All Erection & Crane Rental Corp. v. Occupational Safety & Health Review Commission

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1247n.06

No. 11-4242 FILED

UNITED STATES COURT OF APPEALS Dec 05, 2012
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk

ALL ERECTION & CRANE RENTAL CORP., )
) ON PETITION FOR REVIEW
Petitioner, ) OF A FINAL ORDER OF THE
) OCCUPATIONAL SAFETY &
v. ) HEALTH REVIEW
) COMMISSION
OCCUPATIONAL SAFETY AND HEALTH )
REVIEW COMMISSION, ) OPINION
)
HILDA L. SOLIS, U.S. SECRETARY OF )
LABOR, )
)
Respondent. )
)

BEFORE: McKEAGUE, GRIFFIN, Circuit Judges, and DLOTT, Chief District Judge.*

McKeague, Circuit Judge. This case arises out of a company’s failure to comply with

federal crane safety standards designed to ensure the safety and well-being of employees who work

within close proximity of an operating crane. All Erection & Crane Rental Corp. (“All Crane”)

petitions for review of a final order of the Occupational Safety and Health Review Commission (the

“Commission”) finding a violation of 29 C.F.R. § 1926.550(a)(9), which requires that the swing

radius of the rear of a crane’s rotating superstructure be barricaded. Because we conclude that

*
The Honorable Susan J. Dlott, Chief United States District Judge for the Southern District
of Ohio, sitting by designation.
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substantial evidence supports the Administrative Law Judge’s (“ALJ”) decision, and it is not

arbitrary or capricious, we DENY the petition.

I. BACKGROUND

All Crane is an Ohio corporation that sells and rents cranes and provides crane-related

services to other companies. In September 2010, All Crane supplied a crane and two employees to

a general contractor that was building a bridge in Brookpark, Ohio. On September 18, 2010, the

bridge collapsed for reasons unrelated to the crane or its operation; consequently, personnel from the

Occupational Safety and Health Administration (“OSHA”) began investigating the construction site

and the various companies involved in the project. While at the worksite, an OSHA compliance

officer named Joko Vermillion noticed that the swing radius of the rear of the crane’s superstructure

was not barricaded, which constituted a violation of 29 C.F.R. § 1926.550(a)(9).1

On September 20, 2010, Vermillion spoke with Mike Garity, All Crane’s sales

representative. Garity identified Dean Feiler (“Feiler”), the crane’s operator, and Dean Feiler, Jr.,

the crane’s oiler, as All Crane employees who were working at the site. Vermillion subsequently

requested to interview the two employees, which resulted in a meeting with Feiler. During the

meeting, Feiler told Vermillion that he had barricaded a portion of the crane’s swing radius by

leaning two wooden pallets together. Because this structure does not qualify as a proper barricade,

1
29 C.F.R. § 1926.550(a)(9) provides that “[a]ccessible areas within the swing radius of the
rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be
barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.”

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on February 17, 2011, Vermillion issued All Crane a citation for failing to properly barricade the

crane’s swing radius.

All Crane contested the citation, and a hearing was held before an ALJ on June 3, 2011.

Vermillion, Feiler, and All Crane’s safety director, Kirk Ward, testified. On August 4, 2011, the

ALJ issued a decision affirming the citation. See All Erection & Crane Rental Corp., 23 BNA

OSHC 1923 (No. 11-0745, 2011). The ALJ began her analysis by addressing All Crane’s challenge

to Vermillion’s credibility. Id. at *3. All Crane asserted that Vermillion was not a credible witness

because he testified that the accident had occurred on September 17, 2010, rather than September

18, and because he mistakenly testified to taking some photographs introduced as evidence. Id. The

ALJ stated that “[this] does not suggest that he is not credible, especially since he was testifying from

memory and only used his investigation file to refresh his recollection.” Id. Additionally, she found

Vermillion to be “composed, sincere, and believable” and these discrepancies to be insignificant.

Id.

After finding Vermillion credible, the ALJ addressed the alleged violation of 29 C.F.R

§ 1926.550(a)(9). She found that the first element necessary for imposing liability—whether the

standard applies—was fulfilled, for the regulation specifically addressed cranes. Id. at *4.

Regarding the second element—whether the standard’s terms were met—the ALJ held that “[t]he

record shows the crane’s swing radius was not barricaded as required.” Id. She cited Feiler’s

testimony, in which he admitted that he did not properly barricade the swing radius, and All Crane’s

brief, which, according to the ALJ, essentially conceded this point. Id.

