     Case: 18-60413      Document: 00514984948         Page: 1    Date Filed: 06/05/2019




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

                                      No. 18-60413                           FILED
                                                                          June 5, 2019
                                                                        Lyle W. Cayce
CALPINE CORPORATION,                                                         Clerk

              Petitioner

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; R.
ALEXANDER ACOSTA, SECRETARY, DEPARTMENT OF LABOR,

              Respondents




                    Petition for Review of an Order of the
              Occupational Safety and Health Review Commission
                             OSHRC No. 11-1734


Before HAYNES, GRAVES, and HO, Circuit Judges.
PER CURIAM:*
       Calpine Corporation appeals the Occupational Safety and Health Review
Commission’s assessment of a $7,000 penalty for a violation of the
Occupational Safety and Health Act. We AFFIRM.
                                     I.    Background
       Calpine Corporation owns and operates a power plant in Bethlehem,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-60413

Pennsylvania. The power plant has electrical generators driven by turbines
that are housed in various buildings throughout the plant. The Occupational
Safety and Health Act (the “Act”) violation at issue concerns the conditions in
the CT-6 building. The CT-6 building has a combustion turbine and two
combustion chambers—one east of the turbine, and one west of the turbine.
The two chambers are surrounded by a walking platform, with a bridge
connecting them. The platform is made of several removable steel grates and
is approximately seventeen feet above the ground. The platform is accessible
from the ground by climbing either the ladder at the east combustion chamber
or the west combustion chamber.
      In 2010, Calpine hired Siemens Energy, Inc. to overhaul the CT-6
turbine.   Siemens disassembled portions of the catwalk and removed
individual steel grates as part of the overhaul, leaving unguarded openings.
These openings were present during the week of December 20, 2010. Siemens
scheduled the December 21, 2010 day-shift crew to reassemble the platform
and catwalk surrounding and connecting the CT-6 turbine. The task was not
completed that day.
      During that week, Siemens’s crews worked two shifts in the CT-6
building: a day shift from 7:00 a.m. to 5:30 p.m., and a night shift from 5:00
p.m. to 3:30 a.m. Calpine crews also worked two shifts during this period: a
day shift from 6:00 a.m. to 6:00 p.m., and a night shift from 6:00 p.m. to 6:00
a.m. Thus, from 3:30 a.m. to 7:00 a.m., Siemens’s employees were absent while
Calpine employees were performing their assigned tasks, including any in the
CT-6 building.
      Thomas Narkin, Calpine’s operations manager, was responsible for
managing seventeen maintenance employees, including four lead maintenance
operators (“LMOs”). He assigned a CT-6 building task in a work order issued


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for the week of December 20, 2010. The work assignment directed a Calpine
employee to install a spark rod in one of the combustion chambers in the CT-6
building.   Timothy Lewis, an LMO, started the spark rod assignment on
December 21, 2010, at approximately 4:30 a.m. To install the spark rod in a
chamber, one must climb up to the platform surrounding the combustion
chambers via one of the two access ladders. Lewis testified that he did not
know at the time which chamber required the spark rod and that the work
order did not provide clarification.      After observing several unguarded
openings in the platform (left by the Siemens crew), Lewis determined the
openings made walking on the platform unsafe and abandoned the work
assignment. Lewis testified that he told Narkin and incoming shift LMO,
Raymond Lutz, about the condition of the platform.
      At 10:58 a.m. on December 21, 2010, Narkin issued another work order
by e-mail, stating, “[I]f tarps and Siemens are not in the way, install new spark
rod sitting on control room counter in CT-6 where one was ‘borrowed’ for CT-2
this past weekend.” Raymond Rice and Roy Killgore, turbine engineers for a
division of Calpine that provided technical oversight of Siemens’s overhaul
work, saw the Siemens’s Shift Turnover Report indicating that Siemens had
not finished replacing the grates in the CT-6 platform as of 5:00 p.m. on
December 21, 2010.
      As described above, Siemens employees would not be “in the way” for
more than three hours in the early morning. Although tarps covered the
combustion chambers on December 22, 2010, Lewis and Lutz both testified
that tarps would not have prevented them (i.e., not been “in the way”) from
performing the assigned task because the tarps were attached to the top of the
combustion chambers by bungee cords, and could be peeled back to permit the
installation of the spark rod located near the edge of the tarp.


