 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.
