     Case: 15-60917       Document: 00513737805         Page: 1     Date Filed: 10/28/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                       No. 15-60917
                                                                                FILED
                                                                         October 28, 2016
                                                                           Lyle W. Cayce
BYRD TELCOM, INCORPORATED,                                                      Clerk

               Petitioner

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;
THOMAS E. PEREZ, SECRETARY, DEPARTMENT OF LABOR,

               Respondents




                    On Petition for Review of an Order of the
               Occupational Safety and Health Review Commission
                                Case No. 13-1759


Before JOLLY, HAYNES and GRAVES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
       Byrd Telcom, Inc. (“Byrd Telcom” or “Byrd”) seeks review of an order
upholding a citation under the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“OSH Act”). The citation derived from a tragic accident
involving two Byrd Telcom workers who were killed on a cellular tower by a
falling gin pole that was not rigged properly. The Administrative Law Judge



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 15-60917
(“ALJ”) upheld the citation and assessed a penalty of $7,000.           We affirm
because substantial evidence on the record as a whole supports the ALJ’s
findings.
                                         I.
      Byrd Telcom provides in-house tower climbing services. Its worksite in
Georgetown, Mississippi—a 300-foot Verizon Wireless cellular tower—became
the scene of a fatal accident on May 28, 2013. A number of workers had
mounted the tower and were engaged in hoisting a gin pole up the tower’s face.1
The carabiner connected to the rigging suddenly gave way, and the falling gin
pole struck workers Johnny Martone and Michael Castelli, killing them both,
actually decapitating Martone. The steel gin pole was 40 feet in length and
weighed approximately 1,800 pounds.
      Byrd Telcom was subcontracted by Andrew Systems, Inc., to conduct an
upgrade of the cellular tower. At the time of the accident, Byrd Telcom had
been using the safety manual of its predecessor, Circle B Electric & Tower.
The standard industry practice for the rigging of gin poles involves the use of
two chokers connected together with a shackle. One week prior to the accident,
however, employees John Davidson and Martone used a carabiner2 instead
because Davidson “couldn’t find” a shackle and choker for this job and “had
none on the truck.” Davidson had never before set up rigging at the top of a




      1  This process is known as “jumping the gin pole.”
      2   The carabiner used was PenSafe Model #C775. Notwithstanding its compliance
with ANSI, Canadian, and International standards, the carabiner is designed for fall
protection, not for hoisting large objects.
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                                      No. 15-60917
tower for a gin pole.3        Their supervisor Claudia Trammell also had no
experience rigging gin poles.4
       The two deaths spurred a fatality investigation by John Sauls, Jr., a
Compliance Safety and Health Officer with the United States Department of
Labor’s Occupational Safety and Health Administration (“OSHA”).                      Sauls
issued a citation under the OSH Act, alleging two serious violations of the
“general duty” clause, 29 U.S.C. § 654(a)(1), accompanied by proposed
penalties totaling $14,000. Byrd Telcom appealed, and the Secretary of Labor
(the “Secretary”) filed a subsequent complaint with the Commission. The
complaint amended Instances (b) and (c) of Item 2 and added Instance (d) of
Item 2. The Secretary then made unopposed motions to withdraw Instances
(b) and (d), which the Commission granted before trial. The Commission
therefore addressed Instances (a) and (c) of Item 2 with a proposed penalty of
$7,000—the maximum civil statutory penalty under 29 U.S.C. § 666(b).
       At the hearing, the ALJ considered the Secretary’s arguments that Byrd
Telcom violated the “general duty” clause in both Instances:
       In Instance (a) when the workers “were exposed to struck-by
       hazards while raising a gin pole and were not protected by a
       properly secured top (hook) block used in raising a gin pole,” and

       In Instance (c) when “the gin pole was not permanently marked
       with an identification number that references a specific load chart
       and gin pole weight, thereby exposing employees on and near the
       tower to struck-by hazards while raising the gin pole.”



