                                                                                    [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                  FILED
                            FOR THE ELEVENTH CIRCUIT                  U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                               ________________________                      NOV 22 2000
                                                                         THOMAS K. KAHN
                                                                              CLERK
                                     No. 99-11917
                               ________________________

                                 O.S.H.R.C. No. 98-00823

J.A.M. BUILDERS, INC.,

                                                                    Petitioner,

       versus


ALEXIS HERMAN, Secretary of Labor, and
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

                                                       Respondents.
                             __________________________

           Petition for Review of an Order of the Occupational Safety and
                             Health Review Commission
                           _________________________
                                (November 22, 2000)


Before CARNES and BARKETT, Circuit Judges, and POLLAK*, District Judge.

_______________________
*Honorable Louis H. Pollak, U.S. District Judge for the Eastern District of Pennsylvania, sitting
by designation.
BARKETT, Circuit Judge:
      J.A.M. Builders, Inc., (“J.A.M.”) petitions for review of a final decision of

the Occupational Safety and Health Review Commission (the “Commission”)

affirming the administrative law judge’s (“ALJ”) finding that it willfully violated a

safety regulation promulgated pursuant to the Occupational Safety and Health Act

(“OSHA”).

      J.A.M. was a subcontractor at a construction site in Miami Beach, Florida,

where an ironworker was killed by electrocution. After an investigation into the

fatality, the Secretary of the Department of Labor (the “Secretary”) issued a

citation and notice of a proposed penalty against J.A.M., alleging various

violations of OSHA safety standards. One of the charges alleged that J.A.M.

willfully violated a construction industry safety standard that prohibits an employer

from permitting its employees to work in such proximity to electrical power

circuits that they could come into contact with them, without taking adequate

precautions to protect employees from the risk of electric shock.

      On appeal, J.A.M. challenges the Commission’s decision that it willfully

violated this standard, arguing that the Commission’s decision is not supported by

substantial evidence and is not in accordance with the law. We review the

Commission’s findings of fact to determine whether they are supported by

substantial evidence on the record as a whole; if so, they are deemed conclusive.


                                          2
See 29 U.S.C. § 660(a); Niemand Indus., Inc. v. Reich, 73 F.3d 1083, 1084 (11th

Cir. 1996). “Substantial evidence is more than a scintilla and is such relevant

evidence as a reasonable person would accept as adequate to support a

conclusion.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). We also

review whether the Commission’s order is “in accordance with the law.” Reich v.

Trinity Indus., Inc., 16 F.3d 1149, 1152 (11th Cir. 1994).

       The safety standard at issue, 29 C.F.R. § 1926.416(a)(1), provides:

      No employer shall permit an employee to work in such proximity to
      any part of an electric power circuit that the employee could contact
      the electric power circuit in the course of work, unless the employee is
      protected against electric shock by de-energizing the circuit and
      grounding it or by guarding it effectively by insulation or other means.

OSHA differentiates among violations of varying severity. J.A.M was charged

with the most severe offense, to wit, a “willful” violation pursuant to 29 U.S.C. §

666(a), which is subject to the greatest penalties under the Act: a fine not less than

$5,000 and up to $70,000, and the possibility of imprisonment if the willful

violation causes an employee’s death. See 29 U.S.C. § 666(a), (e). See also

United States v. Ladish Malting Co., 135 F.3d 484, 490 (7th Cir. 1998)

(differentiating various offenses under 29 U.S.C. § 666).

      The ALJ upheld the citation, finding that J.A.M. failed to adequately protect

its employees working in proximity to energized electrical lines on November 5th


                                           3
through the 7th. The administrative record upon which the ALJ based his decision

reflects the following. J.A.M. Builders was hired by Brodson Construction

Company, the general contractor, to construct the shell of a three-story building.

The new structure, measuring 85 feet long by 17 feet wide, was an addition to an

existing building. At the time of the fatality, the structure stood approximately 20

feet tall.1 During the relevant time period, three energized, high-voltage electrical

lines, or primary conductors, carrying 7,620 volts of electricity each, ran parallel to

the building’s east side approximately 8-12 feet above the structure. These lines

were not insulated and were held up by one pole located at the northeast corner of

the building, 19 inches away from the east wall, and by another pole at the

southeast corner.

