LLC,

Petitioner,

Versus

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,
SECRETARY, U.S. DEPARTMENT OF LABOR,

Respondents.
________________________

Petition for Review of a Decision of the
Occupational Safety and Health Review Commission
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(October 19, 2017)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

Empire Roofing Company Southeast, LLC (“Empire”), petitions for review

of a final decision of the Occupational Safety and Health Review Commission
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(“Commission”). The Commission concluded that Empire violated standards

under the Occupational Safety and Health Act (“OSHA”), 29 U.S.C. §§ 651 et

seq., when Empire employees rode in an aerial lift without fall protection, in

violation of 29 C.F.R. § 1926.453(b)(2)(v). Empire challenges the Commission’s

conclusion that the language “when working from an aerial lift” in

§ 1926.453(b)(2)(v) includes riding in an aerial lift. It also challenges the

Commission’s conclusion that a foreman’s knowledge of a violation by two

subordinate employees was imputed to Empire, even where the foreman created

the violation. After careful review, we deny the petition and affirm the

Commission’s decision.

The relevant, undisputed facts are these. In April 2013, an OSHA

compliance officer inspected a worksite where Empire was installing metal

sheeting on the roof of a commercial building. The officer saw Empire’s foreman

standing in the basket of an aerial lift, elevated between 16 and 20 feet from the

ground, without being tied off to the boom or basket. Two other Empire

employees were on the roof of the building. The officer learned that the foreman

had previously used the lift to transport the two Empire employees up to the roof,

but neither the foreman nor the employees used the available safety harnesses

during transport in the lift. According to a written statement prepared by the

officer and reviewed and signed by the foreman, the foreman said that he “did not

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have a harness on because he was in a hurry and that he was not going to use the

aerial lift very long and he said it was his fault.” After a hearing in which Empire

contested the citation it had received for the violation, an administrative law judge

(“ALJ”) agreed with the Secretary’s position that an employee is “working from an

aerial lift” when he is using the lift as a means of transportation on the worksite,

and the Commission affirmed the ALJ’s ruling.

Commission decisions “are entitled to considerable deference on appellate

review.” Fluor Daniel v. Occupational Safety & Health Review Comm’n, 295

F.3d 1232, 1236 (11th Cir. 2002). The Commission’s legal determinations will be

overturned only if they are “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This is a “highly

deferential standard” of review. Fluor Daniel, 295 F.3d at 1236. In order to make

out a prima facie case of the violation of an OSHA standard, the Secretary must

show “(1) that the regulation applied; (2) that it was violated; (3) that an employee

was exposed to the hazard that was created; and . . . (4) that the employer

knowingly disregarded the Act’s requirements.” ComTran Grp., Inc. v. U.S. Dep’t

of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013) (quotation and citation omitted).

Empire challenges the Commission’s legal determinations regarding the first and

fourth requirements.

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First, we are unpersuaded by Empire’s claim that the Commission’s decision

that the phrase, “when working from an aerial lift,” found in § 1926.453(b)(2)(v),

includes riding in an aerial lift was arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law. In determining the meaning of a statute

or regulation, “the first step is to determine whether the statutory language has a

plain and unambiguous meaning by referring to the language itself, the specific

context in which that language is used, and the broader context of the statute as a

whole.” Bautista v. Star Cruises, 396 F.3d 1289, 1295 (11th Cir. 2005) (quotation

omitted). “If the statute’s meaning is plain and unambiguous, there is no need for

further inquiry.” CBS Broad. Inc. v. Echostar Commc’ns Corp., 532 F.3d 1294,

1300–01 (11th Cir. 2008) (quotations omitted). Where the meaning of the

regulatory language is “not free from doubt,” however, the reviewing court should

give effect to the agency’s interpretation so long as it is reasonable, meaning that it

“sensibly conforms to the purpose and wording of the regulations.” Martin v.

