Southwestern Bell v. OSHRC ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-60814
_____________________
________________________
SOUTHWESTERN BELL TELEPHONE COMPANY,
Petitioner
v.
________________________
Elaine CHAO, Secretary of Labor,
United States Department of Labor, and
Occupational Safety and Health Review Commission,
Respondents
_________________________________________________________________
Appeal from the Occupational Safety and Health Review Commission
No. 98-1748
_________________________________________________________________
November 15, 2001
Before KING, Chief Judge, and DUHÉ and BENAVIDES, Circuit Judges.
PER CURIAM:*
In this safety regulation violation case, the defendant,
Southwestern Bell Telephone Company, appeals the orders of the
Occupational Safety and Health Review Commission finding three
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
violations of regulations and assessing penalties. For the
following reasons, the orders are AFFIRMED.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1998, the Occupational Safety and Health Administration
(“OSHA”) inspected a Southwestern Bell Telephone Company
(“Southwestern Bell”) excavation work site in Texas, prompting
the Secretary of Labor (“Secretary”) to cite the company for
safety violations pursuant to three OSHA regulations: 29 C.F.R.
§§ 1926.651(k)(1), 1926.652(a)(1), and 1926.1053(b)(1) (1995),1
1
§ 1926.651(k)(1) reads as follows:
(1) Daily inspections of excavations, the adjacent
areas, and protective systems shall be made by a
competent person for evidence of a situation that could
result in possible cave-ins, indications of failure of
protective systems, hazardous atmospheres, or other
hazardous conditions. An inspection shall be conducted
by the competent person prior to the start of work and
as needed throughout the shift. Inspections shall also
be made after every rainstorm or other hazard
increasing occurrence. These inspections are only
required when employee exposure can be reasonably
anticipated.
§ 1926.652(a)(1) reads, in relevant part, as follows:
(1) Each employee in an excavation shall be protected
from cave-ins by an adequate protective system ...
except when .... (I) Excavations are made entirely in
stable rock; or (ii) Excavations are less than 5 feet
(1.52m)in depth and examination of the ground by a
competent person provides no indication of a potential
cave-in.
§ 1926.1053(b)(1) reads as follows:
(1) When portable ladders are used for access to an
upper landing surface, the ladder side rails shall
2
promulgated under the Occupational Safety and Health Act of 1970
(the “Act”), 29 U.S.C. §§ 651 et seq. (1994). The Secretary
issued his citation based on three types of violations: (1)
failure to adequately inspect the work site; (2) failure to
protect employees from cave-ins (shoring); and (3) failure to
extend a ladder sufficiently above the excavation surface. The
Secretary concluded that all three of these violations were
“serious” for the purposes of the Act, meaning the hazards they
produced could result in serious physical harm or death, and
proposed civil penalties totaling $ 4950 pursuant to 29 U.S.C. §
666(j).
Southwestern Bell contested the violations and penalties to
the Occupational Safety and Health Review Commission (the
“Commission”), which then conducted a Commission hearing. At
that hearing, an administrative law judge (“ALJ”) held that
Southwestern Bell did in fact violate the three safety
regulations. He reduced the ladder violation penalty, however,
and assessed fines totaling $ 4200. The Commission then
extend at least 3 feet (.9m) above the upper landing
surface to which the ladder is used to gain access; or,
when such an extension is not possible because of the
ladder’s length, then the ladder shall be secured at
its top to a rigid support that will not deflect, and a
grasping device, such as a grabrail, shall be provided
to assist employees in mounting and dismounting the
ladder. In no case shall the extension be such that
ladder deflection under a load would, by itself, cause
the ladder to slip off its support.
3
conducted an additional “directed” review of the shoring and
inspection violations and affirmed the ALJ’s findings and
penalties.2 Southwestern Bell now timely petitions this court
for review of the Commission’s final order and the $ 4200 in
penalties. This court has jurisdiction to review the final
orders of the Commission. See 29 U.S.C. § 660(a).
The following chain of events regarding the excavation and
its hazardous conditions are uncontested by the parties.