       After J.A.M. began its work on the building, company employees orally

informed Brodson that the high-voltage lines needed to be rerouted. Five days

before J.A.M. began working with steel on the third floor, J.A.M.’s project

manager additionally wrote Brodson that a Florida Power & Light Co. (“FP&L”)

representative had instructed J.A.M. that work would not be allowed to continue in

proximity to the lines unless they were moved, and requested Brodson to


       1
          The structure was located on a corner lot: the south side abutted the existing building,
the west side abutted another building, the east side faced an alley (across from which were
several buildings), and the north side faced the street.

                                                 4
“coordinate with [FP&L] to have these lines moved.” Before the ALJ, J.A.M.

took the position that notwithstanding its letter to Brodson, J.A.M. had fabricated

this story in order to shift blame to FP&L for any project delays.2 However,

Canute Lobean, a compliance officer for the Secretary, and John Jacob, an FP&L

claims agent, testified that the FP&L representative, Diego Borges, told them that

he had warned J.A.M. about working in proximity to the energized lines.

       On November 5, 1997, when J.A.M. began working with steel on the third

floor, the energized lines along the building’s east side had not been de-energized,

rerouted, moved, or insulated. Nonetheless, ironworkers working for J.A.M. began

hoisting narrow bars of reinforcing steel (“rebar”), measuring between 16-20 feet

long, from the ground level to the third floor, passing it through a second-floor

window and then through a four-foot by four-foot hole located between the second

and the third floors. The rebar was passed up length-wise, and was angled at a

forty-five degree angle opposite from the building’s east wall and away from the

energized lines, although it was tall enough that it could have touched the

energized lines had it been stood up and/or leaned toward the east wall. After the

rebar was lifted through the hole in the third floor, it was tied together on a 16-inch


       2
         The Secretary’s compliance officer also testified that J.A.M.’s president, John Bullis,
admitted that there were safety hazards at the construction site, but that it was Brodson’s
responsibility, not J.A.M.’s, to contact FP&L to have the lines rerouted.

                                                5
cinderblock, supported by a 4-inch piece of wood, to form an interlocking matting

of steel, which was then placed over a wood frame to form the base of the floor, or

deck, into which concrete would be poured. Rebar was also used by J.A.M. to

build the frame for horizontal and vertical support beams on the third floor. The

hole was closed on November 5 after J.A.M. thought it had finished its ironwork.

      On November 6, 1997, J.A.M. discovered that it needed more rebar and

began raising rebar to the third floor along the outside of the east wall. Under the

direction of Juan Carlos Diaz, J.A.M.’s foreman, the ironworkers passed rebar

length-wise directly from the ground level to the third floor, sometimes with the

assistance of a worker positioned at the second-floor window. However, all work

was stopped later that day by James Stowe, the ironworkers’ union foreman, after

he was informed by an electrician of the severe danger of working along the east

wall close to the energized lines.

      After Stowe stopped the work, J.A.M. management officials and

representatives for the ironworkers met. The J.A.M. officials testified that at this

meeting the parties agreed that the remaining rebar would be passed to the third

floor along the north wall, instead of the east wall above which the energized lines

were located. The ironworkers who attended the meeting testified that J.A.M. had

agreed to cut a new hole in the floor, so that the rebar could be passed through as it


                                          6
had been on November 5. It is undisputed that a new hole was not cut into the

floor.

         The next day, November 7, the ironworkers’ union substituted Larry

Williams as foreman for Stowe, whom J.A.M. had fired.3 Williams was instructed

by J.A.M. to pass the remaining rebar along the structure’s north side.

Notwithstanding these instructions, Williams and several ironworkers passed rebar

along the east side. Williams was standing on the third floor deck and was

receiving rebar from below when a 16-foot, 9-inch long piece of rebar he was

holding came into contact with one of the high-voltage lines. Williams was

electrocuted and died. Foreman Diaz testified that he was on site in J.A.M.’s

office when the accident occurred. Ironworker Miguel Doreus testified that Diaz

was at the site that day and that Diaz saw them working along the structure’s east

side.

