Case: 19-60745        Document: 00515514520             Page: 1      Date Filed: 08/04/2020




             United States Court of Appeals
                  for the Fifth Circuit
                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit

                                                                                        FILED
                                                                                   August 4, 2020
                                     No. 19-60745                                  Lyle W. Cayce
                                                                                        Clerk

 TNT Crane & Rigging, Incorporated,

                                                                              Petitioner,

                                          versus

 Occupational Safety and Health Review Commission;
 Eugene Scalia, Secretary, U.S. Department of Labor,

                                                                           Respondents.



                  On Petition for Review of an Order of the
              Occupational Safety and Health Review Commission
                            OSHRC NO. 17-1872


 Before STEWART, CLEMENT, and COSTA, Circuit Judges.
 PER CURIAM:*
         The Occupational Safety and Health Administration (OSHA) issued
 TNT Crane & Rigging, Inc. a citation for violating a regulation promulgated
 under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–78.



         *
          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 not be published and is not precedent except under the limited circumstances set forth in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. 19-60745




 TNT contested the citation. After a trial, an administrative law judge
 affirmed the citation and the recommended penalty. The Occupational
 Safety and Health Review Commission declined review, which made the
 administrative law judge’s decision final. TNT filed a petition for review in
 this court. We deny the petition.
                                        I.
        The parties agree on all the relevant facts. Walmart hired Better Built
 Enterprises as the general contractor to install new air conditioners on the
 roof of its Corpus Christi, Texas store. TNT Crane & Rigging, Inc. was a
 subcontractor that provided crane services for this job. On the second night
 of the job, TNT’s 265-ton crane was loaded with 119,000 pounds of
 counterweights, had a “jib” attached—which extended the crane’s reach—
 and had its four outriggers halfway extended onto Walmart’s asphalt parking
 lot and concrete sidewalk. The crane manufacturer’s specifications prohibit
 using the crane in this configuration without supporting materials under the
 outriggers. TNT’s Standard Operating Procedure for Cranes similarly
 requires that these outriggers have supporting materials under them when
 the crane is making lifts: “Steel plates, pads or timber mats shall be used
 under the outriggers of all cranes no exceptions.” But TNT policy also states
 that a crane can be used to set its own mats if “the crane is on stable ground.”
 These mats help to stabilize the crane by distributing the weight of the
 outrigger feet over a larger surface area. TNT’s crane operator attempted to
 use the crane to lift and set these steel mats under its own outriggers. That
 attempt ended poorly.
        When the crane operator swung the crane around to pick up a steel
 mat, one of the outriggers punctured the concrete and the crane tipped over.
 The crane operator exited the crane and was seriously injured when the ball
 of the crane hit him.




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        OSHA investigated the accident and issued TNT a citation for a
 serious violation of the OSHA Ground Conditions Standard, 29 C.F.R.
 § 1926.1402(b). The citation stated: “On or about March 23, 2017, at this
 location, the employer did not ensure that equipment was assembled and/or
 operated on ground that could support the mobile crane structure.” This was
 an alleged violation of paragraph (b) of the Ground Conditions Standard,
 which requires that
        [t]he equipment must not be assembled or used unless ground
        conditions are firm, drained, and graded to a sufficient extent
        so that, in conjunction (if necessary) with the use of supporting
        materials, the equipment manufacturer’s specifications for
        adequate support and degree of level of the equipment are met.
        The requirement for the ground to be drained does not apply
        to marshes/wetlands.
 Id. § 1926.1402(b). OSHA proposed a $12,675 penalty for the citation. TNT
 contested the citation and sought review by the Occupational Safety and
 Health Review Commission. See 29 U.S.C. § 659(a).
        After a two-day trial before an administrative law judge, the judge
 found that TNT failed to provide adequate support for the crane according
 to the manufacturer’s specifications and, therefore, affirmed the citation and
 penalty. See id. § 661(j). TNT petitioned the Commission for discretionary
 review, but the Commission declined review and issued a Notice of Final
 Order that made the administrative law judge’s decision final. See id. TNT
 now seeks review of that final order in this court. See id. § 660(a).
                                        II.
        The administrative law judge’s decision was the Commission’s final
 decision, so that is the decision we review on appeal. Austin Indus. Specialty
 Servs., L.P. v. Occupational Safety & Health Review Comm’n, 765 F.3d 434,
 438–39 (5th Cir. 2014) (per curiam). We accept the administrative law