Southwestern Bell hired an excavator to dig a trench. The
trench, at completion, was more than five feet deep. Two non-
supervisory Southwestern Bell workers, Mr. Santana and Mr. Garza,
were to work in the trench. A supervisor, Ms. Beck, was at the
trench site initially but did not witness its final completion.
Upon completion of the trench, Santana called Beck to warn that
the trench was deeper than expected and that it would need
shoring or reinforcement, according to the excavator. Supervisor
Beck told the workers to keep working and did not return to look
at the trench. The trench was not shored at any time by
Southwestern Bell. During work in the trench, a ladder was
placed extending only 1.3 to 1.4 feet above the trench surface.
There is no evidence that any accidents befell Santana or Garza,
2
The ALJ’s findings as to the ladder violation and its
penalty were not reviewed additionally by the Commission but
became the final order of the Commission pursuant to 29 U.S.C. §
661(j).
4
the two employees exposed to the trench and ladder conditions
during the single-day excavation.
II. STANDARD OF REVIEW
We defer to the Commission’s findings of fact as
“conclusive” to the degree that there is “substantial evidence on
the record considered as a whole” to support those findings, even
where we could reach a different result de novo. 29 U.S.C. §
660(a). See also Kelly Springfield Tire Co., Inc. v. Donovan,
729 F.2d 317, 321 (5th Cir. 1984). We defer to the Commission’s
conclusions of law, including interpretation of any relevant
statutory provisions, to the degree that they are not “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law”. 5 U.S.C. § 706(2)(A) (1996). We review
the Commission’s interpretation of regulations promulgated under
the Act deferentially unless such interpretation is “unreasonable
or inconsistent with the regulation’s purpose”. RSR Corp. v.
Brock, 764 F.2d 355, 365 (5th Cir. 1985) (internal quotation and
citation omitted).
III. DISCUSSION
A. Competent Person to Inspect
To establish a prima facie case of regulatory violation, the
Secretary must prove that (1) the standard applies; (2) the
employer failed to comply; (3) employees had access to the
condition causing the violation; and (4) the employer had actual
5
or constructive knowledge of the violation. See, e.g., N.Y.
State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 105 (2d
Cir. 1996). Southwestern Bell contends that it complied with the
inspection regulation, and thus committed no violation, because a
competent person inspected the excavation site. Inspection of an
excavation, under § 1926.651(k)(1), requires that a “competent
person” inspect the excavation site “prior to the start of work
and as needed throughout the shift, as well as after rainfall or
other hazard increasing event.” § 1926.651(k)(1). Another
regulation further defines a competent person as “one who is
capable of identifying existing and predictable hazards in the
surroundings, or working conditions which are unsanitary,
hazardous, or dangerous to employees, and who has authorization
to take prompt corrective measures to eliminate them.” 29 C.F.R.
§ 1926.650 (1995). The Commission interpreted those regulations
together plainly to require that a competent person must have
sufficient authority to remedy violations. The Commission
further held that the two non-supervisory workers, Garza and
Santana, did not in fact have this authority. The Commission
reasoned that, although Santana and Garza “‘shared
responsibility’ for safety at the work site, they lacked the
requisite authority to abate hazards”, and thus were not
competent persons to inspect the specific trench site in the
instant case. Order of the Occupational Safety and Health Review
Commission (“Comm’n Order”), at 4-5 (Sept 27, 2000).
6
In so doing, the Commission rejected Southwestern Bell’s
contention that evidence, including the testimony of a
Southwestern Bell regional manager that employees could decline
unsafe work individually, indicated that Santana and Garza had
sufficient authority to remedy exposure to work hazards. The ALJ
likewise considered and rejected evidence regarding Santana’s and
Garza’s exposure to a training video, which merely asserted that
it was designed to ensure that all Southwestern Bell employees
were “competent” on safety issues. The Commission took note of
the fact that one of the workers called his supervisor, Beck, to
report to her that an excavator indicated that the trench would
need shoring because it exceeded five feet. The Commission
further noted that when Beck then ordered the workers into the
trench nonetheless, the workers complied, despite the fact that
the trench was never shored. The Commission concluded that if
the workers had the requisite authority to abate hazards, they
would not have simply returned to work in the potentially unsafe
condition. The Commission then confirmed what Southwestern Bell
had already conceded, that as the workers’ supervisor, Beck did
in fact have such authority, and was thus competent to inspect.