         Based on evidence presented that J.A.M. knew of the hazard involved both

before work began and during construction of the structure’s third floor, the ALJ


         3
           The testimony reflects that J.A.M. felt that Stowe should not have stopped work on the
6th and attributed the work stoppage to “personality conflicts” between Stowe and J.A.M.’s
foreman. Stowe testified that, after he ordered the work stoppage, J.A.M.’s foreman told him that
“[he] had better look for [] a new job because [he] no longer [had] one.” Stowe testified that he
was allowed to finish work that day, but that he was not to report to the jobsite on November 7.
The union representative, David Gornewicz, and J.A.M.’s vice president, Bill Mack, also
testified that J.A.M and the ironworkers agreed that Stowe would be replaced by another
foreman on November 7.

                                               7
found that J.A.M. had a “heightened awareness of the hazardous conditions,” and

concluded that its violation over the three days was “willful.” The ALJ rejected

J.A.M.’s affirmative defense that Williams had committed employee misconduct,

reasoning that J.A.M. had not established work rules designed to prevent the

violation and had no written safety program. The ALJ observed:

      The deck was only 17 feet wide. The rebar was up to 20 feet long.
      The high voltage lines were 10 feet above the deck. . . . Walls of
      adjacent buildings abutted the west and south sides of the deck. Rebar
      lifted to the deck would, of necessity, come close to the energized
      lines. [J.A.M.] knew this long before the period of November 5,
      1997, through November 7, 1997. It took no action to eliminate the
      hazard or guard the energized lines. It continued to allow its
      employees to work in close proximity to this hazardous condition
      throughout this three-day period until one employee finally contacted
      the high voltage lines with rebar in the course of his work. . . .

      Allowing employees to continue to work from November 5, 1997,
      through November 7, 1997, with [a] heightened awareness [of the
      hazardous conditions] clearly indicates [J.A.M.’s] conscious disregard
      for the requirements of the Act and plain indifference to the safety of
      its employees. . . .

The ALJ assessed a $35,000 civil penalty for this violation. Because the

Commission declined J.A.M.’s request to review the ALJ’s decision, the ALJ’s

decision became the Commission’s final order. See 29 U.S.C. § 661(j).

                                  DISCUSSION

      J.A.M. preliminarily contends that the ALJ erred by admitting the out-of-

court statement of FP&L representative Diego Borges, that he had previously

                                         8
warned J.A.M. not to work in proximity to the energized lines running along the

structure’s east side. “Hearsay is admissible in administrative hearings and may

constitute substantial evidence if found reliable and credible.” Williams v. U.S.

Dep’t of Transp., 781 F.2d 1573, 1578 n.7 (11th Cir. 1986). We have identified

several factors that demonstrate hearsay’s probative value and reliability for

purposes of its admissibility in an administrative proceeding: whether (1) the

out-of-court declarant was not biased and had no interest in the result of the case;

(2) the opposing party could have obtained the information contained in the

hearsay before the hearing and could have subpoenaed the declarant; (3) the

information was not inconsistent on its face; and (4) the information has been

recognized by courts as inherently reliable. See U.S. Pipe & Foundry Co. v. Webb,

595 F.2d 264, 270 (5th Cir. 1979)4 (citing Richardson v. Perales, 402 U.S. 389,

402-06, 91 S.Ct. 1420, 1428-30, 28 L.Ed.2d 842 (1971)).

       Borges’ statement was recounted by Canute Lobean, the compliance officer,

and John Jacob, the FP&L claims agent who was not affiliated or employed by a

party to this case. Borges’ statement was not inconsistent on its face and was

consistent with other evidence presented, including J.A.M.’s own letter to Brodson


       4
           This Court has adopted as binding precedent all Fifth Circuit decisions handed down
prior to the close of business on September 30, 1981. See Bonner v. Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc).

                                               9
requesting that it contact FP&L to move the energized lines before J.A.M. began

using steel on the third floor. Because Borges’ out-of-court statement was

sufficiently reliable, we conclude that the ALJ did not err by admitting it into

evidence.

      J.A.M. next argues that substantial evidence does not support the

Commission’s finding that its violation was “willful” because, on each of the three

days in question, it used methods designed to adequately protect the ironworkers

from coming into contact with the energized lines.