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 judge’s factual findings as “conclusive” if they are supported by substantial
 evidence. 29 U.S.C. § 660(a). Evidence is “substantial” if “a reasonable
 mind might accept [it] as adequate to support a conclusion.” Consolo v. Fed.
 Mar. Comm’n, 383 U.S. 607, 620 (1966) (quoting Consol. Edison Co. of N.Y.
 v. NLRB, 305 U.S. 197, 229 (1938)). And we accept that judge’s legal
 conclusions unless they are “arbitrary, capricious, an abuse of discretion, or
 otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
                                      III.
                                      A.
        The Secretary of Labor has delegated his authority and responsibility
 for administering the Occupational Safety and Health Act of 1970 to the
 Assistant Secretary for Occupational Safety and Health. 77 Fed. Reg. 3912
 (Jan. 25, 2012). OSHA is therefore responsible for conducting investigations
 and issuing citations for violations of safety standards promulgated under the
 Act. See 29 U.S.C. §§ 657, 658. To issue a citation, OSHA “must show by a
 preponderance of the evidence: (1) that the cited standard applies; (2)
 noncompliance with the cited standard; (3) access or exposure to the
 violative conditions; and (4) that the employer had actual or constructive
 knowledge of the conditions through the exercise of reasonable due
 diligence.” Sanderson Farms, Inc. v. Perez, 811 F.3d 730, 735 (5th Cir. 2016).
 TNT argues that the administrative law judge erred in finding that OSHA
 proved any of these elements. We disagree.
                                       1.
        TNT argues that the administrative law judge’s finding that 29 C.F.R.
 § 1926.1402(b) applied was an abuse of discretion. Under paragraph (b) of
 that section, equipment cannot be “assembled or used unless ground
 conditions are firm, drained, and graded to a sufficient extent so that, in
 conjunction (if necessary) with the use of supporting materials, the




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 equipment manufacturer’s specifications for adequate support and degree of
 level of the equipment are met.” 29 C.F.R. § 1926.1402(b). Paragraph (c)(1)
 of that section requires that the controlling entity “[e]nsure that ground
 preparations necessary to meet the requirements in paragraph (b) of this
 section are provided.” Id. § 1926.1402(c)(1).
        TNT argues that paragraph (b)’s safety standard applies only to the
 controlling entity, Better Built Enterprises. TNT seems to believe that
 paragraph (c)(1) requires that the controlling entity provide the necessary
 ground preparations, but paragraph (b) imposes upon the equipment
 operator, TNT, no obligation to use them. That would make paragraph (b)’s
 conditional prohibition against assembling or using equipment at best
 toothless and at worst surplusage. This argument is meritless. Paragraphs (b)
 and (c)(1) list distinct violations. Paragraph (b) prohibits equipment from
 being assembled or used unless certain conditions are met. Paragraph (c)(1)
 requires that the controlling entity provide necessary ground preparations.
 And paragraph (c)(2) countenances that the controlling entity in paragraph
 (c)(1) might not be the equipment user in paragraph (b)—paragraph (c)(2)
 requires the controlling entity to “[i]nform the user of the equipment and the
 operator of the location of hazards beneath the equipment set-up area.” Id.
 § 1926.1402(c)(2). Paragraph (b) therefore clearly imposes a duty on those
 who assemble and use equipment whether they are the controlling entity or
 not. TNT was responsible for assembling and using the crane. Thus,
 paragraph (b)’s standard applies to TNT.
                                       2.
        TNT argues that the administrative law judge’s finding that the
 standard was violated wasn’t supported by substantial evidence. Paragraph
 (b) prohibits the assembly or use of equipment unless ground conditions,
 including supporting materials, if necessary, can support the equipment. Id.