       3 Davidson had, however, participated in jobs in which shackles and chokers were
used to rig gin poles. The ALJ found that his choice of the “biggest carabiner” (which he
“figured . . . would be the strongest”) was “inconsistent with the industry practice and its
design and safety rating.”
       4 Trammell quit her job as foreman before the day of the accident. During the OSHA

investigation, Davidson said that “they really didn’t know who was in charge the day of the
accident but that he was not in charge.” Other interviewed workers explained that “everybody
knew what to do and they went about their job and did it.”
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                                 No. 15-60917
Byrd Telcom denied these allegations and asserted the lack of an
employer/employee relationship because Byrd Telcom did not exercise
sufficient control over the worksite.
      At the end of the protracted hearing, the ALJ found that Byrd Telcom
was an “employer” within the meaning of the OSH Act. The ALJ then affirmed
Byrd Telcom’s violations of the General Duty Clause in Instances (a) and (c)
and assessed the $7,000 penalty. The ALJ concluded that the two violations
were “serious” within the meaning of the OSH Act because they resulted in two
fatalities. See 29 U.S.C. § 666(k) (2012).
      The OSH Review Commission declined discretionary review of the
citation of Byrd Telcom.     Thus, within thirty days of the Commission’s
receiving Byrd’s Petition for Discretionary Review, the decision of the ALJ
became the final order of the Commission. See 29 U.S.C. § 661(j). Byrd Telcom
filed a timely petition for review, contesting the Commission’s findings
concerning the safety violations.       The company does not challenge the
Commission’s finding of an employer/employee relationship between Byrd
Telcom and the workers Castelli and Martone.
                                        II.
      This Court reviews the ALJ’s findings of fact to ensure that they are
“supported by substantial evidence on the record considered as a whole.” 29
U.S.C. § 660(a). Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Chao v.
OSHRC, 401 F.3d 355, 362 (5th Cir. 2005) (quoting Consolo v. Fed. Mar.
Comm’n, 383 U.S. 607, 619–20 (1966)).         The ALJ’s legal conclusions are
reviewed to determine whether they are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Trinity Marine Nashville,
Inc. v. OSHRC, 275 F.3d 423, 427 (5th Cir. 2001).


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                                  No. 15-60917
      Byrd Telcom is charged with committing two “serious violations” of the
General Duty Clause of the OSH Act, 29 U.S.C. § 654(a)(1). The Clause is a
catch-all provision, to be considered when no other specific standard applies.
Reich v. Arcadian Corp., 110 F.3d 1192, 1196 (5th Cir. 1997). Section 654(a)
states:
   (a) Each employer—
         (1) 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 his employees;
         (2) shall comply with occupational safety and health standards
             promulgated under this chapter.
29 U.S.C. § 654(a) (2012). Subsection (1) provides the language of the General
Duty Clause. To establish a violation of the Clause, the Secretary must prove
“(1) that the employer failed to render its workplace ‘free’ from a hazard which
was (2) ‘recognized’ and (3) ‘causing or likely to cause death or serious physical
harm.’” Arcadian, 110 F.3d at 1197 (quoting Nat’l Realty & Constr. Co. v.
OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973)).           Section 654(a)(1) is not
designed to impose liability on the employer for the missteps of an employee
on a respondeat superior basis. Getty Oil Co. v. OSHRC, 530 F.2d 1143, 1145
(5th Cir. 1976). Under the General Duty Clause, employers must, rather,
“discover and exclude from the workplace ‘[a]ll [feasibly] preventable forms and
instances of hazardous conduct.’” Id. (quoting Nat’l Realty, 489 F.2d at 1267
& nn. 34-37) (alteration in original) (emphasis added).
      Serious violations of the General Duty Clause affix additional elements
that the Secretary must establish as part of his prima facie case. The OSH Act
defines a “serious violation” as follows:

      For purposes of this section, a serious violation shall be deemed to
      exist in a place of employment if there is a substantial probability
      that death or serious physical harm could result from a condition
      which exists, or from one or more practices, means, methods,
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                                 No. 15-60917
    operations, or processes which have been adopted or are in use, in
    such place of employment 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) (emphasis added).          The “substantial probability”
requirement is key in an analysis of whether a violation is serious.    Chao v.
OSHRC, 401 F.3d at 367. Further, “employer knowledge is a required element
of a § 666(k) violation.” W.G. Yates & Sons Const. Co. v. OSHRC, 459 F.3d 604,
607 (5th Cir. 2006); see also Horne Plumbing & Heating Co. v. OSHRC, 528
F.2d 564, 568 (5th Cir. 1976).
                                      III.
      The first issue involves Instance (a), when the workers “were exposed to
struck-by hazards while raising a gin pole and were not protected by a properly
secured top (hook) block used in raising a gin pole.” In this case there is no
dispute that rigging a gin pole while using a carabiner is a hazardous activity.
Further, there is no dispute that when such an activity is conducted on a 300-
foot tower, it carries with it a “substantial probability that death or serious
physical harm” may result. See 29 U.S.C. § 666(k). The dispute arises in the
employer-knowledge element of a serious violation. The language of § 666(k)
itself addresses this key element, providing that dangerous practices will
constitute a serious violation “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).     Because the statute holds employers accountable for
violations that they could have uncovered through reasonable diligence, it
incorporates both actual and constructive knowledge.
      Byrd Telcom contends that the Commission erred in finding that Byrd
had knowledge of the Instance (a) violation. To support its argument, Byrd
alleges that the actual knowledge of John Davidson—whom Byrd identifies as
the foreman at the time of the accident and who instigated the misconduct

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                                      No. 15-60917
himself by rigging the gin pole with the carabiner—cannot be imputed to Byrd
as the employer. Byrd Telcom points to authority in Horne and W.G. Yates. In
Horne, this court declined to find employer liability on an imputation theory
when the acts of the employees are “unforeseeable, implausible, and therefore
unpreventable.” Horne, 528 F.2d at 571. Our court in W.G. Yates interpreted
Horne as indicating that “a supervisor’s knowledge of his own malfeasance is
not imputable to the employer where the employer’s safety policy, training, and
discipline are sufficient to make the supervisor’s conduct in violation of the
policy unforeseeable.” W.G. Yates, 459 F.3d at 608–09.
       We find Byrd’s contention unconvincing and hold that substantial
evidence supports the ALJ’s findings. The ALJ found that the Secretary had
established Byrd Telcom’s constructive knowledge of the serious violation as a
result of Byrd’s inadequate safety program.5 In particular, the ALJ found that
Byrd had no work rules designed to address the proper rigging of a gin pole,
did not train employees to prepare them to rig a gin pole, and did not discipline
John Davidson for his hazardous choice in using a carabiner to rig the gin pole.
Byrd did not adequately respond to this evidence by proving that the employee
conduct was unpreventable. See W.G. Yates, 459 F.3d at 609 n.7 (noting that
the affirmative defense of unpreventable employee misconduct requires an
employer to show that it “(1) has established work rules designed to prevent
the violation, (2) has adequately communicated these rules to its employees,