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The third element—whether employees were exposed to the cited condition—was also met.

Id. In finding employee exposure, the ALJ cited Commission decisions for the proposition that this

element is met if “it is reasonably predictable by operational necessity or otherwise, including

inadvertence, that employees have been, are, or will be in the zone of danger.” Id. (quotation

omitted). Based on the testimony of Vermillion and Feiler, she found that the crane’s oiler was

within the crane’s swing radius during its operation. Id. She also found that other employees were

within the zone of danger because “employees walked behind and around the crane, in proximity to

the rotating counterweight . . . . There was nothing to prevent the employees from accessing the area

of the crane’s swing radius.” Id.

The fourth and final element—whether the employer had knowledge of the violation—was

satisfied through Feiler’s knowledge of the violation. Id. at *5. The ALJ cited Vermillion’s

testimony that Feiler identified himself as the foreman of the project and that he was in charge of the

crane, the oiler, and the oiler’s safety. Id. She noted that Feiler testified that he did not identify

himself as a member of management or as a foreman. Id. However, she held that his control of the

crane’s operation and responsibility for the oiler, not his official position within the company, was

dispositive. Id. In support, she cited Tampa Shipyards, Inc., 15 BNA OSHC 1533 (Nos. 86-360,

86-469, 1992), for the proposition that “[a]n employee who has been delegated authority over

another employee, even if only temporarily, is considered to be a supervisor for purposes of imputing

knowledge to an employer.” Id.

After holding that a prima facie violation had been established, the ALJ addressed All

Crane’s affirmative defense of unpreventable employee misconduct. Id. at *6. Though she found

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that All Crane did have established work rules pertaining to crane barricading, she also found that

All Crane did not effectively communicate these rules. Id. at *6-7. Therefore, she affirmed the

citation, although she reduced the penalty from $4,500 to $2,500. Id. at *7. On September 15, 2011,

the Review Commission declined to review the ALJ’s decision, thus adopting the ALJ’s decision

as its final order.

II. ANALYSIS

A. Standard of Review

Our review of a Commission decision is limited. “The ALJ’s determination may be set aside

if arbitrary, capricious, an abuse of discretion, or contrary to law.” R.P. Carbone Constr. Co. v.

Occupational Safety & Health Review Comm’n, 166 F.3d 815, 818 (6th Cir. 1998). We must accept

as conclusive the ALJ’s factual findings if “supported by substantial evidence on the record

considered as a whole.” Id. “Substantial evidence is more than a scintilla, but less than a

preponderance, of the evidence.” Id.

B. Violation

To establish a prima facie violation of an OSHA standard, the Secretary of Labor must show

by a preponderance of the evidence that “(1) the standard applies to the cited conditions, (2) the

requirements of the standard were not met, (3) employees had access to the hazardous condition, and

(4) the employer knew or should have known of the hazardous condition with the exercise of

reasonable diligence.” R.P. Carbone Constr. Co., 166 F.3d at 818. All Crane does not dispute that

the first two elements were shown. It argues only that employees did not have access to a hazardous

condition and that it did not know of the condition’s existence.

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1. Access to the Hazardous Condition

Although All Crane admits that there is no question that Feiler failed to comply with 29

C.F.R. § 1926.550(a)(9) because he only partially barricaded the crane’s swing radius, it contends

that the ALJ erred in finding that employees were exposed to a hazard. All Crane bases this

argument on the alleged fact that only the right rear of the crane exposed employees to a hazard and

that this area was blocked with pallets. All Crane asserts that because there were high voltage wires

on the right side of the crane, the crane could not pivot to the right without striking the wires.

Additionally, All Crane states that there was no reason for the crane to pivot to the right, because the

only work that was performed was on the left side of the crane. Thus, because the crane was only

pivoting left, the only existent hazard was on the right-rear side of the crane. All Crane further

argues that Feiler denied that the oiler entered the swing radius during the crane’s operation.

But the thrust of All Crane’s argument is misdirected. The Secretary need only prove that

employees had access to the violative condition. The Secretary need not prove that employees were

actually exposed to the condition, but only that it was reasonably predictable that employees would

be within the zone of danger. See Mark A. Rothstein, Occupational Safety and Health Law § 5:13

(2011 ed.). Furthermore, the Secretary need not prove that the violative condition was actually

hazardous, since under a standard such as this the existence of a hazard is presumed. See Mayflower

Vehicle Sys., Inc. v. Chao, 68 F. App’x 688, 692 (6th Cir. 2003); Bunge Corp. v. Sec’y of Labor, 638

F.2d 831, 834 (5th Cir. 1981).

