MICA Corporation v. OSHC , 295 F.3d 447 ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No.01-60743
Summary Calendar
MICA CORPORATION,
Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; ELAINE CHAO,
SECRETARY, DEPARTMENT OF LABOR,
Respondents,
--------------------
Petition for Review of an Order of the
Occupational Safety and Health Review Commission
--------------------
May 22, 2002
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:
Petitioner MICA Corporation (“MICA”) appeals from the
Occupational Safety and Health Review Commission (“OSHRC”)’s Notice
of Final Order, in which the OSHRC declined to review a Decision
and Order of an Administrative Law Judge (“ALJ”). The ALJ’s
Decision and Order sustained two citations against MICA for alleged
violations of the Occupational Safety and Health Act, 29 U.S.C. §§
651-78. Finding that substantial evidence supports the ALJ’s
order, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1
MICA engages in highway-related work, including the placement
and removal of concrete traffic barriers (“CTBs”) used on highway
construction projects. To remove a CTB, MICA uses a hydraulic
crane mounted on a truck; the crane lifts a CTB and transfers it to
another truck. A group of rotating trucks transports the barriers
to a storage area.
While MICA ordinarily uses its own cranes and crane operators,
on April 4, 2000, MICA leased a crane and a crane operator, Michael
Grisham (“Grisham”), from RCT Leasing, Inc. (“RCT”) for a CTB
removal project. James Blalock (“Blalock”), MICA’s foreman on the
site, assigned the crew members their duties and drove one of the
trucks that MICA used to transport the CTBs to its stockpile, 15-30
minutes away. Blalock assigned Jason Owens, a MICA employee, to
drive the truck on which the crane was mounted. A fourth crew
member, Stewart Kugler (“Kugler”), marked the centers of the CTBs
and set clamps on the top of the CTBs that were to be moved by the
crane onto the trailer trucks.
Owens testified that in CTB removal operations all that the
crane truck driver can see in his side view mirror is the ground,
the CTB, the outriggers and the side of the crane, and that in
other CTB removal projects on which he had worked, the crane truck
driver was directed by hand signals from a ground man. In those
operations, a second ground man was charged with handling the CTB,
placing clamps on it, and guiding the CTB to the waiting truck. On
this occasion, only one ground man was assigned to the crew, as
2
MICA appears to have been shorthanded. Blalock had told Kugler to
assist the crane operator and crane truck driver, and Kugler
understood his job to include acting as a “spotter” watching out
for electrical power lines and other potential hazards. However,
Grisham rejected Kugler’s assistance. Kugler then focused solely
on the other ground person functions of handling the CTBs and
guiding them onto the trucks.
Owens relied solely on Grisham to direct him when he was
backing up the truck. They agreed upon a system for coordination
between the two: when Grisham had completed a lift, he would leave
the back outriggers out and pick up the jacks. Once the jacks were
up, Owens was to take over control of the accelerator and back up
to the center of the next CTB. When Owens saw that the outrigger
and the CTB were lined up, or upon Grisham’s signal (honking the
horn), Owens would stop, put the engine in neutral, turn on the
parking brake, and turn accelerator control over to Grisham.
On the morning of April 4, after the crew had finished placing
a load of CTB on Blalock’s truck, an accident occurred. Owens
began to back up the crane carrier and, on Grisham’s signal,
stopped. At that point, Kugler, who was in the process of marking
a CTB, heard a noise behind him, looked up, and saw that the crane
cable had contacted a power line and was sparking.1 Grisham got
1
It is not clear from the record whether the crane contacted the power
cable as a direct result of Grisham’s operation of the crane, or of Owens’
backing up of the crane truck.
3
out of the operator’s cab and began walking around the back of the
crane towards Owens, when he fell to the ground due to a surge of
electricity. Blalock walked over and grabbed Grisham’s leg, but he
was knocked unconscious by a second surge of electricity. Owens
was also thrown to the ground by the surge, and when it stopped he
ran away. Blalock and Grisham died from their injuries. Kugler
was burned, and Owens was taken to the hospital.
Citations were initially issued against both RCT and MICA for
operating the crane too close to the power line and for failing to
designate an observer. The Secretary later dismissed the citations
against RCT and proceeded solely against MICA. After a hearing,
the ALJ affirmed two citations against MICA, combining them for
purposes of assessing a single penalty of $3,500.00. Upon a
petition for review by MICA, the OSHRC declined to review the ALJ’s
decision. MICA appeals.
DISCUSSION
“We are bound by the OSHRC's findings on questions of fact and
reasonable inferences drawn from them if they are supported by
substantial evidence on the record considered as a whole even if
this court could justifiably reach a different result de novo. . .