See Comm’n Order, at 4-5.
It is true that the Commission has found a non-supervisory
worker to be of competent status. See, e.g., Sec’y of Labor v.
Rawson Contractors, Inc., No. 99-0018, 2000 WL 557314, at *6
(O.S.H.R.C. May 8, 2000) (finding hourly, non-management employee
7
competent to inspect excavation where employee had “twenty years
experience in trenching and excavation operations”). However,
the Commission also frequently disqualifies even supervisory
workers, such as foremen, from competent status because the
Commission will not take authority as a per se qualification to
inspect, but interprets that a “competent person” requires
something more in the way of special training as to the safety
requirements of the task at hand. See, e.g., Sec’y of Labor v.
Westar Mech., Inc., Nos. 97-0226, 97-0227, 2000 WL 1182858, at
*1, 6-7 (O.S.H.R.C. Aug. 14, 2000) (finding neither president and
owner, nor foreman of company, competent absent their “specific
training in”, or knowledge about, “soils analysis” and the “use
of protective systems”); Sec’y of Labor v. Bruschi Bros., Inc.,
No. 96-0681, 1997 WL 580798, at *5 (O.S.H.R.C. Sept. 17, 1997)
(denying “foreman” competent person status to test a fifteen-foot
trench). Considering the Commission’s past interpretations of
what comprises a competent person for the purpose of inspections,
the Commission’s determination here that a competent person
required authority to remedy hazards is not unreasonable. Nor
can that interpretation be said to be contrary to the Act’s
purpose of protecting workers from hazards at work sites.
Moreover, the Commission’s finding that neither Santana nor Garza
had the requisite authority to abate hazards, and therefore could
not conduct inspections as competent persons, is supported by
substantial evidence in the record as a whole.
8
B. Inadequate Inspection
The Commission held that Beck did not in fact perform an
adequate inspection at the work site, and thus that the company
violated § 1926.651(k)(1). The Commission interpreted the
regulation by its plain meaning. That regulation requires daily
inspection of work sites “prior to the start of work and as
needed throughout the shift”, including after every “hazard
increasing occurrence”. § 1926.651(k)(1). The Commission
concluded from the regulation’s plain meaning that Beck should
have inspected the trench after completion and prior to the
workers entering it. See Comm’n Order, at 4-5. Such plain
meaning interpretation is not unreasonable, arbitrary, or
contrary to the safety purposes of the Act.
The Commission then found that, although Beck had been at
the trench site originally, she left the work site before the
trench was completed, and thus could not have inspected it
adequately to satisfy the plain requirement of § 1926.651(k)(1).
The Commission further noted that the call made by Santana to
Beck after she had left the work site, in which he relayed the
excavator’s warning regarding the need for shoring, indicated
that Beck knew the trench required an inspection upon completion
and that her presence at the trench at any prior point was
insufficient. These findings reflect and affirm those of the
ALJ. See Comm’n Order, at 4-5. The ALJ held that “Beck did not
9
see and, therefore, could not have inspected the finished trench
prior to the start of work. The violation is established.”
Order of Administrative Law Judge (“ALJ Order”), at 3 (Aug. 20,
1999).
Southwestern Bell contends that Beck’s attendance at the
site “inches” before the trench was completed, as well as Beck’s
observance of a pipe Beck felt provided adequate support under
the circumstances, constitutes sufficient inspection to satisfy §
1926.651(k)(1). The Commission disagreed based on its reasonable
plain interpretation of the regulation to require inspection
after completion of the trench. Substantial evidence in the
record indicates Beck failed to inspect the trench after
completion. Moreover, evidence indicates Beck ignored an
intervening alert that the trench was potentially hazardous
without shoring. The Commission’s decision that the inspection
violation occurred was based on substantial evidence.