      Although the term “willful” is not defined in the Act, this Court has held that

in its simplest form, a willful violation is “an intentional disregard of, or plain

indifference to, OSHA requirements.” Reich v. Trinity Industries, Inc., 16 F.3d

1149, 1152 (11th Cir. 1994) (quoting Georgia Elec. Co. v. Marshall, 595 F.2d 309,

318 (5th Cir. 1979)). The Court in Trinity reiterated the former Fifth Circuit’s

adoption of the Commission’s determination that a violation is “willful” if an

employer commits an act in either “intentional disregard of, or plain indifference

to, OSHA requirements.” Trinity Indus., 16 F.3d at 1152 (quoting Georgia Elec.

Co., 595 F.2d at 318). Under the Commission’s definition, to be deemed “willful,”

proof must be adduced either that (1) “[the] employer knew of an applicable

standard or provision prohibiting the conduct or condition and consciously


                                           10
disregarded the standard,” or (2) that, if the employer did not know of an

applicable standard or provision’s requirements, it exhibited such “reckless

disregard for employee safety or the requirements of the law generally that one can

infer that . . . the employer would not have cared that the conduct or conditions

violated [the standard].” Secretary of Labor v. Williams Enter., Inc., 13 O.S.H.

Cas. 1249, 1257 (BNA) (O.S.H.R.C. 1987). See also Trinity Indus., 16 F.3d at

1152-55 (holding that employer committed willful violation because it knew of the

standard but decided not to comply, despite employer’s good faith belief that its

own approach provided protection at least equivalent to OSHA’s requirements);

Valdak Corp. v. Occupational Safety & Health Review Comm’n, 73 F.3d 1466,

1469 (8th Cir. 1996) (holding that an employer who “substitutes his own judgment

for the requirement of a standard or fails to correct a known hazard commits a

willful violation even if the employer does so in good faith”); Brock v. Morello

Bros. Constr., Inc., 809 F.2d 161, 164-66 (1st Cir. 1987) (holding that “an act may

be willful if the offender shows indifference to the [law]; he need not be

consciously aware that the conduct is forbidden . . ., but his state of mind must be

such that, if he were informed of the rule, he would not care”). Cf. McLaughlin v.

Union Oil Co. of California, 869 F.2d 1039, 1047 (7th Cir. 1989) (setting aside




                                         11
willful violation because no evidence was presented that employer was “reckless,”

“grossly negligent,” or “more than careless”).

        After closely reviewing the administrative record and the parties’ briefs, and

after hearing oral argument, we conclude that substantial evidence supports the

Commission’s determination that J.A.M. willfully violated the standard. The

record reflects that J.A.M. required its employees to work in dangerous proximity

to energized electrical lines. Although J.A.M. does not deny knowing that the

working conditions were hazardous and that the safety standard at issue applied, it

failed to have the live wires de-energized, rerouted, moved, or insulated, doing

essentially nothing to eliminate the risk of electrical shock to its workers. J.A.M.’s

attempt to minimize the hazard by directing that the rebar be raised on the 17-foot

wide north side of the building, where the high voltage lines only crossed over one

corner, and blaming Larry Williams for disregarding its directions, does not

adequately refute the evidence that J.A.M. consciously disregarded the standard or

exhibited such “reckless disregard for employee safety or the requirements of the

law generally that one can infer that . . . the employer would not have cared that the

conduct or conditions violated [the standard].” Williams Enter., 13 O.S.H. Cas. at

1257.




                                           12
      Indeed, we find this case similar to Georgia Electric Co., 595 F.2d 309 (5th

Cir. 1979), where a utility company was cited for willfully violating a highway

construction safety standard that prohibits the operation of a crane within ten feet

of an energized electrical line. A worker was electrocuted when the steel light pole

that he was attempting to erect came into contact with an energized line. The

company’s foreman, knowing of the hazard involved, nonetheless allowed the

worker’s crew to attempt to erect the pole. The Court, noting that the employer

had failed to take steps to acquaint its supervisory personnel with the requirements

of the standard, despite knowing of “its obligation to conform to the Act,” affirmed

the citation, finding that the employer was indifferent to OSHA’s requirements and

exhibited “disregard for the safety of its employees.” Id. at 319-20. The Court

rejected the employer’s argument that, by instructing its employees to use their

“common sense” and not get “too close” to the energized lines, it established

adequate work safety rules. Id. at 320; see Central Soya De Puerto Rico, Inc., v.