Substantial evidence supports the ALJ’s finding that employees had access to the violative

condition, namely, the unbarricaded swing radius of the crane. The ALJ found that the oiler worked

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within the swing radius of the crane while it operated. All Erection & Crane Rental Corp., 23 BNA

OSHC at *4. This finding is directly supported by Vermillion, who stated, “I asked [Feiler] if the

oiler was working inside the swing radius while the crane was being operated, and he indicated to

me that he had. He was in there to check the crane and at all times he was working all around the

crane.” Petitioner’s App. Vol. I, Hearing Transcript, 38. Although All Crane points out that Feiler

contradicted this testimony, the ALJ addressed this discrepancy and reasonably rejected Feiler’s

testimony on this point. All Erection & Crane Rental Corp., 23 BNA OSHC at *4.

Additionally, it was reasonably predictable that other employees could have accessed the

violative condition. The ALJ found that “[i]n order to enter the job site, employees walked behind

and around the crane, in proximity to the rotating counterweight . . . . There was nothing to prevent

the employees from accessing the area of the crane’s swing radius. . . . [O]ther employees had access

to the un-barricaded area of the crane’s swing radius.” Id. at *4. The ALJ’s finding that employees

had access to the unbarricaded swing radius is supported by substantial evidence.

2. Knowledge of the Hazardous Condition

All Crane’s argument that it did not have knowledge of the hazardous condition is without

merit. Feiler had actual knowledge of the violation. This Court has held that a supervisor’s

knowledge may be imputed to the employer. Danis-Shook Joint Venture XXV v. Sec’y of Labor, 319

F.3d 805, 812 (6th Cir. 2003). All Crane asserts that Feiler was not an official foreman or manager,

and thus his knowledge of the violation cannot be imputed to All Crane. This assertion ignores the

ALJ’s rationale. The ALJ held that official status is not controlling. Instead, “[t]he fact that Feiler

was in charge of the crane operations on the site, and as he stated, that he was responsible for the

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safety of the oiler on the jobsite, is determinative.” All Erection & Crane Rental Corp., 23 BNA

OSHC at *5.

In holding that Feiler was a supervisor for the purpose of imputing knowledge to All Crane,

the ALJ correctly applied applicable law. See Tampa Shipyards, Inc., 15 BNA OSHC 1533, at *6

(Nos. 86-360, 86-469, 1992) (“An employee who has been delegated authority over other employees,

even if only temporarily, is considered to be a supervisor for the purposes of imputing knowledge

to an employer.”); see also Georgia Elec. Co. v. Marshall, 595 F.2d 309, 321 (5th Cir. 1979)

(indicating that a “boom truck operator” who oversaw a crew erecting light poles “in fact exercised

supervisory authority,” even though his “job title was not that of a superintendent or foreman,” and

therefore his knowledge could be imputed to his employer). Moreover, regardless of Feiler’s

knowledge, the record indicates that All Crane failed to exercise reasonable diligence in monitoring

the safety of its operations. Its safety supervisor, Kirk Ward, admitted that he never visited the

worksite until after the bridge collapsed. Accordingly, All Crane should have known of the violative

condition.

C. Affirmative Defense

All Crane next argues that the ALJ erred in finding that it did not establish the affirmative

defense of unpreventable employee misconduct. “In the Sixth Circuit, in order to successfully assert

this defense, an employer must show that it has a thorough safety program, it has communicated and

fully enforced the program, the conduct of the employee was unforeseeable, and the safety program

was effective in theory and practice.” Danis-Shook Joint Venture XXV v. Sec’y of Labor, 319 F.3d

805, 812 (6th Cir. 2003). The ALJ found that although All Crane had a written safety program that

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was communicated to its employees, it did not effectively communicate this policy. All Erection &

Crane Rental Corp., 23 BNA OSHC at *7. In relevant part, she stated:

[Feiler was] unaware that the oiler was not permitted to work within the swing radius
of the crane while the crane was operating. Feiler’s statement to Vermillion that he
believed there was an exemption for the oiler which permitted the oiler to work
within the swing radius of the crane while the crane was operating, indicates Feiler’s
understanding of crane safety and All Crane’s rules was not as extensive as All Crane
claims . . . . Further, a supervisor’s failure to follow the safety rules and involvement
in the misconduct is strong evidence that the employer’s safety program was lax.

