     Case: 12-60840       Document: 00512303131         Page: 1     Date Filed: 07/10/2013




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

                                                                            FILED
                                                                            July 10, 2013

                                     No. 12-60840                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DEEP SOUTH CRANE & RIGGING COMPANY,

               Petitioner

v.

SETH D. HARRIS, ACTING SECRETARY, DEPARTMENT OF LABOR,

               Respondent


                     Petition for Review of an Order of the
               Occupational Safety and Health Review Commission
                                   No. 09-0240


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Deep South Crane & Rigging Company (“Deep South”) petitions for review
of an order of the Occupational Safety and Health Review Commission (the
“Commission”) citing Deep South for two violations of the Occupational Safety
and Health Act (“OSH Act”) and its implementing regulations after one of Deep
South’s cranes collapsed. Because substantial evidence supports the
Commission’s decision, we DENY the petition.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60840

                        FACTS AND PROCEEDINGS
      In July 2008, four Deep South employees were killed when one of the
company’s VersaCrane TC36000 cranes collapsed backwards at a work site in
Houston, Texas. The Occupational Safety and Health Association (“OSHA”)
investigated and determined that the accident occurred when the crane operator,
Marion Odom, raised the 420-foot long boom too high and placed too much
weight on the backside mast, in what is known as a “backwards overhaul”
position, and left it in that position for approximately three hours. It also found
that Odom was not qualified to operate the crane by himself, and that the site
supervisor, Danny Aydell, was unaware that Odom had placed the crane in a
backwards overhaul position because Aydell was standing behind the crane at
the time of the accident.
      Based on the results of its investigation, OSHA issued Deep South three
citations for eleven violations of the OSH Act. These citations were addressed
through settlement, vacated upon further administrative review, or affirmed.
Deep South seeks review of the decision by the Commission affirming the
Administrative Law Judge’s affirmance of two of the citation items: (1) a serious
violation of the OSH Act’s general duty clause, 29 U.S.C. § 654(a)(1), and (2) a
repeat violation of 29 C.F.R. § 1926.20(b)(4), the Department of Labor’s general
safety and health provision requiring an employer to allow only qualified
employees to operate machinery.
      OSHA issued Deep South the general duty clause violation for exposing
its employees to the hazard of being struck by the boom of a crane, because Deep
South failed to require Aydell to ensure that Odom was qualified to operate the
TC36000. Among other things, Aydell never verified that Odom could read the
TC36000 load charts, had taken and passed a written exam on operation of the
TC36000, and had satisfactorily completed an operational test on the TC36000.



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      OSHA issued the § 1926.20(b)(4) violation to Deep South for allowing
Odom, an unqualified operator, to operate the TC36000. It classified this
violation as a repeat violation because it had cited Deep South for a violation of
the § 1926.20(b)(4) standard in April 2007. This April 2007 citation became final
in February 2008.
                                   DISCUSSION
      Deep South contends in its petition that the Commission’s findings that
Deep South violated the general duty clause and § 1926.20(b)(4) are not
supported by substantial evidence. It also argues that the Commission’s finding
that the § 1926.20(b)(4) citation item was a repeat violation is not supported by
substantial evidence.
1. Standard of review
      We “review[] the Commission’s findings of fact to ensure they are
supported by substantial evidence in the record considered as a whole.” Chao v.
Occupational Safety & Health Review Comm’n, 401 F.3d 355, 362 (5th Cir. 2005)
(quotation marks and citation omitted). “Substantial evidence is ‘such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Id. (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 619-20
(1966)).
2. General duty clause violation
      To establish that an employer violated the general duty clause, “the
Secretary must demonstrate that (1) a condition or activity in the workplace
presented a hazard, (2) the employer or its industry recognized the hazard, (3)
the hazard was likely to cause death or serious physical harm, and (4) a feasible
and effective means existed to eliminate or materially reduce the hazard.” Otis
Elevator Co., 21 O.S.H. Cas. (BNA) 2204 (2007). The Secretary also must show
that “the employer knew or with the exercise of reasonable diligence could have
known of the hazardous condition.” Id. In this circuit, a supervisor’s knowledge

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is not imputed to his employer where the supervisor’s conduct is unforeseeable.
See W.G. Yates & Sons Constr. Co. Inc. v. Occupational Safety & Health Review
Comm’n, 459 F.3d 604, 608-09 (5th Cir. 2006).
      Deep South challenges the Commission’s finding that its failure to require
Aydell to ensure that Odom was qualified to operate the TC36000 presented a
hazard. Deep South argues that Odom’s experience with the VersaCrane
TC28000 and his lattice crawler crane certification, which included written
testing, qualified him as an operator-in-training, who, under industry safety
standards, could operate the TC36000 “under the direct supervision of a
designated, qualified operator,” such as Aydell. American Society of Mechanical
Engineers (“ASME”) B30.5, § 5-3.1.1(a)(2).      Deep South notes that Aydell
testified that he was in contact with Odom at all times and that Odom “did not
make a move without the direction, knowledge, and consent of Aydell.”
According to Deep South, this contact constitutes “direct supervision” of Odom,
so Odom was a qualified operator.
      The Secretary counters that substantial evidence showed that Aydell did
not ensure that Odom had taken the tests he needed to qualify even as an
operator-in-training, and that, in fact, Odom never had taken any practical
examination to test his skills on the TC36000. And the Secretary argues that
the evidence established that Odom’s written testing on the lattice crawler and
his operation of the TC28000 did not give him knowledge of or experience with
a crane that could be placed in a backwards overhaul position. Moreover, the
Secretary points out that even if Odom was a qualified operator-in-training,
Aydell testified that he allowed Odom to operate the TC36000 alone while Aydell
stood outside in an area from which he could not see that the crane was in an
overhaul position.    Therefore, the Secretary maintains that there was
substantial evidence that Aydell did not directly supervise Odom.