Secretary of Labor, 653 F.2d 38, 39-40 (1st Cir. 1981) (holding that employer that

failed to repair a highly corroded grain tower, from which an employee fell, a

highly dangerous condition known to supervisory personnel, consciously

disregarded OSHA’s requirements and showed “[a] degree of indifference to the

requirements of the law” sufficient to establish a willful violation); Kent Nowlin


                                          13
Constr. Co., Inc. v. Occupational Safety & Health Review Comm’n, 648 F.2d

1278, 1280-81 (10th Cir. 1981) (holding that, where employer’s supervisory

personnel knew of hazard involved in using crane within ten feet of electrical lines,

but nonetheless decided to proceed and subject its employees to danger of

electrocution, employer acted with plain indifference to OSHA’s

requirements); F.X. Messina Constr. Corp v. Occupational Safety & Health

Review Comm’n, 505 F.2d 701, 702 (1st Cir. 1974) (holding that employer that

had “obvious” knowledge of trenching standard’s requirements but failed to

comply, making “private determination that . . . [failing to comply] would not be

dangerous,” acted with intentional disregard of OSHA’s requirements). Cf.

Morello Bros. Constr., 809 F.2d at 164 (holding that employer’s failure to comply

fully with applicable safety standards did not create such an “obviously unsafe”

hazard to experienced employees working on roof within sight of a safety monitor

as to constitute a willful violation).

      Substantial evidence supports the finding that raising the rebar to the north

side of the building was not appreciably less dangerous than raising it to the east

side. Indeed, as the ALJ noted, it was not particularly safe to use the hole in the

floor method, as the 20-foot rebar could still have come in contact with the

energized lines. Moreover, J.A.M., which had no written safety program and


                                          14
initially required its employees to raise rebar on what it now recognizes as the

more dangerous east side, did not make even a minimal effort to address the

problem until ironworking foreman James Stowe refused to endanger the workers

further and halted work on that side of the structure. Even at that point, J.A.M.

expressed no concern about safety. Indeed, Diaz was so angry about the work

stoppage that he threatened not to pay Stowe if he did not go back to work. Stowe

was ultimately dismissed for his efforts.

      Furthermore, J.A.M.’s attempts to place the blame for its willfulness on the

ironworkers, particularly on Larry Williams, is contrary both to the law and to the

ALJ’s findings of fact. Even if J.A.M. believed, in good faith, that the ironworkers

had the skill and the experience to avoid the electrical hazards, that would not

excuse J.A.M.’s intentional disregard of and plain indifference to its own duties

under OSHA. See Trinity Indus., 16 F.3d at 1153; Georgia Elec. Co., 595 F.2d at

320. See also Western Waterproofing Co., Inc. v. Marshall, 576 F.2d 139, 143

(8th Cir. 1978) (rejecting employer’s argument that willfulness was negated

because it unilaterally determined that compliance was not necessary). J.A.M.’s

arguments about what the ironworkers themselves believed about the danger are

simply irrelevant. As the ALJ pointed out, J.A.M.’s alleged reliance on the

ironworkers’ “experience” was misplaced because “[w]hile these employees may


                                            15
be experienced ironworkers, they are not necessarily experienced in work near

power lines and electricity.” See Floyd S. Pike Elec. Contractor, Inc. v.

Occupational Safety & Health Review Comm’n, 576 F.2d 72, 76-77 (5th Cir.

1978) (holding that employer improperly relied on “inexperienced working

foreman [] in charge of an inexperienced crew” to comply with trenching

regulation, thus defeating employee misconduct defense); see also Mineral Indus.

& Heavy Constr. Group v. Occupational Safety & Health Review Comm’n, 639

F.2d 1289, 1295 (5th Cir. Unit A March 1981) (rejecting employee misconduct

defense based on employer’s “common sense” approach to safety); Georgia Elec.

Co., 595 F.2d at 320 (same).

