Wayne J. Griffin Electric, Inc v. Secretary of Labor ( 2019 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued September 21, 2018                Decided July 2, 2019
    No. 17-1189
    WAYNE J. GRIFFIN ELECTRIC, INC.,
    PETITIONER
    v.
    SECRETARY OF LABOR,
    RESPONDENT
    On Petition for Review of a Final Order
    of the Occupational Safety & Health Review Commission
    OSHRC Case No. 15-0858
    Dion Y. Kohler argued the cause and filed the briefs for
    petitioner.
    Brian A. Broecker, Attorney, U.S. Department of Labor,
    argued the cause for respondent. With him on the brief were
    Ann S. Rosenthal, Associate Solicitor, and Heather R. Phillips,
    Counsel.
    Before: SRINIVASAN and KATSAS, Circuit Judges, and
    GINSBURG, Senior Circuit Judge.
    Opinion for the Court filed by Circuit Judge KATSAS.
    2
    KATSAS, Circuit Judge: Petitioner Wayne J. Griffin
    Electric, Inc. seeks review of a citation for violating workplace
    safety standards designed to prevent electric shock. The case
    largely turns on administrative findings about the carelessness
    of a Griffin supervisor.
    I
    The Occupational Safety and Health Act of 1970 requires
    employers to provide a workplace “free from recognized
    hazards” likely to cause death or serious injury, 29 U.S.C.
    § 654(a)(1), and to “comply with occupational safety and
    health standards” promulgated by the Secretary of Labor, 
    id. § 654(a)(2).
    One such safety standard requires an employer,
    before employees begin work, to “ascertain by inquiry or direct
    observation, or by instruments, whether any part of an
    energized electric power circuit” is “so located that the
    performance of the work may bring any person” into contact
    with the circuit. 29 C.F.R. § 1926.416(a)(3). Another standard
    prohibits an employer from permitting work “in such proximity
    to any part of an electric power circuit that the employee could
    contact” the circuit, unless it is de-energized or effectively
    guarded. 
    Id. § 1926.416(a)(1).
    Griffin was hired to upgrade electrical systems in two
    office buildings owned by Fidelity Investments. To prepare for
    work on two substations, Griffin foreman Keith Piechocki
    wrote a method of procedure called MOP-51. A written MOP
    includes step-by-step instructions for each segment of the
    work—including what electrical equipment must be de-
    energized and who is responsible for each task. In this case,
    MOP-51 required de-energizing the substations, but not a metal
    bar connected to one of them. Piechocki omitted the latter step
    because he assumed that the bar was not energized, even
    though project drawings revealed otherwise.
    3
    Piechocki presented MOP-51 at a meeting attended by
    Fidelity and other contractors involved in the project. He also
    shared a final draft of it with his own supervisors. Nobody
    noticed the mistake.
    Griffin had two general safety policies in place at the time.
    The No Live Work policy prohibited employees from working
    close to “an electrical system with exposed energized parts.”
    J.A. 32. The Test Before You Touch policy required
    employees to “‘[t]est every circuit, every conductor, every time
    you touch!’—even if it seems ‘redundant or unnecessary.’” 
    Id. Piechocki and
    Griffin employee Brian Jusko did the work
    on one substation described in MOP-51. Before they began,
    Piechocki and Jusko tested the substation, but not the bar
    connected to it. As they worked, Jusko inadvertently touched
    the live bar. He suffered significant injuries as a result.
    Following an investigation, the Occupational Safety and
    Health Administration, which administers the Act for the
    Secretary, cited Griffin for failing to determine whether the
    circuit was energized and for permitting employees to work
    close to a live circuit. The Administration concluded that the
    violations were serious and recommended a civil penalty of
    $14,000.
    Griffin sought review before the Occupational Safety and
    Health Review Commission. An administrative law judge
    affirmed the citation and assessed a penalty of $7,000. When
    the Commission declined further review, the ALJ’s decision
    became its final order by operation of law. 29 U.S.C. § 661(j).