       5 Byrd Telcom has argued that the ALJ improperly shifted the burden of proving the
adequacy of the safety program to Byrd because the ALJ included his discussion of
constructive knowledge within a section of his findings addressing affirmative defenses. The
language of the opinion clearly indicates otherwise. Within his discussion, the ALJ uses such
language as “the Secretary established” and notes that “the Secretary argues, and the Court
agrees, there is sufficient evidence of constructive knowledge in this case based on Byrd
Telcom’s inadequate safety program.” Further, the Secretary addressed the issue of
constructive knowledge during his case-in-chief. Thus, we do not find that the burden of
proof was improperly shifted.
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                                      No. 15-60917
(3) has taken steps to discover violations, and (4) has effectively enforced the
rules when violations have been discovered”). Because substantial evidence
supports the finding that Byrd had constructive knowledge of the violation, we
do not reach the question of whether John Davidson was in a supervisory
position on the day of the accident. Irrespective of who was serving as foreman,
the inadequacy of Byrd Telcom’s safety program rendered a serious violation
of the General Duty Clause foreseeable. Thus, we affirm the Commission’s
decision with respect to Instance (a).
                                            IV.
       The second issue concerns Instance (c), when “the gin pole was not
permanently marked with an identification number that references a specific
load chart and gin pole weight, thereby exposing employees on and near the
tower to struck-by hazards while raising the gin pole.”6                    The primary
consideration with respect to this issue stems from the “recognized hazard”
element of the General Duty Clause. 29 U.S.C. § 654(a)(1). That is, a hazard
may be recognized when it does not satisfy industry standards for the activity.
       Here, the parties differ in their interpretations of whether the industry
standard requires each section of the gin pole to be marked, or whether a single
marking will suffice. Byrd Telcom contends that industry custom does not
require every section to be marked as long as the gin pole is marked in such a
way that all employees are aware of the load chart requirements.                        The
Secretary argues, and the ALJ found, that each section should be marked in
accordance with ANSI/TIA-1019-A-2012, section 6.2.6:
           a) Each gin pole assembly and associated rooster head shall be
              permanently marked or otherwise clearly referenced for
              identification to its load chart.


       6The load chart indicates the amount of weight that a gin pole can withstand; thus,
when a gin pole cannot be associated with its proper load chart, employees operating the lift
are exposed to potentially serious hazards should the pole give way.
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                                No. 15-60917
         b) The gin pole installation documents shall identify sections
            requiring a specific installation sequence and the sections
            shall be appropriately marked.
         c) If a track is used to lift, or jump a gin pole, it shall be
            identified and acceptable rigging arrangements shall be
            included in the installation documents.
      The ALJ also found that the gin pole sections at the worksite on the day
of the accident were not marked. The gin pole consisted of four sections: two
white, one red, and one blue. The exhibits offered by Byrd into evidence
indicated that a white gin pole section was stamped with an identification
number. The white section, however, was not at the site. Furthermore, the
red and blue sections were not stamped. Because the gin pole sections were
not marked, the ALJ found that the employees were exposed to a high risk of
death or serious physical harm resulting from a potential overloading of the
gin poles. The ALJ also found that the hazard could have been prevented by
properly marking the red and blue sections and verifying the load
requirements before beginning the lift job according to industry standards.
      We hold that substantial evidence exists to support the finding that the
gin pole sections on site when the accident occurred were not marked, and thus
that Byrd Telcom committed a serious violation of the General Duty Clause in
Instance (c). Not only did the ALJ find that the on-site gin pole sections were
not marked, but he also found that the corresponding load chart was not
present on the site. Thus, the employees were unable to accurately identify
the load chart requirement and verify the load prior to the lift. Because we
find that the gin pole sections were not properly marked, we need not inquire
into whether the industry standard demands that all sections of a gin pole be
marked, or whether a single marking will suffice. Rather, we find that the
unmarked gin pole sections and absence of a correct load chart generated a
substantial probability that death or physical harm would result and thus
constituted a serious violation. We therefore affirm the Commission’s order.
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                                      No. 15-60917
                                            V.
       In addition to challenging the two serious violations, Byrd Telcom
attacks the witness credibility findings of the ALJ.7 We find no support for this
argument.      The ALJ provided ample explanation when he addressed the
credibility of each witness’s testimony, and there is no indication in the record
that such conclusions were ill-founded. Thus, we decline to give weight to this
argument.
                                            VI.
       In sum, we hold that substantial evidence on the record as a whole
supports the ALJ’s findings with respect to Instance (a) and Instance (c) of Item
2 of the citation.       Thus, the petition for review is DENIED and the
Commission’s order is AFFIRMED.




       7 In particular, Byrd Telcom asserted in its brief and during oral argument that the
ALJ’s finding that John Davidson was a credible witness was incorrect. We acknowledge
that, absent evidence in the record to the contrary, an attempt to discredit the credibility
findings of the ALJ—though not futile—is nonetheless a steep hill to climb.
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