      In light of J.A.M.’s clear acknowledgment of the extreme danger posed by

the exposed lines to its employees, evidence of its cavalier attitude to the

possibility of serious injury, including death, and its failure to provide a safe

method of delivering or handling rebar to avoid contact with the energized lines,

we conclude that substantial evidence supports the conclusion of the ALJ that

J.A.M. acted willfully under either the “intentional disregard” or “plain




                                           16
indifference” prongs of the Georgia Electric Co. standard. Accordingly, we DENY

J.A.M.’s petition for review and AFFIRM the Commission’s decision.5

       AFFIRMED.




       5
          Finally, J.A.M. argues that because the citation did not charge it with violating the
standard on November 5th or 6th, and the Secretary was prohibited by the statute’s six-month
statute of limitations from citing it for these days, the ALJ’s decision is not in accordance with
the law. See 29 U.S.C. § 658(c) (“No citation may be issued under this section after the
expiration of six months following the occurrence of any violation.”). These claims are without
merit. The citation specifically alleged that “[o]n or about 11/07/97,” J.A.M. willfully violated
the standard, and the record plainly reflects that OSHA’s citation was issued on April 29, 1998,
well before the expiration of the limitations period.

                                                17
POLLAK, District Judge, dissenting:

      I agree with the court’s careful legal analysis, and I substantially concur in

the court’s narration of the facts. But I do not agree with the court’s application of

the law to the facts. Therefore I respectfully dissent.

      The Occupational Safety and Health Act (OSHA) contemplates three grades

of violations of the statute and its attendant regulations – “willful”; “serious”; and

“not . . . of a serious nature.” 29 U.S.C. § 666. An employer who is found by the

Occupational Safety and Health Review Commission (“the Commission”), after a

hearing before an administrative law judge, to have committed a violation which is

“not . . . of a serious nature” may be assessed a civil penalty in an amount not to

exceed $7,000. 29 U.S.C. § 666 (c). The maximum civil penalty for a “serious”

violation is also $7,000, but assessment of a civil penalty of some amount is

obligatory. 29 U.S.C. § 666(b). A “willful” violation calls for a civil penalty of

from $5,000 to $70,000. 29 U.S. C. § 666(a). When a “willful” violation causes

the death of an employee, the employer is subject to criminal prosecution, with a

maximum sentence of six months’ incarceration and a fine of $10,000, or a

maximum sentence of one year’s incarceration and a $20,000 fine for a subsequent

conviction. 29 U.S.C. § 666(e).




                                          18
      OSHA defines a “serious” violation as one where “there is a substantial

probability that death or serious physical harm could result . . . 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). The statute does not define the

more flagrant “willful” violation. As the court points out, in this Circuit the

governing case law definition of “willful” violation is that articulated for the Fifth

Circuit by Judge Brown in Georgia Electric Co. v. Marshall, 595 F.2d 309, 318 (5th

Cir. 1979) and carried forward in Reich v. Trinity Industries, Inc., 16 F.3d 1149,

1152 (11th Cir. 1994): – “intentional disregard of, or plain indifference to, OSHA

requirements.”

      The court today sustains the conclusion of an administrative law judge,

adopted by the Commission, that in the case at bar the employer, J.A.M.,

committed a “willful” violation of OSHA. The record made before the

administrative law judge establishes that J.A.M.’s supervision of the work site was

bumbling and, at times, incoherent. The record unquestionably supports a

determination that J.A.M. violated the applicable OSHA regulation – and would, in

my judgment, support a characterization of the violation as “serious.” But I do not

find in that record substantial evidence of “intentional disregard for, or plain




                                          19
indifference to, OSHA requirements” – the hallmark of a “willful” violation. For

this reason I part company with my colleagues.

      The OSHA regulation that J.A.M. was charged with violating is 29 C.F.R. §

1926.416(a)(1):

             No employer shall permit an employee to work in such
             proximity to any part of an electric power circuit that the
             employee could contact the electric power circuit in the
             course of work, unless the employee is protected against
             electric shock by deenergizing the circuit and grounding
             it or by guarding it effectively by insulation or other
             means.

      The regulation is one which calls on the employer to exercise judgment: – is

the work site one in which an employee must “work in such proximity to any part

of an electric power circuit that the employee could contact the electric power

circuit in the course of work”?

