               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0225n.06
                           Filed: March 29, 2005

                                          No. 03-4456

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


COMPLETE GENERAL CONSTRUCTION CO.,  )
                                    )
    Petitioner,                     )
                                    )
v.                                  )                       On Petition for Review of an Order
                                    )                       of the Occupational Safety and
OCCUPATIONAL SAFETY & HEALTH REVIEW )                       Health Review Commission
COMMISSION; SECRETARY OF LABOR,     )
                                    )
    Respondents.                    )




Before:        BOGGS, Chief Judge; COOK, Circuit Judge; and BEER, District Judge.*

               PER CURIAM. Complete General Construction Co. petitions for review of an order

of the Occupational Safety & Health Review Commission fining it for inadequately protecting a

trench. Because there is substantial evidence to support the Administrative Law Judge’s conclusion

that the company failed to adequately communicate its safety rules to its employees and, thus, was

not entitled to the affirmative defense of unpreventable employee misconduct, we deny the petition

for review.



                                                I



       *
        The Honorable Peter H. Beer, United States District Judge for the Eastern District of
Louisiana, sitting by designation.
No. 03-4456
Complete General v. Commissioner

       Complete General Construction Co. (“Complete General”) is a general contractor that

completed a storm drainage project for the City of Dublin, Ohio during the summer and fall of 2002.

William Redoutey, who had been hired by the company in August of that year, was working as a

foreman on the project. On the morning of September 20, 2002, the crew was installing a storm

pipeline by the side of a street in Dublin. To do so, they had dug a trench, which they were

attempting to lengthen using an excavator. Another recently hired employee, Louis Royce Ford,

entered the trench to work on some of the pipe that was already in place. While he was in the trench,

the bucket of the excavator detached and struck Ford on the head, causing serious injury.

       A compliance officer from the Occupational Safety and Health Administration’s (“OSHA”)

Columbus area office arrived at the work site to investigate the accident. Based on the officer’s

investigation, Complete General was issued two serious citations. The first citation, relating to the

company’s operation of the excavator, was withdrawn prior to the hearing. Though the second

citation was not related to Ford’s injury, Complete General was also cited for not having an adequate

protective system in place at the trench to prevent cave-ins, in violation of the procedures set forth

in 29 C.F.R. § 1926.652.1




       1
         To prevent trenches from caving in, OSHA regulations establish procedures for how to
protect trenches that are deeper than five feet and comprised not entirely of rock. § 1926.652(a).
One common way to protect a trench is the use of a shield system: walls that are placed in the trench
to prevent the trench from collapsing. See § 1926.652(c). Another common way, and the one used
by Complete General in this instance, is to slope the walls of the trench to prevent cave-ins. See §
1926.652(b). The angles at which the trench’s walls can be sloped depend primarily on the kind of
soil around the trench. See ibid.

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No. 03-4456
Complete General v. Commissioner

       Complete General contested the violation, which led to a hearing before an Administrative

Law Judge (“ALJ”) on April 30, 2003. The company argued both that it had adequately sloped the

trench and, in the alternative, that any deficiency was the fault of Redoutey, the company’s foreman

on the job. Thus, Complete General asserted, they were entitled to the affirmative defense of

unpreventable employee misconduct. The ALJ decided that Complete General had failed to

sufficiently slope the trench. She also rejected the company’s affirmative defense because it had

failed to adequately communicate its safety rules to its workers. Having affirmed the citation, the

ALJ assessed a fine of $2,500.

       Complete General filed for discretionary review with the Occupational Safety & Health

Review Commission, which denied the request on September 11, 2003. It now petitions this court

to review the ALJ’s denial of its affirmative defense of unpreventable employee misconduct.



                                                II

       Because the Commission declined to review the ALJ’s decision, we review her decision as

the Commission’s final order. See Martin v. Occupational Safety & Health Review Comm’n, 499

U.S. 144, 148 (1991) (“Initial decisions are made by an administrative law judge (ALJ), whose

ruling becomes the order of the Commission unless the Commission grants discretionary review.”).

We review the Commission’s findings of fact to determine if they are supported by substantial

evidence. CMC Elec., Inc. v. OSHA, 221 F.3d 861, 865 (6th Cir. 2000) (citing 29 U.S.C. § 660(a)

(“The findings of the Commission with respect to questions of fact, if supported by substantial

evidence on the record considered as a whole, shall be conclusive.”)). This standard is highly

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No. 03-4456
Complete General v. Commissioner

deferential. Danis-Shook Joint Venture XXV v. Sec’y of Labor, 319 F.3d 805, 809 (6th Cir. 2003).

We have described substantial evidence, in this context, as “more than a scintilla, but less than a

preponderance, of the evidence. It is such relevant evidence as a reasonable mind might accept as

adequate to support the conclusion reached.” R.P. Carbone Constr. Co. v. Occupational Safety &

Health Review Comm’n, 166 F.3d 815, 818 (6th Cir. 1998).

       To make out a defense of unpreventable employee misconduct, “an employer must show that

it has a thorough safety program, it has communicated and fully enforced the program, the conduct

of the employee was unforeseeable, and the safety program was effective in theory and practice.”