C. Prima Facie Knowledge of the Serious Violations; Southwestern
Bell’s Affirmative Defense of Employee Misconduct
Southwestern Bell contends that the Commission erred in (1)
finding that the Secretary had properly imputed knowledge of the
violations to Southwestern Bell as part of its prima facie case;
and (2) that the Commission erred in finding that Southwestern
Bell had not made out an affirmative defense of employee
misconduct. When there has been a violation of any specific OSHA
regulation, such as the three violations in the instant case,
10
such violation constitutes violation of the “special duty clause”
of the Act, 29 U.S.C. § 654(a)(2).3 In order to impart liability
to an employer for a violation of the special duty clause, the
Secretary must prove that an employer had knowledge of the
violation as part of its prima facie case. See, e.g., Trinity
Indus. v. Occupational Safety and Health Review Comm’n, 206 F.3d
539, 542 (5th Cir. 2000) (“Knowledge is a fundamental element of
the Secretary of Labor’s burden of proof for establishing a
violation of OSHA regulations.”). To prove the knowledge
element, “the Secretary must show that the employer knew of, or
with exercise of reasonable diligence could have known of the
non-complying condition.” Id. In order to determine whether
such knowledge exists, the Commission and courts of appeals have
looked to evidence of the employer’s “safety program”, as did the
Commission in this case. Such evidence is used to determine if
the employer’s reasonable diligence in communicating safety rules
and regulations and the importance of compliance to its
employees, as well as in diligently disciplining employees for
violations, forecloses imputation of knowledge of an individual
violation to the employer. See, e.g, Horne Plumbing & Heating
3
The special duty clause requires that “[e]ach employer
... shall comply with occupational safety and health standards
promulgated under this chapter.” 29 U.S.C. § 654(a)(2). This is
in contrast to the “general duty clause,” which requires that
every employer “shall furnish to each of his employees employment
and a place of employment which are free from recognized hazards
that are causing or are likely to cause death or serious physical
harm to [its] employees.” 29 U.S.C § 654(a)(1).
11
Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 564,
569-71 (5th Cir. 1976) (examining an employer’s safety program
and finding that the employer’s program was adequately diligent
to prevent imputation of knowledge of a violation to the
employer). Analysis of an employer’s safety program to determine
whether an employer had the requisite knowledge typically
includes examination of the following types of evidence: the
employer’s instruction of employees regarding safety regulations,
employer safety policies, and compliance procedures via its
dissemination of safety manuals and holding of training sessions;
the employer’s monitoring of safety rule compliance; and the
employer’s history of sanctioning of workers that fail to comply
with regulations and policies. See, e.g., Horne Plumbing, 528
F.2d at 569 (quoting Nat’l Realty & Constr. Co., Inc. v.
Occupational Safety & Health Review Comm’n, 489 F.2d 1257, 1266
(D.C. Cir. 1973)) (internal quotation omitted).
Southwestern Bell’s claim that the Commission improperly
shifted the burden to the employer regarding proof of adequacy of
its safety program as a means of relieving the employer from
liability derives from the fact that the Commission and courts of
appeals, including this one, have recognized an affirmative
defense of employee misconduct available to employers. See,
e.g., H.B. Zachry Co. v. Occupational Safety & Health Review
Comm’n, 638 F.2d 812, 818-19 (5th Cir. Unit A Mar. 1981)
(applying the affirmative defense and affirming Commission
12
finding that employer had failed to make it out). The employee
misconduct defense is typically established by an employer
bringing forth the same evidence regarding the adequacy of its
safety program, such as evidence of training sessions attended by
an employee, that is examined to determine whether the Secretary
has proven knowledge as part of its prima facie case.4 N.Y.
State Elec., 88 F.3d at 106-110 (“We note that under the
Commission’s precedent, ... the Secretary’s prima facie case and
the employer’s unpreventable conduct defense both involve an
identical issue: whether the employer had an adequate safety
policy.”). Southwestern Bell claims, therefore, that by
requiring it to come forth with evidence regarding the adequacy
of its safety program, the Commission erred by shifting the
burden to Southwestern Bell and requiring it to first prove its
affirmative defense where, instead, the Secretary should have
been required to bring forth the same types of safety program
evidence to establish, as part of the case in chief, that
Southwestern Bell had knowledge of violations due to a lack of
safety diligence. However, on appeal, in determining whether the
Commission erred in finding that the Secretary properly
4
Four elements the employer must show to establish the
employee misconduct defense have been recognized by the
Commission and courts of appeals, including that the employer:
(1) established a work rule to prevent the violative conduct; (2)
adequately communicated this rule to its employees; (3) took
steps to discover non-compliance; and (4) effectively enforced
safety rules when violations were discovered. E.g., N.Y. State
Elec., 88 F.3d at 106 (citations omitted).