. The OSHRC's legal conclusions are reviewed as to whether they
are arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law. . . . We review the Secretary's
interpretation of an OSHA regulation to assure that it is
consistent with the regulatory language and is otherwise
4
reasonable.” Trinity Marine Nashville, Inc. v. OSHRC, 275 F.3d 423,
426-27 (5th Cir. 2001).
MICA was cited for alleged violations of two OSHA standards.
The first, 29 C.F.R. §1926.550(a)(15)(i)1 (the “clearance”
standard), requires that a 10 foot clearance be maintained between
any part of the crane or load and the lines. The second, 29 C.F.R.
§ 1926.550(a)(15)(iv) (the “designation” standard), provides that
“[a] person shall be designated to observe clearance of the
equipment and give timely warning for all operations where it is
difficult for the operator to maintain the desired clearance by
visual means.”
We find that substantial evidence supports the Commission’s
acceptance of the ALJ’s conclusions that MICA violated both
standards.
MICA argues that substantial evidence does not support the
finding that MICA was subject to, or violated, the clearance
standard, because Grisham (an RCT employee), not MICA, was in
control of the clearance. However, the crane operated by Grisham
and the truck driven by Owens functioned as a single piece of
1
This section provides:
“Except where electrical distribution and transmission lines have been
deenergized and visibly grounded at point of work or where insulating
barriers, not part of or an attachment to the equipment or machinery, have
been erected to prevent physical contact with the lines, equipment or machines
shall be operated proximate to power lines only in accordance with the
following:
...
(i) For lines rated 50kV or below, minimum clearance between the lines
and any part of the crane or load shall be 10 feet.”
5
equipment and the clearance standard applied to the operation of
both. While it may not be clear which piece of the equipment was
the last to move before the power line was contacted, the fact that
any part of the combined equipment was within the 10 foot clearance
zone is a result of the joint operation of the two pieces of
equipment. In addition, the ALJ correctly noted that MICA could
have abated the hazard, as the operation was being performed at its
worksite, and its employees had expertise that would have allowed
them to identify and abate the hazard. Moreover, the fact that
Grisham refused an observer does not mean that, had a spotter been
specifically designated, Grisham would have ignored his warnings.
Thus, substantial evidence supports the ALJ’s finding that MICA had
sufficient control over the clearance so as to be held liable for
the clearance violation.
MICA also argues that the designation standard did not require
the designation of an observer, because the crane operator,
Grisham, had an unobstructed view in all directions. But this fact
is irrelevant; Owens, the operator of the truck, had no view of
overhead hazards behind the truck, so an observer was required to
be designated to assist Owens.
In the alternative, MICA asserts that substantial evidence
does not support the finding that MICA violated the designation
standard, as it claims that Kugler was designated as an observer.
The OSHRC has previously stated that the designation standard
requires that “affirmative action... be taken by the employer.”
6
Secretary of Labor v. Halmar Corp., 18 O.S.H. Cas. (BNA) 1014 (Rev.
Comm’n. 1997) (citing Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d
1340 (2d Cir. 1974) (holding that 'designate' requires specific and
positive action by employer to inform an employee of the existence
and nature of his duties)). And the Secretary interpreted the
regulation as requiring that, at the very least, the designated
employee must be made to appreciate that his or her watch-and-warn
duties persist for the duration of the exposure to the hazards
associated with operating a crane where it may encounter power
lines. Because this interpretation of the standard is consistent
with the regulatory language and reasonable, we defer to it. See
Martin v. OSHRC, 499 U.S. 144, 154-56 (1991); United Steelworkers
of America v. Schuylkill Metals Corp., 828 F.2d 314, 319 (5th Cir.
1987). In this case, the record shows only that Blalock gave a
vague direction to Kugler to help Grisham, and did not inform
Kugler of his duty to ensure that the clearance be maintained
throughout the duration of the operation. Thus, substantial
evidence supports the finding of a violation of the designation
standard.
Finally, MICA argues that substantial evidence does not
support the finding that MICA knew or should have known of the
violative conditions. Trinity Indus., Inc. v. OSHRC, 206 F.3d 539,
542 (5th Cir. 2000) (“[T]he Secretary must show that the employer
knew of, or with exercise of reasonable diligence could have known
7
of the non-complying condition.”). Because MICA regularly worked
on CTB removal, MICA was well aware of the common danger of
overhead power lines, and of the fact that Owens’ view would be
restricted. Thus, MICA knew or should have known that a spotter
would be required. Given his vague instructions to Kugler, his
status as a supervisor, and the composition of the crew (with only
one groundperson, rather than two), Blalock should have checked to
ensure that the removal operation was being conducted with proper
safeguards. And had he checked, Blalock could have known of the
lack of a spotter. Thus, substantial evidence supports the finding
that MICA had knowledge of the non-complying conditions.
CONCLUSION
Because substantial evidence supports the ALJ’s findings,
affirmed by the OSHRC, we AFFIRM the OSHRC’s decision.
8