Eller-Ito Stevedoring Company, LLC v. Secretary of Labor , 567 F. App'x 801 ( 2014 )

Case: 13-12006 Date Filed: 05/28/2014 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12006
________________________
Agency No. OSHC-0 : 11-3010
ELLER-ITO STEVEDORING COMPANY, LLC,
Petitioner,
versus
SECRETARY OF LABOR,
Respondent.
________________________
Petition for Review of a Decision of the
Occupational Safety and Health Review Commission
_________________________
(May 28, 2014)
Before HULL, BLACK and FARRIS, * Circuit Judges.
PER CURIAM:
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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Eller-ITO Stevedoring Company, LLC petitions for review of the
Occupational Safety and Health Review Commission’s (OSHRC) order stating the
case was not directed for review, and directing that the decision of the
Administrative Law Judge (ALJ) become the final order of the OSHRC. Eller-ITO
contends the ALJ made both legal and factual errors in affirming a citation and
penalty assessed by the Occupational Safety and Health Administration (OSHA)
for a workplace accident resulting in the death of Oscar Hyman on May 4, 2011.
After a review of the record and the parties’ briefs, and having had the benefit of
oral argument, we deny the petition.
To make a prima facie showing that an employer violated an OSHA
standard, the Secretary must show the following four elements: “(1) that the
regulation applied; (2) that it was violated; (3) that an employee was exposed to the
hazard that was created; and importantly, (4) that the employer ‘knowingly
disregarded’ the [Occupational Safety and Health] Act’s requirements.” ComTran
Grp., Inc. v. U.S. Dep’t of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013). If the
Secretary establishes a prima facie case with respect to all four elements, the
employer may then come forward and assert the affirmative defense of
unpreventable or unforeseeable employee misconduct. Id. at 1308. Eller-ITO
contends the Secretary failed to meet his burden on elements one and four of the
prima facie case, and that it met its burden for the affirmative defense.
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I. Whether the Regulation Applied
Eller-ITO contends the ALJ erred in determining the standard in 29 C.F.R.
§ 1918.86(n) applies generally to cargo discharged from a vessel and is not
expressly limited to “vehicle stowage positioning.” In full, the regulation provides:
Vehicle stowage positioning. Drivers shall not drive vehicles, either
forward or backward, while any personnel are in positions where they
could be struck.
29 C.F.R. § 1918.86(n).
The ALJ’s interpretation of 29 C.F.R. § 1918.86(n) as applying to both roll-
on and roll-off longshoring operations is not arbitrary, capricious, or an abuse of
discretion. See Fluor Daniel v. OSHRC, 295 F.3d 1232, 1236 (11th Cir. 2002).
Titles and headings are not a part of the law itself, and it is well-established that
they “cannot limit the plain meaning of the text.” Bhd. of R.R. Trainmen v.
Baltimore & O.R. Co., 331 U.S. 519, 528-29 (1947). Further, the Secretary’s
interpretation of the regulation is reasonable and is therefore entitled to deference.
See Fluor Daniel, 295 F.3d at 1236. Thus, the Secretary met the first element of
its prima facie case, showing that 29 C.F.R. § 1918.86(n) applied to the conduct at
issue.
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II. Whether Eller-ITO Knowingly Disregarded the Act’s Requirements
Eller-ITO asserts the Secretary failed to show that it “knowingly
disregarded” the requirements of § 1918.86(n). Specifically, Eller-ITO contends
the record evidence is insufficient to support a finding that it knew, or with the
exercise of reasonable diligence, could have known, of the violative condition
created by Hyman.
The knowledge element of the prima facie case can be shown in one of two
ways. ComTran, 722 F.3d at 1307. “First, where the Secretary shows that a
supervisor had either actual or constructive knowledge of the violation, such
knowledge is generally imputed to the employer.” Id. at 1307-08. “In the
alternative, the Secretary can show knowledge based upon the employer’s failure
to implement an adequate safety program, with the rationale being that—in the
absence of such a program—the misconduct was reasonably foreseeable.” Id. at
1308 (citation omitted). An employer’s safety program may be deemed inadequate
if it is not adequately communicated to employees. PSP Monotech Indus., 22
BNA OSHC 1303, 1306 (No. 06-1201, 2008); see also Daniel Int’l Corp. v.
OSHRC, 683 F.2d 361, 364 (11th Cir. 1982) (“[W]e have little doubt that Daniel
has a work rule requiring employees to tie off . . . which is communicated
effectively to all of its employees.” (emphasis added)); H.B. Zachry Co. v. OSHRC,
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638 F.2d 812, 820 (5th Cir. Unit A Mar. 1981)1 (finding, in the context of
establishing a defense of negligent employee misconduct, substantial evidence in
the record supported a finding that a company failed to communicate and enforce
its work rules needed to comply with OSHA standards).
After reviewing the record, and applying the “considerable deference”
afforded to OSHRC decisions, we conclude substantial evidence supports the
ALJ’s finding that Eller-ITO knowingly disregarded the Act’s requirements. See
29 U.S.C. § 660(a); Fluor Daniel, 295 F.3d at 1236 (explaining “[s]ubstantial
evidence is more than a scintilla, and is such relevant evidence as a reasonable
person would accept as adequate to support a conclusion”). Accordingly, the
Secretary established all four elements of his prima facie case that Eller-ITO
violated 29 C.F.R. § 1918.86(n). See ComTran, 722 F.3d at 1307.
III. Preventable Employee Misconduct
Finally, Eller-ITO contends the ALJ erred in determining it had not met its
burden of proving the affirmative defense of preventable employee misconduct.
“This defense requires the employer to show that it: (1) created a work rule to
prevent the violation at issue; (2) adequately communicated that rule to its
employees; (3) took all reasonable steps to discover noncompliance; and
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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(4) enforced the rule against employees when violations were discovered.” Id.
Substantial evidence supports the ALJ’s finding that Eller-ITO could not prove this
defense. See Fluor Daniel, 295 F.3d at 1236.
Thus, we deny Eller-ITO’s petition for review.
PETITION DENIED.
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