13
established Southwestern Bell’s knowledge of the safety
violations as part of its prima facie case, or in determining
whether Southwestern Bell failed to make out its affirmative
defense of employee misconduct, this court is faced with a single
inquiry. Because this court disposes of both issues by examining
the Commission’s factual finding that Southwestern Bell had an
inadequate safety program under the circumstances, see id., this
court must only determine whether that finding regarding the
inadequacy of the safety program is supported by substantial
evidence in the record as a whole.5
The Commission held that, under established Commission
precedent, it would not consider evidence establishing that
Southwestern Bell maintained a safety program adequate only in
“general” sufficient to find that Southwestern Bell lacked
imputed knowledge of the violations. Comm’n Order, at 6-7, n.4
(citing Sec’y of Labor v. Hamilton Fixture, No. 88-1720, 1993 WL
127949 (O.S.H.R.C. Apr. 20, 1993)). Rather, the Commission
determined that it was appropriate under the circumstances to
require that Southwestern Bell should have effectively
communicated and enforced the inspection and trenching safety
5
We note that while the ALJ considered safety program
evidence under an affirmative employee misconduct defense, the
Commission only addressed such evidence as dispositive of prima
facie imputed knowledge. Both found the employer’s safety
program, especially with respect to communication to Beck
specifically regarding trenching hazards, inadequate under the
circumstances. See ALJ Order, at 4; Comm’n Order, at 5-8.
14
rules specifically at issue in this case more diligently. See id.
This court has similarly interpreted that the level of adequacy
the Commission may require of a safety program to relieve an
employer of liability for a serious safety violation can include
the requirement that “all feasible steps were taken [by an
employer] to avoid the occurrence of the hazard”. H.B. Zachry,
638 F.2d at 818-20. This court has declined, therefore, in the
context of a claimed affirmative employee misconduct defense, to
relieve an employer of liability where a general safety program
exhibited deficiencies in communication regarding specific
violations at issue, or as to the employee who committed the
violation. Id. This court has only limited the level of
adequacy that might be required in a determination of whether the
adequacy of a safety program might permit a company to escape
liability by ruling that safety measures demanded must not be
unnecessarily burdensome or wholly infeasible. See Horne
Plumbing, 528 F.2d at 569-71 (finding requirement that sole
proprietor would need to personally supervise foremen at every
moment of an excavation infeasible, where the proprietor had an
extensive history of training foreman and of supplying shoring
material to excavations as a matter of course, but acknowledging
that “close supervision” can be warranted in some, albeit
relatively few, cases).
In assessing Southwestern Bell’s safety program, the
Commission noted testimony by the OSHA compliance officer that he
15
considered Southwestern Bell’s safety program “adequate” in
general. Comm’n Order, at 5. The Commission noted evidence that
one of the trench workers was given annual training regarding
excavation and trenching. It noted testimony that work site
supervisors were required to conduct “monthly safety meetings”
for non-supervisory employees and required to observe each worker
twice per month to evaluate performance. Id. at 5-6. The
Commission further noted evidence that a regional safety manager
visited the supervisors to review safety records to make sure
that the supervisors were complying “‘with the plan, conducting
their safety meetings, conducting their observations ’”, as well
as that the safety manager conducted “‘observations in the field
with the technicians’ (non-supervisory crew members such as
Santana and Garza).” Comm’n Order, at 6. The Commission then
found that, “[a]lthough [Southwestern Bell] had a safety program
and conducted site visits, there is no evidence that either the
program or the visits pertained to enforcing the competent
persons’ obligation to perform trench inspections.” Id. The
Commission further held that, under the circumstances,
Southwestern Bell had not taken “reasonable monitoring steps
regarding its site supervisor’s compliance with protective system
requirements” as to shoring. Id. at 9. The Commission thus held
that the employer had not engaged in sufficient safety diligence
to prevent the violations at issue. The Commission concluded
that knowledge could be imputed to the company and the company
16
should be held liable for the three serious violations. These
findings are based on substantial evidence in the record as a
whole.