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       Early in the morning on December 22, 2010, the decedent (unnamed in
the appellate materials), a Calpine LMO, was assigned to replace the spark
rod in the CT-6 building. Surveillance video shows the decedent entered the
CT-6 building at 3:32 a.m., after the Siemens’s shift ended, with a spark rod in
his pocket. Although the video did not capture which entrance the decedent
used, Lutz testified that the decedent probably used the entrance closer to the
west combustion chamber, the same entrance Lewis used the day before. The
decedent’s body was found in the CT-6 building beneath the catwalk between
5:00 a.m. and 5:30 a.m. The Occupational Safety and Health Administration
(“OSHA”) investigated the incident and cited Calpine for a serious violation of
29 C.F.R. § 1910.23(a)(7)(2010), which stated that “every temporary floor
opening shall have standard railings, or shall be constantly attended by
someone.” 1
       In May 2013, an Administrative Law Judge (“ALJ”) vacated the citation
because the Secretary of Labor did not establish all four elements required to
prove a violation under the Act. The ALJ held that (1) the cited standard
applies; (2) the terms of the standard were violated; (3) the employer knew, or
with the exercise of reasonable diligence could have known, of the violative
condition, but held the Secretary had failed to prove that (4) Calpine employees
were exposed or had access to the cited condition. The ALJ rejected Calpine’s
“unpreventable      employee      misconduct”       and   “multi-employer       worksite”
defenses.     The Secretary appealed to the Occupational Safety and Health
Review Commission (the “Commission”).               In April 2018, the Commission
affirmed the ALJ on the first three prongs and Calpine’s affirmative defenses,



       1Well after OSHA issued Calpine the citation, this OSHA regulation was revised in a
rulemaking. The current version of the rule can be found at 29 C.F.R. §1910.28(b)(3)(i), and
contains different language.

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but held it was reasonably predictable that Calpine employees would be
exposed to the platform opening “based on Narkin’s continuing work order to
install the spark rod near the top of CT-6.” Sec’y of Labor v. Calpine Corp.,
2018 WL 1778958 at *3, (O.S.H.R.C. Apr. 6, 2018). The Commission further
held the ALJ had erred in relying on factors that were not relevant to the
exposure analysis, including the low priority of the assigned task, Calpine’s
safety training, the decedent’s good safety record, and the obviousness of the
hazard. Id. at *3–4. Thus, the Commission reversed the ALJ and assessed a
$7,000 penalty. Calpine filed a timely petition for review. On appeal, Calpine
argues the Commission erred with respect to the third and fourth prongs
related to Calpine’s knowledge and whether employees were exposed or had
access to the condition at issue. Calpine also reiterates its unpreventable
employee misconduct defense.
                  II.    Jurisdiction & Standard of Review
      We have jurisdiction under 29 U.S.C. § 660(a), which allows a party
adversely affected by a final order from the Commission to seek review from
the United States Court of Appeals in the circuit where the employer has its
principal office. Calpine maintains its principal office in Houston, Texas.
      The Commission’s findings of fact must be accepted if supported by
substantial evidence on the record considered as a whole. Sanderson Farms,
Inc. v. Perez, 811 F.3d 730, 734 (5th Cir. 2016) (citations omitted).         The
standard “requires [us] to uphold factual findings if a reasonable person could
have found what the Commission found, even if [we] might have reached a
different conclusion.”    Id. (internal quotation marks omitted) (citations
omitted). “Legal conclusions are reviewed for whether they are ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the
law.’” Id. at 734–35 (quoting Austin Indus. Specialty Servs., LP. v. OSHCR,
765 F.3d 434, 438–39 (5th Cir. 2014) (per curiam)).

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       “OSHA has the burden of proving sufficient facts to support the
citation.” Id. at 735 (citing Champlin Petroleum Co. v. OSHRC, 593 F.2d 637,
640 (5th Cir. 1979)). “The Secretary of Labor 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.” Id. at 735 (citing Sec’y of Labor v.
Jesse Remodeling, LLC, 22 BNA OSHC 1340 (2006); Sec'y of Labor v. Atlantic
Battery Co., 16 BNA OSHC 2131 (1994)). The first element is not disputed.
                                    III.    Discussion
       A. Knowledge
       Calpine first argues the Secretary did not establish that Calpine “knew
of, or with exercise of reasonable diligence could have known of the non-
complying condition.” Trinity Indus. Inc. v. OSHRC, 206 F.3d 539, 542 (5th
Cir. 2000). A supervisor’s knowledge of a violative condition can be imputed to
the employer. See Sanderson, 811 F.3d at 737. Here, as both the ALJ and the
Commission noted, five supervisors including Narkin, Lutz, Lewis, Rice, and
Killgore, all knew of the unguarded platform openings. See Calpine Corp.,
2018 WL 1778958 at *5. Specifically, Lewis and Lutz both testified that they
had discussed the issue with Narkin. 2 Id. Killgore and Rice oversaw Siemens’s
work during the overhaul and were in the CT-6 building daily, and both
reviewed the December 21, 2010 report that indicated Siemens had not