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 § 1926.1402(b). Per the crane manufacturer’s specifications, supporting
 materials were necessary. TNT failed to use those materials. As a result, the
 administrative law judge found that the ground conditions did not meet the
 manufacturer’s specifications; therefore, TNT violated paragraph (b)’s
 standard.
        TNT’s argument that this finding was error is premised on its
 interpretation of what constitutes the “ground conditions.” TNT claims that
 the “ground conditions” standard requires only that the ground be
 sufficiently firm, drained, and graded. Using the crane without supporting
 materials violates a different standard: 29 C.F.R. § 1926.1404(h)(2). This,
 TNT reasons, means that the failure to use supporting materials is not
 evidence of a “ground conditions” violation. As the administrative law judge
 notes, however, that section doesn’t apply here.
        Section 1926.1404(h)(2) applies to “assembly and disassembly
 operations.” See id. § 1926.1404. TNT admitted that this accident didn’t
 occur during assembly. The administrative law judge therefore correctly
 rejected TNT’s argument that section 1926.1404(h)(2) applies. Indeed, even
 if it applied, TNT fails to show that this standard and paragraph (b)’s
 standard are mutually exclusive grounds for a citation.
        Moreover, paragraph (b)’s standard isn’t limited to only whether the
 ground is firm, drained, and graded. TNT claims that failing to use
 supporting materials—even when they are necessary to meet the crane
 manufacturer’s specifications—isn’t a violation of the standard. That is,
 TNT could have met the manufacturer’s specifications had it used the
 supporting materials, so whether TNT used them is irrelevant for this
 standard. But as the administrative law judge correctly pointed out, the
 standard states that the “equipment must not be assembled or used
 unless . . . the equipment manufacturer’s specifications for adequate support




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 and degree of level of the equipment are met.” Id. § 1926.1402(b) (emphasis
 added). The administrative law judge therefore correctly concluded that
 TNT had to actually meet these specifications. Because the supporting
 materials were necessary to meet the crane manufacturer’s specifications yet
 weren’t used—neither of which are disputed—the administrative law
 judge’s finding that this failure violated the standard was supported by
 substantial evidence.
                                       3.
        TNT argues that the administrative law judge’s finding that a hazard
 existed was an abuse of discretion and wasn’t supported by substantial
 evidence. This argument is similarly premised on TNT’s interpretation of
 “ground conditions” as referring only to firmness, drainage, and grade.
 Because the administrative law judge’s contrary interpretation wasn’t error,
 this argument likewise fails. OSHA must find that a hazard exists “before
 issuing a standard,” so OSHA “is not ordinarily required to prove the
 existence of a hazard each time a standard is enforced.” Sanderson Farms, 811
 F.3d at 735. The existence of a hazard is, therefore, “generally presumed in
 safety standards unless the regulation requires [OSHA] to prove it.” Id. The
 standard here doesn’t require proof of a hazard. And as already explained,
 the administrative law judge didn’t err in finding a violation. Thus, the
 administrative law judge didn’t abuse his discretion, nor was his decision
 without support from substantial evidence, by finding that a hazard was
 presumed here.
                                       4.
        TNT argues that the administrative law judge’s finding that TNT had
 knowledge of the hazard was an abuse of discretion and wasn’t supported by
 substantial evidence. The Act doesn’t impose strict liability on employers for
 all of its employees’ acts. See W.G. Yates & Sons Constr. Co v. Occupational




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 Safety & Health Review Comm’n, 459 F.3d 604, 606 (5th Cir. 2006). An
 employer is liable for an employee’s serious violation of the Act only if the
 employer knew or through “the exercise of reasonable diligence” should
 have “know[n] of the presence of the violation.” 29 U.S.C. § 666(k). TNT
 does not argue that the administrative law judge erred in finding that this was
 a serious violation, and no party claims that TNT had actual knowledge of
 the violation. Instead, TNT claims that the crane operator was not a
 supervisor and, even if he was, that his knowledge can’t be imputed to TNT.
        Whether someone is a supervisor depends primarily on the substance
 of his delegated authority, not his title. Iowa S. Utils. Co., 5 O.S.H. Cas.
 (BNA) 1138 (March 15, 1977). The administrative law judge found that the
 crane operator was a supervisor because he was the on-site “competent
 person” and was responsible for making sure TNT’s crew worked safely and
 conformed with the Act. Competent person “means one who is capable of
 identifying existing and predictable hazards in the surroundings or working
 conditions which are unsanitary, hazardous, or dangerous to employees, and
 who has authorization to take prompt corrective measures to eliminate
 them.” 29 C.F.R. § 1926.1401. The administrative law judge noted that the
 crane operator did a walkthrough with the general contractor and
 subcontractors to inspect where the crane would be set up, supervised the
 crane’s assembly, and completed several forms for this job on TNT’s behalf.
 Moreover, two employees testified that the crane operator was the supervisor
 here: one stated that TNT tells its employees that, unless another supervisor
 is present, the crane operator is who is in charge of and responsible for the
 job; the other stated that he worked under the crane operator, who controlled
 everything the night of the accident. Given the crane operator’s substantive
 delegated duties—he was authorized to correct unsafe working conditions,
 supervised the crane’s assembly, filled-out forms on TNT’s behalf, and was
 recognized by other employees as being in charge of this job—the