Southwestern Bell relies on two cases that it contends are
controlling to argue that it should not be liable. In those
cases, the Commission found a safety program adequate to allow an
employer to escape liability based on the program’s general
adequacy. See Sec’y of Labor v. Brand Scaffold Builders, No. 00-
1331, 2001 WL 118562, at *4-5 (O.S.H.R.C. Feb. 5, 2001) (finding
a safety program sufficiently adequate to relieve an employer of
liability based on the existence of safety manuals, training
sessions, monthly conferences, and on evidence that the employee
who violated the rule attended the training sessions); Sec’y of
Labor v. Field & Assocs., Inc., No. 99-1951 , 2001 WL 138962, at
*2-5 (O.S.H.R.C. Feb. 12, 2001) (finding an adequate safety
program based on rules communicated via written safety policies,
the existence of a video on fall protection, safety meetings, and
random safety inspections conducted by the employer). These two
cases establish, however, only that the Commission, in this case,
could have reasonably considered evidence of Southwestern Bell’s
general safety program and periodic monitoring efforts adequate
under the circumstances.
The Commission, however, disagreed. The Commission’s
interpretation that the adequacy of a safety program demanded
evidence of more effective monitoring of the rules in question
17
and their communication to Beck is not arbitrary or contrary to
the Act’s purpose to prevent violations. This is especially true
in light of this court’s holdings in H.B. Zachry and Horne
Plumbing, indicating that the Commission may find deficiencies in
a safety program specific to the violations, and that it may
require evidence of reasonably heightened monitoring as part of
its determination that the company could not escape liability for
its violations. The Commission did not ignore Southwestern
Bell’s evidence regarding its general safety meetings, training
sessions, or periodic site visits. The Commission chose to focus
instead on the need for more aggressive monitoring. Based on the
absence of such monitoring, along with the fact of Beck’s
violation of safety regulations, the Commission determined that
the record as a whole failed to indicate a safety program
adequately diligent in communicating and enforcing rules
regarding trench inspection and shoring, and thus that knowledge
should be imputed to the company and the company could not escape
liability. This decision is supported by substantial evidence in
the record as a whole. The Commission’s decision that
Southwestern Bell’s safety program was inadequate with respect to
ensuring proper trench inspection, shoring, and ladder placement
is likewise supported by substantial evidence in the record.
D. Serious Ladder Violation
18
Southwestern Bell contends that the ladder violation, under
§ 1926.1053(b)(1), was not “serious”, but “de minimis” as a
matter of law, because it was unlikely to occur. Southwestern
Bell contends, therefore, that the Commission erred in assessing
a $ 600 penalty for that violation because no penalty should have
been assessed, as is customary for a de minimis violation. This
court defers to the Commission’s severity classifications to the
extent such classifications of violations are “supported by
substantial evidence in the record as a whole, even if the court
could reach a different result de novo.” Donovan v. Daniel
Constr. Co., 692 F.2d 818, 820 (5th Cir. 1982).
The Commission based its finding that the ladder violation
was serious on the fact that the result of any injury could
result in a broken bone, or maybe even death. The Commission
expressly characterized a broken bone as a “serious physical
harm”. ALJ Order, at 6. Courts of appeals, including this one,
have held that sufficient nexus to establish a serious violation
does not require establishing that actual physical harm occurred,
but only that serious physical harm could possibly result, even
when it is very unlikely that the injury actually would occur.
See, e.g., Turner Communications Corp. v. Occupational Safety &
Health Review Comm’n, 612 F.2d 941, 944-45 (5th Cir. 1980).
Thus, the seriousness of a violation does not turn on the
probability of the event itself, but the seriousness of the harm
that could result. See Bethlehem Steel Corp. v. Occupational
19
Safety & Health Review Comm’n, 607 F.2d 1069, 1073 (3d Cir.
1979); California Stevedore & Ballast Co. v. Occupational Safety
& Health Review Comm’n, 517 F.2d 986, 988 (9th Cir. 1975).