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      We agree with the Secretary.          Substantial evidence supports the
Commission’s finding that Deep South presented a hazard by failing to require
Aydell ensure that Odom was qualified to operate the TC36000. Although Odom
had taken tests and had experience on related cranes, the Commission
nonetheless could have reasonably concluded that those tests and experience,
which did not cover the danger of backwards overhaul, were insufficient to
qualify Odom as an operator-in-training on the TC36000. The Commission’s
finding that Aydell’s supervision of Odom’s operation of the crane was deficient
is also reasonable. Even if Odom told Aydell what he was doing as he operated
the crane, Aydell did not make sure that he could see that Odom was doing it
correctly. Aydell’s failure to do so led the Commission to reasonably conclude
that Aydell did not directly supervise Odom.
      Deep South also disputes the Commission’s determination that the
violation was foreseeable, since, Deep South argues, it gave Aydell specific
instructions to train Odom. The Secretary responds that the evidence shows
that, several weeks before the TC36000 was used at the worksite, Deep South
orally told Aydell to “familiarize” Odom with the TC36000. Deep South gave
Aydell no further instructions; in particular, it did not instruct Aydell to ensure
that Odom had passed the written and practical tests that would qualify Odom
to operate the crane.
      The evidence cited by the Secretary is sufficient to support the
Commission’s finding that the violation was foreseeable.            Deep South’s
instructions to Aydell were inadequate to make Aydell’s failure to ensure that
Odom had passed the requisite tests and had the necessary training
unforeseeable, because Deep South never told Aydell to check Odom’s
qualifications. They were also insufficient to make Aydell’s failure to directly
supervise Odom unforeseeable, because Deep South merely told Aydell to
familiarize Odom with the TC36000, not to directly supervise Odom whenever

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he was operating the crane. The Commission’s decision that the violation was
foreseeable by Deep South is supported by substantial evidence.
3. Section 1926.20(b)(4) violation
      Section 1926.20(b)(4) requires an employer to “permit only those
employees qualified by training or experience to operate equipment and
machinery.” Deep South challenges the Commission’s finding that Odom was
not qualified by either training or experience to operate the TC36000. Deep
South alleges that Odom’s certification on the lattice crawler crane qualified him
by training, and his operation of the TC28000 crane qualified him by experience,
to operate the TC36000. The Secretary replies that this training and experience
was insufficient to qualify Odom as a TC36000 operator because of the
distinguishing characteristics of the TC36000 crane. The Secretary points to
evidence that the lattice crawler certification requirements did not include either
testing or training on the risks of backwards overhaul or how to prevent it. The
Secretary also notes that Odom had less than a month of experience with the
TC28000 crane, and, during that time, the TC28000 operated by Odom was
never configured in such a way that it could have been placed in an overhaul
position. Moreover, he observes that Deep South’s own expert admitted that
Odom’s experience with the TC28000 served only as a “partial” qualification for
operating the TC36000, and that Odom was not qualified by experience to
operate the TC36000 without supervision.
      The Commission had before it substantial evidence to find that Odom was
not a qualified TC36000 operator, and Deep South does not contest the finding
that it permitted Odom to operate the crane. The Secretary presented evidence
that the TC36000 was significantly different from the cranes that Odom was
certified to operate or had operated. And Deep South’s expert conceded that
these differences required an operator to have different training or experience
in order to be qualified to operate the TC36000.            The Commission thus

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reasonably concluded that Deep South permitted an unqualified operator to
operate the TC36000, in violation of § 1926.20(b)(4).
      Deep South also challenges the Commission’s characterization of this
violation as a repeat violation. A violation is repeated if, at the time it occurred,
“there was a Commission final order against the same employer for a
substantially similar violation.” Bunge Corp. v. Sec’y of Labor, 638 F.2d 831, 837
(5th Cir. 1981) (quotation marks and citation omitted). The Secretary makes a
prima facie showing by establishing that “the prior and present citations are for
failure to comply with the same standard.” Id. An employer “may then rebut a
prima facie case involving the same general standard with evidence of the
dissimilarity of the conditions and hazards associated with these violations of
the same standard.” Id. (alterations, quotation marks, and citation omitted).
“[T]he principal factor to be considered in determining whether a violation is
repeated is whether the prior and instant violations resulted in substantially
similar hazards.” Stone Container Corp., 14 O.S.H. Cas. (BNA) 1757 (1990). For
violations of the same specific standard, “rebuttal may be difficult since the two
violations almost have to be substantially similar in nature in order to constitute
violations of the specific standard.” Bunge Corp., 638 F.2d at 837.
      OSHA issued Deep South a citation for violating § 1926.20(b)(4) that
became final in February 2008, four months before the present incident
occurred.   The Secretary thus established a prima facie case before the
Commission. Deep South attempts to rebut this showing by arguing that,
because the prior § 1926.20(b)(4) violation involved a different type of crane that
caused a different injury – a hydraulic boom crane that crushed an employee –
it was not substantially similar to the present § 1926.20(b)(4) violation. But, as
the Commission noted, both violations were caused by the same hazard: in each
case, Deep South failed to adequately train a crane operator.            There was
sufficient evidence for the Commission to reasonably find that, based on the fact

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that both violations involved the same specific standard and the same hazard,
the second violation was a repeat violation.
                               CONCLUSION
      The Commission’s decision was supported by substantial evidence. Deep
South’s petition is DENIED.




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