    Griffin now seeks review in this Court.          We have
    jurisdiction under 29 U.S.C. § 660(a).
    4
    II
    We must determine whether the Commission’s order was
    “arbitrary, capricious, an abuse of discretion, or otherwise not
    in accordance with law.” 5 U.S.C. § 706(2)(A). We accept the
    Commission’s factual findings if they are “supported by
    substantial evidence on the record considered as a whole.” 29
    U.S.C. § 660(a). Substantial evidence is evidence that “a
    reasonable mind might accept as adequate to support a
    conclusion.” AJP Constr., Inc. v. Sec’y of Labor, 
    357 F.3d 70
    ,
    73 (D.C. Cir. 2004) (quotation marks omitted).
    The ALJ affirmed citations for two serious violations of
    the Act. A serious violation is one that creates a “substantial
    probability” of death or serious physical harm “unless the
    employer did not, and could not with the exercise of reasonable
    diligence, know of the presence of the violation.” 29 U.S.C.
    § 666(k). A serious violation thus has four elements: “(a) the
    applicability of the cited standard, (b) the employer’s
    noncompliance with the standard’s terms, (c) employee access
    to the violative conditions, and (d) the employer’s actual or
    constructive knowledge of the violation (i.e., the employer
    either knew, or with the exercise of reasonable diligence could
    have known, of the violative conditions).” AJP 
    Constr., 357 F.3d at 71
    (quotation marks omitted).
    Griffin argues that it complied with the two safety
    standards, that it lacked actual or constructive knowledge of
    any violations, and that it was entitled to an unpreventable-
    misconduct defense. We reject these contentions.
    A
    Substantial evidence supports the ALJ’s determination
    that Griffin violated both safety standards.
    5
    The first standard required Griffin to “ascertain,” before
    Piechocki and Jusko began their work, whether any energized
    part of the circuit was “so located that the performance of the
    work” may have brought them into contact with it. 29 C.F.R.
    § 1926.416(a)(3). The ALJ’s finding that Griffin violated this
    standard is amply supported; part of the circuit was energized,
    Jusko touched it, and Griffin did not ascertain the hazard before
    work began.
    Griffin argues that there was no violation because it acted
    reasonably. According to Griffin, it did enough by establishing
    general safety policies, relying on the MOP process, and
    entrusting its responsibilities to Piechocki, an experienced
    electrician. These arguments suffer from the same basic flaw.
    None of them addresses the dispositive question: did Griffin
    “ascertain” whether there was a live circuit that Jusko might
    touch? The answer is surely no.
    In any event, even if the standard required only reasonable
    efforts, the ALJ permissibly found a violation. Griffin’s
    general safety policies do not establish that it was reasonably
    careful regarding the incident in question. To the contrary, the
    ALJ reasonably found that the policies were not adequately
    communicated to Piechocki and others. See J.A. 34–35.
    Moreover, MOP-51 did not include a step to determine whether
    the bar was energized, and the ALJ reasonably concluded that
    this oversight reflected carelessness by Griffin’s supervisors.
    See J.A. 19–20. Finally, Griffin cannot escape responsibility
    for that carelessness. The governing duties of care ran against
    Griffin as an “employer.” 29 U.S.C. § 654(a); 29 C.F.R.
    § 1926.416(a). Griffin therefore was “subject to liability if any
    person to whom [it] entrust[ed] the task of compliance with the
    statute [was] negligent.” Restatement (Second) of Agency
    § 520 cmt. a (1958) (Second Restatement).
    6
    Because the bar was live and unguarded, the second safety
    standard prohibited work “in such proximity” that an employee
    “could contact” it. 29 C.F.R. § 1926.416(a)(1). It is
    undisputed that Jusko was working close enough to touch the
    bar, so Griffin plainly violated this provision as well.