Moreover, in Turner this court considered and rejected a
petitioner’s contention that a violation was de minimis where an
ALJ found that a potential fall from a ladder could result in a
“serious injury”. Turner, 612 F.2d at 944-45. Consequently,
under Turner, the Commission was entitled to determine that a
serious violation had occurred if it found, based on substantial
evidence in the record, that a serious physical harm could
result.
In assessing the severity of the ladder violation, the
Commission considered the testimony of the compliance officer,
who indicated that the trench ladder extended only 1.3 to 1.4
feet above the ground, rather than the 3 feet required by §
1926.1053(b)(1). The Commission further noted that, although the
compliance officer testified he had observed that the workers had
no actual difficulties in exiting from the trench, he also
testified that in the event a trip occurred, it could “sprain an
ankle, damage a knee, or even break a leg.” ALJ Order, at 5.
The Commission then admonished Southwestern Bell’s contention
regarding the nature of the potential for injury, saying “This
judge does not agree that a broken bone is not ‘serious physical
harm’ as contemplated by the Act.” Id. at 6. The Commission was
reasonably entitled to consider the low probability of accident
20
irrelevant under Turner, Bethlehem Steel, and California
Stevedore. The Commission’s determination that a serious broken
bone could result was based on substantial evidence in the record
as a whole. Because Southwestern Bell does not claim that the
Commission abused its discretion in assessing the $ 600 penalty
for the ladder violation, but only claims that the Commission
wrongly classified the violation, a claim with which this court
disagrees, that penalty remains undisturbed.
E. $ 3600 in Penalties for the Shoring and Inspection Violations
Southwestern Bell contends that the $ 2250 and $ 1350 total
penalties assessed by the Commission for its shoring and
inspection violations, respectively, are excessive and should be
reduced. We review the Commission’s penalty assessments under 29
U.S.C § 666(j) for abuse of discretion. See Dan J. Sheehan Co.
v. Occupational Safety & Health Review Comm’n, 520 F.2d 1036,
1041 (5th Cir. 1975). Once the Commission properly determined
that all three violations were serious, it was mandatorily
required to assess some penalty of up to $ 7000 per violation but
granted discretion within that range. See id. at § 666(b). In
exercising its discretion as to the “appropriate[]” amount of
each penalty, the Commission is statutorily required to give “due
consideration” to four factors appearing within § 666(j),
including: (1) the “size of the business of the employer”; (2)
the “gravity of the violation”; (3) any “good faith of the
21
employer”; and (4) any “history of previous violations”. Id. at
§ 666(j). See also Reich v. Arcadian Corp., 110 F.3d 1192, 1199
(5th Cir. 1997). The four § 666(j) factors need not be weighted
equally by the Commission, and the gravity factor is generally
considered the most important element of the analysis. See,
e.g., J.A. Jones Constr. Co., No. 87-2059, 1993 WL 61950, at *15
(O.S.H.R.C. Feb. 19, 1993).
This and other courts of appeals have a long history of
according great deference to the Commission’s judgment as to the
appropriate penalty when, as here, the Commission gives
consideration to the statutory factors, and when the penalty
amounts fall within the statutory mandate. Such courts of
appeals have done so in a wide range of circumstances, including
instances where the penalties assessed are at or near the maximum
statutorily allowed and thus much higher than those assessed
here. See, e.g., Georgia Elec. Co. v. Marshall, 595 F.2d 309,
322 (5th Cir. 1979) (affirming $ 6500 penalty assessed for a
willful and serious violation regarding indifference to worker
safety, and a $ 650 fine for a serious crane operation
violation); Shaw Constr., Inc. v. Occupational Safety & Health
Review Comm’n, 534 F.2d 1183, 1185 (5th Cir. 1976) (affirming $
300 penalty assessed for trenching violation deemed serious);
Union Tank Car Co., Inc. v. Occupational Safety & Health Admin.,
192 F.3d 701, 707 (7th Cir. 1999) (affirming penalty of $ 1500
22
for employer’s failure to use body harnesses, which created fall
hazards); Bush & Burchett, Inc. v. Reich, 117 F.3d 932, 935-36,
939-40 (6th Cir. 1997) (affirming penalties totaling $ 337,200
for 25 serious violations, 10 willful violations, and 2 other
violations, including fall protection and improper lifting of
workers to work stations); Long Mfr. Co., N. C., Inc. v.