      On November 5, 1997, J.A.M.’s ironworkers began moving bars of rebar

from the first to the third story of the three-story structure. What made this a

problematic enterprise was the presence, along the structure’s east wall, of

energized power lines strung about ten feet above the third story. To avoid the

power lines, the rebar was, as the court explains, “pass[ed] . . . through a second-

floor window and then through a four-foot hole located between the second and

third floor. The rebar was passed up length-wise, and was angled at a forty-five


                                          20
degree angle opposite from the building’s east wall and away from the energized

lines, although it was tall enough that it could have touched the energized lines had

it been stood up and/or leaned toward the east wall.”

      The operation having apparently been completed on November 5, the hole

was closed.

      The next day – November 6 – when it became apparent that more rebar was

required on the third floor, the movement of rebar resumed. But this time, with the

hole closed, the rebar was, as the court explains, “rais[ed] to the third floor along

the outside of the east wall” – a very risky maneuver which, as the court notes,

came to a halt when “the ironworkers’ union foreman . . . was informed by an

electrician of the severe danger of working along the east wall close to the

energized lines.” This precipitated a meeting of management officials and union

representatives. There is, to be sure, disagreement as to what course of action was

agreed upon – passing rebar up the north wall (the J.A.M. understanding) or

cutting a new hole between the second and third floors (the union understanding).

The one thing that the disagreement plainly establishes is that management and

union alike recognized that the rebar which was still to be raised to the third floor

should not be passed up the east wall. Carlos Diaz, J.A.M.’s job superintendent,

then ordered a carpenter to take rebar that was stacked on the east side of the


                                          21
structure and move it to the north side (presumably, in anticipation of its being

raised to the third floor).

       On the following day – November 7 – the raising of rebar to the third floor

was to resume. Diaz directed foreman Larry Williams to pass rebar up the north

side. But Williams did not follow Diaz’s directions. Williams and his crew raised

rebar up the east side. And Williams died.

       The court “find[s] this case similar to Georgia Electric Co.” – the case in

which the Fifth Circuit defined OSHA willfulness as “intentional disregard of, or

plain indifference to, OSHA requirements.” In arguing that the two cases are

“similar” the court points out that in Georgia Electric:

              a utility company was cited for willfully violating a
              highway construction safety standard that prohibits the
              operation of a crane within ten feet of an energized
              electrical line. A worker was electrocuted when the steel
              light pole that he was attempting to erect came into
              contact with an energized line. The company’s foreman,
              knowing of the hazard involved, nonetheless allowed the
              worker’s crew to attempt to erect the pole. The Court,
              noting that the employer had failed to take steps to
              acquaint its supervisory personnel with the requirements
              of the standard, despite knowing of “its obligation to
              conform to the act,” affirmed the citation, finding that the
              employer was indifferent to OSHA’s requirements and
              exhibited “disregard for the safety of its employees.” Id.
              at 319-20. The Court rejected the employer’s argument
              that, by instructing its employees to use their “common
              sense” and not get “too close” to the energized lines, it
              established adequate work safety rules.

                                           22
      Georgia Electric’s definition of willfulness is binding law for this court.

And the finding of willfulness sustained by Judge Brown and his colleagues was,

so it seems to me, a proper application of that binding legal rule to the facts of

record in Georgia Electric. But, with all respect, I do not think the facts yielding a

finding of willfulness in Georgia Electric are “similar” to the facts in the case at

bar. In the case at bar the applicable OSHA regulation – 29 C.F.R. §

1926.416(a)(1) – is a generalized admonition:

             No employer shall permit an employee to work in such
             proximity to any part of an electric power circuit that the
             employee could contact the electric power circuit in the
             course of work . . .

By contrast, the OSHA regulation at issue in Georgia Electric – 29 C.F.R. §

1926.550(a)(15) – was a flat directive as to the space to be maintained between

power lines and machinery or equipment:

             For lines rated 50 kV. or below, minimum clearance
             between the lines and any part of the crane or load shall
             be 10 feet . . .

There was no room for doubt as to the meaning, or the applicability to any given

scenario, of the regulation. However, as Judge Brown explained, “[d]espite its

awareness of its obligation to conform to the Act and regulations promulgated

thereunder, the Company never made any effort to acquaint its supervisory

personnel with the OSHA standards. Not one employee with responsibility for the

                                          23
Highway No. 82 project was aware of the minimum distance requirements of §

1926.550(a)(15).” 595 F.2d at 319. Given the substantial difference between the

applicable regulations, together with the fact that in the case at bar the tragic death

of Larry Williams resulted from his ignoring the employer’s express instructions, I

suggest that what the court perceives as similarity between the willfulness issue in

Georgia Electric and the willfulness issue in the case at bar is illusory. There is, in

my judgment, less similarity here than meets the eye.