Id.

All Crane argues that this finding was based on a mistake of law. All Crane contends that

29 C.F.R. § 1926.550(a)(9) pertains to barricading the swing radius of the rear of a crane, not to

prohibiting employees from working within the swing radius. Additionally, All Crane argues that

Feiler was correct in his belief that there is an exemption permitting oilers to work within a crane’s

swing radius.

Though the parties devote much effort to disputing whether 29 C.F.R. § 1926.550(a)(9)

recognizes an exception that permits an oiler to enter the swing radius of a crane during its operation,

we need not resolve the dispute.2 We agree with the ALJ that Feiler was effectively a supervisor

since he was given complete control and full responsibility over the crane’s operations without any

oversight. This Court has previously stated that “[i]n cases involving negligent behavior by a

supervisor or foreman which results in dangerous risks to employees under his or her supervision,

2
Shortly after the facts underlying this case transpired, OSHA completely revised its
standards governing cranes and derricks. The new standard that governs barricading the swing
radius is drastically different from the old standard. See 29 C.F.R. § 1926.1424.

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such fact raises an inference of lax enforcement and/or communication of the employer’s safety

policy.” Danis-Shook Joint Venture XXV, 319 F.3d at 811 (citation omitted); see also Brock v. L.E.

Myers Co., High Voltage Div., 818 F.2d 1270, 1277 (6th Cir. 1987).

Here, Feiler blatantly violated OSHA safety standards and All Crane’s own company

policies. See 29 C.F.R. § 1926.550(a)(9); Petitioner’s App. Vol. II, All Crane’s Safety Policy, 26.

This fact supports the ALJ’s finding that All Crane’s work rules were not effectively communicated.

We find further evidence to support the ALJ’s finding in Feiler’s beliefs regarding the

effectiveness of the wooden-pallet barricade. All Crane alleges that “[Feiler] believed in good faith

that he had complied with the rule, because the struck-by hazard only existed on the right side of the

crane.” Petitioner’s Br. 31. Indeed, when asked whether he believed that he effectively barricaded

the crane’s swing radius, Feiler responded affirmatively. This belief is incorrect and contrary to the

plain language of the standard and indicates that All Crane’s work rules were not effectively

communicated.

Furthermore, evidence in the record indicates that Feiler’s misconduct was foreseeable.

Although the ALJ did not reach this element of the employee misconduct defense, we could affirm

on this ground. See Campbell v. BNSF Ry. Co., 600 F.3d 667, 677 (6th Cir. 2010). All Crane

admits that it had employees on site on September 1, 8, 9, 10, 13, 14, 15, and 17. During this period

of over two weeks, no safety inspector from All Crane visited the site. We think that a reasonable

employer would have sent a safety inspector to the site during this time. If All Crane had done so

it would have discovered the violation, which was plainly visible. Therefore, All Crane cannot prove

that Feiler’s misconduct was unforeseeable.

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D. Miscellaneous Issues

All Crane asserts that it was prejudiced by receiving redacted versions of the investigator’s

narrative and worksheet, for these redacted versions gave it the impression that the Secretary was

taking the position that Feiler was neither a member of management nor a supervisor. All Crane also

asserts that it was prejudiced by the ALJ’s refusal to permit All Crane to enter the unredacted

documents into evidence during the hearing.

Regardless of any error, All Crane has not demonstrated prejudice. “[I]f an agency has failed

to adhere to its own procedures, we will not remand for further administrative proceedings unless

the claimant has been prejudiced on the merits or deprived of substantial rights because of the

agency’s procedural lapses.” Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir.

2009) (citations and quotations omitted). Evidently the redacted information totaled around three

lines. During the hearing, the ALJ took a fifteen-minute recess to allow counsel for both parties to

review and discuss the unredacted documents. After this recess, she allowed All Crane’s counsel

to impeach Vermillion with the redacted information. Additionally, All Crane’s counsel did not take

issue with the ALJ’s statement that this procedure eliminated any prejudice to All Crane. Moreover,

All Crane’s counsel acknowledged that Vermillion identified Feiler as a foreman in unredacted

portions of the documents. Regardless of any error, All Crane was not prejudiced.

All Crane’s argument that it was not afforded an opportunity to participate in the inspection

is also without merit. All Crane clearly knew of the OSHA investigation and points to no facts

indicating it was denied an opportunity to participate in the inspection.

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III. CONCLUSION

For these reasons, we DENY the petition for review.

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