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 administrative law judge did not err in finding that the crane operator was a
 supervisor at the time of the violation. The remaining issue, then, is whether
 his knowledge can be imputed to TNT.
          An employer is usually liable for a supervisor’s actual or constructive
 knowledge of conduct or of a condition that violates an OSHA standard.
 W.G. Yates, 459 F.3d at 607. But when the violation is the supervisor’s own
 misconduct, an employer is liable only if the violation was foreseeable. Id. at
 609. We have held that at least one way a violation can be unforeseeable is if
 the employer’s safety policy, training, and discipline are sufficient so as to
 make the violation unforeseeable. See Horne Plumbing & Heating Co. v.
 Occupational Safety & Health Review Comm’n, 528 F.2d 564, 570–71 (5th Cir.
 1976).
          The administrative law judge found that the crane operator’s actions
 were foreseeable for two separate reasons: (1) the rules for using a crane with
 supporting materials contradicted each other and were insufficiently
 descriptive, and (2) TNT’s policy for audit and supervision were insufficient
 to identify and remedy violations like the one here. We agree that the first
 reason was sufficient for finding that the crane operator’s violation was
 foreseeable. We therefore do not reach the second reason.
          The administrative law judge correctly pointed out that TNT’s
 Standard Operating Procedure for Cranes has two seemingly contradictory
 rules. The first rule states that “[s]teel plates, pads, or timber mats shall be
 used under the outriggers of all cranes no exceptions,” yet the rule
 immediately after it states that “[i]n the event that the crane is on stable
 ground it is permissible to utilize the crane to place plates and mats only.”
 That is, the second rule appears to be an exception to a rule that explicitly
 states “no exceptions.” TNT’s Vice President of Health, Safety, and
 Environmental admitted that these rules were poorly written and attempted




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  to clarify this contradiction without much success. He stated that these rules
  apply to lifting mode and set-up mode, respectively, but admitted that those
  are just descriptions of the work being done, not modes of the crane. He also
  claimed that this exception is “moot” when a crane is loaded with
  counterweights while acknowledging that these rules say nothing about the
  use of counterweights. And TNT’s policies draw no such distinction
  between these “modes.” The administrative law judge, unsatisfied with the
  vice president’s explanation, concluded that, “[i]f the head of health and
  safety was not capable of clearly explaining the distinction—not to mention
  he admitted it was poorly written—it is certainly foreseeable an employee
  would have similar difficulties understanding and implementing the rule.”
  Indeed, the crane operator clearly had such difficulties: he admitted to using
  the crane multiple times to set up its own supporting materials in
  circumstances similar to those here. Given these apparently contradictory
  rules—coupled with the failure of TNT’s vice president to clearly explain
  the contradiction and the crane operator’s admitted past violations—a
  reasonable mind might conclude that the violation here was foreseeable.
  Thus, the administrative law judge’s finding was not an abuse of discretion
  or without support from substantial evidence.
                                       B.
         TNT’s final argument is that the administrative law judge’s finding
  that TNT didn’t establish its unpreventable-employee-misconduct defense
  was an abuse of discretion. This affirmative defense isn’t found in a statute
  or regulation; it’s implied “by the scope of the Act’s prohibitions.” S. Hens,
  Inc. v. Occupational Safety & Health Review Comm’n, 930 F.3d 667, 678 (5th
  Cir. 2019). For this defense, TNT must show that it (1) has “work rules
  designed to prevent the violation,” (2) “has adequately communicated these
  rules to its employees,” (3) has attempted to discover violations of these
  rules, and (4) “has effectively enforced the rules when violations have been



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  discovered.” W.G. Yates, 459 F.3d at 609 n.7. The administrative law judge
  rejected this argument for the same reason that it found the violation
  foreseeable: TNT’s work rules were inadequate to prevent the violation.
  Because we find no error in the administrative law judge’s foreseeability
  finding, we likewise find that he didn’t abuse his discretion in rejecting this
  defense. See S. Hens, 930 F.3d at 678 (noting that, because this defense is
  implied, the unpreventable-employee-misconduct “inquiry often overlaps
  considerably with the main violation inquiry”).
                                       IV.
         For the foregoing reasons, we deny TNT’s petition.




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