       2Narkin testified that he was not told about the opening, but the ALJ credited Lewis’s
and Lutz’s testimony. Specifically, the ALJ found “Narkin’s denial was a ‘convenient
explanation for his inaction in not removing the spark rod replacement task from the night
order or warning the deceased’ of the opening, citing Narkin’s ‘defensive and unpersuasive’
demeanor in testifying about this issue.” Calpine Corp., 2018 WL 1778958 at *5, (O.S.H.R.C.
Apr. 6, 2018). Given that Lutz’s and Lewis’s testimony contradicted Narkin’s and that
Narkin re-issued the work order with the tarp caveat, a reasonable person could conclude as
the ALJ did.

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finished replacing the platform grates as of 5:00 p.m. Calpine admits that “the
record demonstrates that TMGs Rice and Killgore (as well as other Calpine
employees) were aware that a temporary opening existed in the upper platform
of CT-6 in the days prior to the decedent’s accident.” Thus, the Commission
did not act arbitrarily or capriciously when it held Calpine had knowledge of
the unguarded platform opening.
      Calpine cites W.G. Yates & Sons Construction Co. v. OSHRC, 459 F.3d
604, 607–08 (5th Cir. 2006), to argue that before knowledge can be imputed
from a supervisor to the employer, the Secretary must prove that either (1) the
employer’s safety policy, training, and discipline are deficient or (2) that the
supervisor’s violation of a safety policy was foreseeable. But Yates addresses
only when a supervisor’s knowledge of his own misconduct violates an
employer’s policy or instructions. See Yates, 459 F.3d at 609 n.8 (noting that
the case addressed only situations where the supervisor himself engages in
unsafe conduct contrary to employer policy).       Calpine does not assert the
failure to guard the platform opening arose from misconduct of any of its
supervisors, making Yates inapplicable.
      Calpine also argues that employers cannot be held liable “for the
unforeseeable, implausible, and therefore unpreventable acts of [its]
employees.” Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564, 570–71
(5th Cir. 1976). To support its argument, Calpine asserts that its extensive
safety policy and the decedent’s exemplary safety history illustrate
implausibility. But Calpine’s argument is inapposite for multiple reasons.
First, in Yates, we interpreted Horne to address only situations when a
supervisor’s knowledge of his own misconduct is imputable to the employer.
Yates, 459 F.3d at 609. Moreover, regardless of what caused the decedent’s
fall, the unguarded openings themselves would be a violation if employees were


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exposed to or had access to them. Calpine’s awareness of the existence of a
temporary floor opening that lacked guardrails or a permanent attendant
(along with the other three prongs) is sufficient for OSHA to find a violation of
the Act. Finally, Calpine’s foreseeability argument conflates the knowledge
element with the exposure element of the four-part test. But “reasonable
predictability is relevant only to the element of exposure and not to the
knowledge element.” Sec’y of Labor v. Phoenix Roofing, Inc., No. 90-2148, 1995
WL 82313 at *3 n.6 (O.S.H.R.C. Feb. 24, 1995) (internal quotation marks
omitted), aff’d sub nom. Phoenix Roofing, Inc. v. OSRHC, 79 F.3d 1146 (5th
Cir. 1996) (unpublished table decision). Instead, “[e]mployer knowledge is
established by a showing of employer awareness of the physical conditions
constituting the violation.” Id.
      B. Exposure
      Calpine next argues there was no access or exposure to the violative
condition. To establish exposure, the Secretary must show that access to the
cited condition was reasonably predictable. 3 Id. Reasonable predictability is
established when “employees have been, are, or will be in the zone of danger,”
which may happen “while in the course of assigned working duties . . . or their
normal means of ingress-egress to their assigned workplaces.” Calpine Corp.,
2018 WL 1778958 at *3, (O.S.H.R.C. Apr. 6, 2018) (internal citations omitted);
see also Donovan v. Adams Steel Erection, Inc., 766 F.2d 804, 812 (3d Cir.
1985).
      There is substantial evidence in the record to support the Commission’s
holding that “Calpine assigned its employees to complete a task that would
bring them into the ‘zone of danger’ posed by the unguarded platform opening.”
Calpine Corp., 2018 WL 1778958 at *4–5. Narkin first assigned the work order