OSHRC, 499 U.S. 144, 149-51 (1991) (quotations omitted). “[A]n agency’s

construction of its own regulations is entitled to substantial deference.” Id. at 150

(quoting Lyng v. Payne, 476 U.S. 926, 939 (1986)); Brock v. Williams Enters. of

Ga., Inc., 832 F.2d 567, 569–70 (11th Cir. 1987). Id. at 149–51 (quotations

omitted). 1

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Our review is of the Commission’s decision, but our primary deference is not to the
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The regulation at issue provides that “[a] body belt shall be worn and a

lanyard attached to the boom or basket when working from an aerial lift.” 29

C.F.R. § 1926.453(b)(2)(v). Empire argues that the phrase “when working from”

is plain and unambiguous, so the only needed inquiry is the plain meaning of the

regulation. We disagree. Empire cites no statutory, regulatory, common law, or

dictionary definition of the terms “work” or “working,” or the phrase “when

working from” to demonstrate that the regulation’s meaning is plain and

unambiguous. Empire also offers that use of the phrase “when working from”

elsewhere in § 1926.453 requires a definition that does not include transport. In

particular, Empire notes that § 1926.453(b)(2)(iii) prohibits “[b]elting off to an

adjacent pole, structure, or equipment while working from an aerial lift,” and it

contends that no worker would belt off while simply riding in the lift. However,

§ 1926.453(b)(2)(iii) prohibits, and does not require, belting off while working

from an aerial lift. Even if no worker would belt off while merely riding in the lift,

a prohibition against belting off while performing any work-related activities,

including transport, from an aerial lift would not create an absurd result. This

Commission’s interpretation of the law. Rather, we must accept as controlling the Secretary’s
reasonable interpretations of OSHA regulations even if they conflict with the Commission’s
reading. Martin, 499 U.S. at 156, 158 (“Giving the Commission the power to substitute its
reasonable interpretations for the Secretary’s . . . would . . . clearly frustrate Congress’ intent to
make a single administrative actor accountable for the overall implementation of the Act's policy
objectives . . . .”) (internal quotation marks omitted). Here, however, the Secretary and the
Commission reached the same conclusion, so we need not parse between the two.
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provision does not demonstrate that the meaning of “when working from” clearly

and unambiguously excludes riding in an aerial lift.

Because the meaning of the phrase “when working from” is “not free from

doubt,” we examine the agency’s interpretation to determine whether it conforms

to the purpose and wording of the regulations. Martin, 499 U.S. at 149–52. For

starters, the agency’s interpretation that the phrase “when working from an aerial

lift” includes transport in an aerial lift conforms to the purpose of OSHA and §

1926.453(b)(2)(v). Id. at 149–52. Indeed, it is undisputed that requiring the use of

a belt and lanyard while riding in an aerial lift reduces the risk of falling from the

lift during transport. Because the overall purpose of OSHA is “‘to assure so far as

possible . . . safe and healthful working conditions’ for ‘every working man and

woman in the Nation,’” the Secretary’s interpretation undoubtedly conforms to its

purpose. Ga. Pac. Corp. v. Occupational Safety & Health Review Comm’n, 25

F.3d 999, 1004 (11th Cir. 1994) (quoting 29 U.S.C. § 651(b)). It further conforms

to the purpose of § 1926.453(b)(2)(v), which is to protect employees from the

hazard of falling from an aerial lift. See Salah & Pecci Constr. Co., 6 BNA OSHC

1688 (No. 15769, 1978).

The agency’s interpretation that an employee is “working from an aerial

lift,” 29 C.F.R. § 1926.453(b)(2)(v), when he is using the lift to perform a work-

related activity -- gaining access to a work location -- also sensibly conforms to the

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wording of the regulation. Martin, 499 U.S. at 149–51. Again, Empire cites no

statutory, regulatory, common law, or dictionary definition of the terms “work” or

“working,” or the phrase “when working from” to suggest that “working from an

aerial lift” would not include gaining access to a work location. Instead, “[i]t is

well established that employees are considered to be working any time they are

performing work or work-related activities. Moving from one work location to

another is considered a work-related activity.” U.S. Dep’t of Labor, Occupational

Safety & Health Admin., Change in Policy Regarding Fall Protection While Riding

in an Aerial Lift, Standard Interpretation Letter (Jan. 6, 2000). We cannot say that

the language of the regulation precludes this result, nor can we can we say that the

agency’s interpretation of the regulation was unreasonable.