    B
    Griffin next contends that it did not have actual or
    constructive knowledge of these violations. The ALJ found
    that Piechocki had both actual and constructive knowledge.
    J.A. 24–25. In its opening brief, Griffin did not challenge the
    finding of constructive knowledge. Griffin hinted at such an
    argument in its reply brief, but that came too late. See Am.
    Wildlands v. Kempthorne, 
    530 F.3d 991
    , 1001 (D.C. Cir.
    2008). Accepting that Piechocki had constructive knowledge,
    we consider only whether the ALJ permissibly imputed the
    knowledge to Griffin. We hold that she did.
    Under the common law of agency, a supervisor’s
    knowledge of safety violations often is imputed to the
    employer. See, e.g., Second Restatement §§ 277, 496. The
    same rule governs cases under the Act. See, e.g., Dana
    Container, Inc. v. Sec’y of Labor, 
    847 F.3d 495
    , 499 (7th Cir.
    2017) (“When an employee is acting within the scope of her
    employment, her knowledge is typically imputed to the
    employer.”); Quinlan v. Sec’y, U.S. Dep’t of Labor, 
    812 F.3d 832
    , 837 (11th Cir. 2016) (“where the Secretary shows that a
    supervisor had either actual or constructive knowledge of the
    violation, such knowledge is generally imputed to the
    employer” (quotation marks omitted)). Nonetheless, four
    circuits have held that a supervisor’s knowledge of his own
    violations may be imputed only if the violations were
    foreseeable to others in the company. See W.G. Yates & Sons
    Constr. Co. v. OSHRC, 
    459 F.3d 604
    , 607–09 (5th Cir. 2006)
    7
    (collecting cases); Ocean Elec. Corp. v. Sec’y of Labor, 
    594 F.2d 396
    , 401 (4th Cir. 1979). In contrast, two other circuits
    seem to permit such imputation without requiring
    foreseeability. See Dana 
    Container, 847 F.3d at 499
    –500;
    Danis-Shook Joint Venture XXV v. Sec’y of Labor, 
    319 F.3d 805
    , 812 (6th Cir. 2003).
    Griffin asks us to require foreseeability in these
    circumstances. Given the background common law of agency,
    we are skeptical of such a requirement. But Griffin barely
    briefed the issue, and we need not decide it. Here, the ALJ
    found that Piechocki’s carelessness was foreseeable to other
    Griffin supervisors. J.A. 28–31. Substantial evidence supports
    that finding: Piechocki’s superiors received a copy of MOP-51,
    which did not contain a step to de-energize the bar even though
    project drawings revealed that it was live. That is enough to
    establish foreseeability, assuming it was necessary to do so.
    C
    The ALJ reasonably rejected Griffin’s “unpreventable
    employee misconduct” defense. “To establish this defense, an
    employer must demonstrate that it (1) established a work rule
    to prevent the reckless behavior and/or unsafe condition from
    occurring, (2) adequately communicated the rule to its
    employees, (3) took steps to discover incidents of
    noncompliance, and (4) effectively enforced the rule whenever
    employees transgressed it.” Frank Lill & Son, Inc. v. Sec’y of
    Labor, 
    362 F.3d 840
    , 845 (D.C. Cir. 2004) (quotation marks
    omitted).
    The ALJ permissibly concluded that Griffin failed to prove
    the second element of the defense. A rule is not adequately
    communicated when employees are confused. See Frank 
    Lill, 362 F.3d at 845
    . Here, the ALJ found that Piechocki was
    confused about whether the No Live Work policy applied,
    8
    whether he was supposed to test areas of potential inadvertent
    contact, and what parts of the relevant circuits could be
    energized. J.A. 34–35. Substantial evidence, including
    Piechocki’s testimony about the policy and his actions on the
    day of the incident, supports those findings. See J.A. 20–21
    n.15.
    III
    The ALJ ruled against Griffin based on findings supported
    by substantial evidence. We therefore deny the petition for
    review.
    So ordered.