Occupational Safety & Health Review Comm’n, 554 F.2d 903, 907,
909 (8th Cir. 1977) (affirming $ 5000 penalty for violation
regarding punch press safety, despite that one dissenting
commissioner felt the penalty was “grossly excessive”).
Apparently, no court of appeals, including this one, has ever
disturbed a penalty when, as in the instant case, the Commission
has given due consideration to the § 666(j) factors, and when the
penalty amount is within the statutorily proscribed limits.
In making its assessment affirming the ALJ’s penalties, the
Commission considered all four of the § 666(j) factors. As
Southwestern Bell acknowledges, the Commission first credited the
company with two factors in its favor, good faith and a lack of
prior violations. The Commission also fully noted in
Southwestern Bell’s favor that there was evidence in the record
that the “actual[]” danger of the violation was mitigated because
the excavation was of only one-day duration and because there was
testimony that, at the time, the “the ground was like ‘solid
cement’ due to lack of recent rain”. Comm’n Order, at 9. The
Commission’s assessment as a whole clearly indicates that the
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Commission considered that, despite the low actual danger of
injury, the potential danger rose to a significant level in that
the violation, if it in fact occurred, would result in “serious
injury or death”. Id. The Commission also made clear that it
considered this level of danger, albeit only potential, to be
“aggravated”, and thus increased, because the “the excavator had
warned a [Southwestern Bell] supervisor of the need for trench
protection.” Id. at 9-10. Then the Commission properly added
the weight of Southwestern Bell’s size as a “large employer” to
the overall penalty determination. Id. The Commission concluded
that the negative factors outweighed the positive factors
sufficiently so that, “[o]n balance”, it felt the ALJ’s penalty
assessments “were appropriate.” Id. at 10.
Southwestern Bell contends that four Commission decisions,
in which it assessed lower penalties for what the company
contends were violations of arguably heightened gravity, compel
this court to find an abuse of discretion and thus to reduce the
penalties. Those four cases merely establish, however, that the
Commission might have exercised its discretion reasonably to
assess lower penalties under the circumstances here. See Sec’y
of Labor v. Scafar Contracting, Inc., No. 97-0960, 1998 WL
597441, at *6 (O.S.H.R.C. Sept. 4, 1998) (assessing a $ 1500
penalty for a trenching violation that created “significant”
danger of trench collapse where the employer also had a negative
24
violation history); Sec’y of Labor v. Brandenburg Indus. Servs.
Co., No. 96-1405, 1998 WL 168335, at *4 (O.S.H.R.C 1998)
(assessing a $ 1625 penalty for a trenching violation, and
including a 35% reduction for good faith and favorable prior
history); Sec’y of Labor v. Odyssey Capital Group, III, L.P., No.
98-1745, 1999 WL 1278190, at *4 (O.S.H.R.C. Dec. 30, 1999)
(assessing a $ 1500 penalty for a violation of extended duration
compounded by lack of good faith); Sec’y of Labor v. Manganas
Painting Co., Inc., Nos. 93-1612, 93-3362, 1996 WL 478959, at
*14-15 (O.S.H.R.C. Aug. 23, 1996) (assessing just a $1000
penalty, although the gravity was deemed “relatively high” and
employee exposure was low, and despite multiple prior
violations). That the Commission chose to exercise its
discretion differently, but still within permissible parameters,
does not establish an abuse of discretion. See, e.g., Odeco Oil
& Gas Co., Drilling Division v. Bonnette, 4 F.3d 401, 404 (5th
Cir. 1993).
The record shows that the Commission gave full consideration
to the four § 666(j) factors. The total $ 3600 penalty assessed
for Southwestern Bell’s two serious inspection and shoring
violations falls well below the $ 14,000 that the Commission was
entitled to assess. The Commission, therefore, did not abuse its
discretion in assessing the $ 3600 in total penalties for those
two violations.
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IV. CONCLUSION
For the foregoing reasons, the Commission’s orders are
AFFIRMED.
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