Because the agency’s interpretation of the regulation was reasonable, we

must give that interpretation effect. Martin, 499 U.S. at 149–51. Accordingly, the

Commission’s decision, consistent with the Secretary’s reasonable interpretation,

was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law. 5 U.S.C. § 706(2)(A).

We also are unconvinced by Empire’s argument that the Commission’s

conclusion that the foreman’s knowledge of his subordinates’ violation was

imputed to Empire was arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law. “When a corporate employer entrusts to a supervisory

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employee its duty to assure employee compliance with safety standards, it is

reasonable to charge the employer with the supervisor’s knowledge actual or

constructive of noncomplying conduct of a subordinate.” ComTran, 722 F.3d at

1317 (citation omitted).

“The classic situation in which knowledge of a supervisor is imputed to an

employer is when the supervisor is on the scene looking on, sees the subordinate

employee violating a safety rule, knows there is such a violation, but nonetheless

allows it to continue.” Quinlan v. Sec’y, U.S. Dep’t of Labor, 812 F.3d 832, 841

(11th Cir. 2016). Thus, in the “ordinary case” -- in which the Secretary proves that

a supervisor had actual or constructive knowledge of a subordinate employee’s

violation -- the general rule is that the knowledge of the supervisor is imputed to

the employer. ComTran, 722 F.3d at 1307–08 & n.2.

However, the “ordinary case” is distinct from one where the supervisor is the

“actual malfeasant” who violates the regulation. Id. at 1308 n.2. As we held in

ComTran, where the supervisor himself is the one who engaged in the conduct that

violated the regulation, the “supervisor’s ‘rogue conduct’ cannot be imputed to the

employer . . . .” Id. at 1316. Here, the foreman did not use a belt and lanyard while

riding in the aerial lift. Accordingly, as the Commission determined, the Secretary

could not impute the foreman’s knowledge of his own misconduct to Empire.

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Rather, the Commission concluded that the foreman’s knowledge of his two

subordinates’ misconduct was imputed to Empire. This conclusion is consistent

with our case law. In Quinlan, we held that when the exposed employees include

not only the supervisor, but also one or more subordinate employees, “the general

rule should apply in this case -- i.e., that the knowledge of a supervisor of a

subordinate employee’s violation should be imputed to the employer.” Quinlan,

812 F.3d at 841. Empire argues that the instant case is distinguishable from

Quinlan because the supervisor and subordinate in Quinlan engaged in the same

conduct, but the foreman in this case facilitated the violation by his subordinates.

Empire notes that the foreman operated the aerial lift and the subordinates could

not have ridden in the lift without the foreman’s actions. But although the foreman

operated the lift, his subordinates did not violate § 1926.453(b)(2)(v) by merely

riding in it. Rather, the violation occurred when the subordinates failed to use fall

equipment during the ride. There is no indication in the record that the foreman

caused his subordinates’ failure to use belts and lanyards. It is undisputed that the

foreman was aware that his subordinates did not wear the proper equipment.

Just as in Quinlan, we see “little difference in principle between that classic

situation in which knowledge is imputed and the instant situation involving [a]

supervisor . . . and subordinate[s] . . . . In both cases, the supervisor sees the

violation by the subordinate[s], knows there is a violation, but disregards the safety

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rule for one reason or another.” Id. Thus, in light of the considerable deference

afforded Commission decisions, we conclude that it was not arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law for the

Commission to find that the foreman’s knowledge was imputed to Empire in this

case. Fluor Daniel, 295 F.3d at 1236.

Accordingly, we deny the petition and affirm the Commission’s decision.

AFFIRMED.

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