      3   The Secretary does not argue actual exposure.

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to install the spark rod on December 20, 2010, and Lewis attempted to
complete the task. The assigned task required going on the upper platform,
which contained the unguarded openings. Despite knowing about Lewis’s
concerns, Narkin expressly reassigned the task in writing on December 21,
2010. As noted above, nothing in Narkin’s work order prevented an employee
from attempting the task because tarps could be peeled back to permit the
installation of the spark rod located near the edge of the tarp and Siemens’s
employees were gone for several hours. In addition, the unguarded openings
were closest to the west chamber ladder, which both Lutz and Lewis testified
was the easier way to access the platform. In fact, Lewis did access the CT-6
building through the southwest access door closest to the west chamber when
he attempted the task. Therefore, the Commission’s conclusions regarding
“access or exposure” were not arbitrary or capricious.
      Calpine restates its argument before the ALJ that a “reasonably
predictable” finding cannot be made without considering the low priority of the
task in question, the conditional nature of the authorization to complete the
task, Calpine’s extensive safety policy, decedent’s excellent safety record, and
that the cited condition was obvious from ground level.
       The Commission held that these arguments have no bearing on an
exposure analysis. Calpine’s first two points are contradicted by testimony
from its own employees. Regardless of the priority of the task, work orders
relayed “what needs to be done that night” and “listed things that need to be
looked at that evening usually.” Calpine employees understood orders tasks
needed to be completed. One Calpine employee testified: “In hindsight there
was no sense of urgency . . . But if you’re told to do it, I mean, you know.” Any
task that was not completed during a night shift would roll over to the next
shift’s work order until it was completed. Calpine’s priority argument is also


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belied by the fact that the task was assigned multiple times and multiple
employees attempted it. As for authorization to complete the task, Lutz and
Lewis both testified the tarps would not have prevented an employee from
performing the task, making the caveat in Narkin’s e-mail moot.
      The remaining factors Calpine mentions may relate to its affirmative
defense of employee misconduct but cannot be applied to the exposure analysis.
This is because the Secretary did not rely upon actual exposure or argue that
the decedent’s death was caused by the unguarded platform opening. Instead,
the only relevant analysis for a violation of the Act and Calpine’s citation is
whether exposure to the opening was reasonably predictable. Even if we gave
full credit to Calpine’s assertions that it had an extensive safety policy, that
decedent had an excellent safety record, and that the cited condition was
obvious from ground level, it would not change the facts showing employee
exposure to the violative condition: the task to install the spark rod (which
required accessing the unguarded open platform) was assigned multiple times,
the easiest route to the platform was the west chamber, and the tarps in place
did not prevent the completion of the task. Thus, Calpine’s arguments related
to exposure are both inapplicable and unpersuasive.
      C. Unpreventable Employee Misconduct
      Finally, Calpine argues that the Commission erred when it held the
unpreventable employee misconduct defense was unavailable as a matter of
law. To establish that a violation was the result of unpreventable employee
misconduct, Calpine must show it has (1) established work rules designed to
prevent the violation, (2) adequately communicated these rules to its
employees, (3) taken steps to discover violations, and (4) effectively enforced
the rules when violations have been discovered. Yates, 459 F.3d at 609 n.7.
Calpine cannot establish the first prong, and once again conflates decedent’s


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accident with the violation of the Act—the unguarded platform opening.
Calpine re-asserts the same arguments it did with respect to exposure,
including that Calpine had well-implemented safety rules and that employees,
including decedent, would be aware not to enter the upper platform in CT-6.
This argument is inconsistent with the very terms of the work order that at
least two employees construed as allowing the required work to be performed
in the unguarded, unmanned opening. That itself is a violation even if it did
not cause decedent’s death. As the Secretary notes in his brief, “even strict
compliance with Calpine’s policy would not have prevented the violation.”
     For the reasons stated above, the Commission’s decision is AFFIRMED.




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