      However, there is another aspect of Georgia Electric which seems to me

remarkably similar to the present case. In carefully detailing the events that

preceded the fatal accident of July 10, 1974 at issue in Georgia Electric, Judge

Brown pointed out that the OSHA regulation the company was found to have

violated – 29 C.F.R. § 1926.550(a)(15) – was included in “a copy of the OSHA

safety and health regulations for the construction industry,” 595 F.2d at 313, that

had been furnished to the employer in April of 1974, approximately three months

before the July 10, 1974 accident. Judge Brown explained:

             The material was supplied as part of an OSHA
             investigation of an electrocution that occurred on April 8,
             1974, at a Company work site in Albany, Georgia. As a
             result of that investigation, the Company was cited for
             allowing an employee to work too near an electric power
             circuit that had not been de-energized or otherwise
             guarded. The Company was charged with a serious


                                           24
               violation of [29] C.F.R. § 1926.400(c)(1). The charge
               was uncontested, and the Company paid a $500 fine.
Id.
       29 C.F.R. § 1926.400(c)(1) was the lineal ancestor of 29 C.F.R. §

1926.416(a)(1), the regulation at issue in the present case.6 In the context of

Georgia Pacific, the Commission adjudged the employer guilty of a “serious”

violation for, as Judge Brown put it, “allowing an employee to work too near an

electric power circuit” – a “serious” violation that led to an employee’s

electrocution. In the case we are considering today, the record amply supports a

finding that on November 6, 1997 (the second of the three days, when rebar was

“rais[ed] to the third floor along the outside of the east wall”) the employer (to

transpose to the present case Judge Brown’s words in Georgia Electric) “allow[ed

employees] to work too near an electric power circuit” – a finding, which,

compatibly with the Commission’s assessment of Georgia Pacific’s April 8, 1974

misconduct, would surely warrant citation for a “serious” violation.7 On

       6
          In addition to the renumbering, there were certain non-substantive verbal changes. The
former regulation directed that “[n]o employer shall permit an employee to work in such
proximity to any part of an electric power circuit that he may contact the same in the course of
his work unless the employee is protected against electric shock by deenergizing the circuit and
grounding it or by guarding it by effective insulation or other means.” The present regulation
has been rendered genderly neutral through (a) the substitution of “the employee” for “he” and
(b) the deletion of “his;” in addition, “could” has replaced “may,” and “by effective insulation or
other means” has become “effectively by insulation or other means.”
       7
          Lest there be any misunderstanding, I am not arguing that the Fifth Circuit endorsed the
Commission’s determination that this earlier dereliction was a “serious” (rather than a “willful”)
violation. As Judge Brown’s opinion makes plain, Georgia Electric did not challenge the

                                                25
November 7, 1997 – the next day – foreman Larry Williams was electrocuted when

he had his crew pass rebar up the east wall rather than the north wall – but this

tragic event came about because Williams acted in direct contravention of his

employer’s instructions. I suppose it is arguable that J.A.M.’s failure to monitor

the November 7 conduct sufficiently to prevent the tragedy could be deemed a

“serious” violation. But not a “willful” one.

       I conclude that the evidence before the administrative law judge does not

support a finding that J.A.M.’s violation of 29 C.F.R. § 1926.416(a)(1) was

“willful.” I am fortified in this conclusion by the fact that, pursuant to the statute, a

“willful” OSHA violation that causes the death of an employee gives rise to

criminal liability. 29 U.S.C. § 666(e). I am confident that the Congress which

crafted OSHA would have viewed J.A.M.’s makeshift methods of raising the rebar

with strong disapproval. But I see no reason to suppose that the OSHA Congress

would have contemplated that its strong disapproval could be ratcheted up, via an

administrative assessment affirmed by a federal court, to a level of malfeasance

that constitutes a crime.

       Accordingly, I dissent.




“serious” citation, so its correctness was not before the Fifth Circuit.

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