Danis-Shook, 319 F.3d at 812 (citing CMC Elec., 221 F.3d at 866). Highly relevant in evaluating

claims of unpreventable employee misconduct is the performance of supervisors and foremen. As

this court has stated on more than one occasion, “‘negligent behavior by a supervisor or foreman[,]

which results in dangerous risks to employees under his or her supervision, . . . raises an inference

of lax enforcement and/or communication of the employer’s safety policy.’” Id. at 811 (quoting

Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270, 1277 (6th Cir.), cert. denied, 484 U.S.

989 (1987)).

       In this case, the ALJ found that Complete General was not entitled to the defense of

unpreventable employee misconduct because it had failed to adequately communicate its rules

concerning trenching to its employees. This is a factual finding that we review for substantial

evidence. See CMC Elec., 221 F.3d at 866 (“We conclude that under these circumstances there is

substantial evidence . . . that CMC did not adequately train its employees to recognize the relevant

hazards or applicable regulations.”) (emphasis added); George J. Igel & Co. v. Occupational Safety

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No. 03-4456
Complete General v. Commissioner

& Health Review Comm’n, No. 01-3540, 50 Fed. Appx. 707, 714 (6th Cir. Oct. 30, 2002)

(unpublished opinion); cf. Brock, 818 F.2d 1277-78 (treating issue of unpreventable employee

misconduct as factual issue after having resolved circuit’s approach to issue). Upon review of the

record, we believe that sufficient evidence exists for a reasonable mind to accept the conclusion that

Complete General failed to adequately communicate its safety rules concerning trenching to its

employees. See R.P. Carbone Constr., 166 F.3d at 818.

       Complete General communicated its safety rules to its foremen through multiple means: a

comprehensive safety manual, weekly “toolbox talks,” and an annual safety class given to all

supervisors. Despite these forms of communication, there remains substantial evidence that the

company failed to adequately communicate its safety rules, especially to recently hired foremen such

as Redoutey. Trenching and excavation are central activities at Complete General. The rules

governing it are relatively complicated and, as such, they are thoroughly explained in the company’s

safety manual. However, while each employee signed a waiver indicating that he received the

manual and had a responsibility to read it, Complete General made no effort to insure that its

employees actually did read and understand its contents, including the detailed rules on trenching.

Redoutey’s personal experience is instructive on this point. Redoutey stated that he was given a

short time to review the safety manual. He then returned to a manager’s office and signed the

waiver. A reasonable mind might well accept that merely having an individual sign a form

acknowledging his responsibility to read the safety manual is insufficient to insure that the detailed

instructions contained therein have actually been communicated.




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No. 03-4456
Complete General v. Commissioner

       Complete General’s failure to insure employees read the safety manual would not defeat its

assertion of the unpreventable employee misconduct defense were it to effectively communicate the

trenching rules through other means. The company’s weekly “toolbox talks” and supervisors’ safety

class failed, however, to effectively communicate safety rules. The “toolbox talks” suffered from

two critical defects. First, the ALJ credited Ford’s testimony that these meetings did not focus on

the transmittal of safety information, but instead were an opportunity to recount the week’s events,

plan for next week, and distribute the employees’ paychecks. Second, trench safety was not the

central topic of any “toolbox talk” during Redoutey’s tenure at the company. Trenching and

excavation was only mentioned once, as part of a “top ten” list of standards cited by OSHA. The

sheet merely stated the relevant Code of Federal Regulations section and the general purpose of the

regulation, that employees “be protected from cave-ins by an adequate protective system.” See 29

C.F.R. § 1926.652(a)(1). While Complete General’s supervisor safety class dealt extensively with

trenching, that class was only held annually. A newly hired foreman could then have a period of up

to one year without adequate training. Thus, neither the “toolbox talks” nor the supervisors’ safety

class adequately conveyed Complete General’s safety rules regarding trenching and excavating to

the company’s employees, especially newly hired foremen such as Redoutey.

       The fact that Redoutey, due to his prior work experience, may have known the rules

regarding trenching is insufficient to rebut the evidence that Complete General failed to adequately

communicate its own safety rules to its own employees. As the Commission has acknowledged

previously, an employee’s knowledge gained from previous work experience is not necessarily

determinative of whether the company adequately communicated its precautionary measures. See

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No. 03-4456
Complete General v. Commissioner

Halmar Corp., 18 O.S.H. Cas. (BNA) 1014, 1018, 1997 WL 594393 at *5 (O.S.H.R.C. 1997)

(finding inadequate communication despite an employee knowing the relevant rules when his

knowledge stemmed from “past experience and training” and not his current employer). Redoutey’s

failure to properly slope the trench resulted in a “dangerous risk” to the employees working under

him. Danis-Shook, 319 F.3d at 811 (quoting Brock, 818 F.2d at 1277). Because Redoutey was a

foreman, his negligence raises an inference of lax communication. Ibid.

       This inference of lax communication is further supported by Complete General’s practices.

Despite the safety manual’s detailed rules on trenching, a reasonable mind might accept the ALJ’s

finding that Complete General did not adequately communicate its safety rules because the company

did not take steps to insure the employees read and understood them. The company did not check

that employees read the manual and did not effectively communicate its rules via alternative means.

Therefore, the ALJ’s conclusion that Complete General is not entitled to the defense of

unpreventable employee misconduct is supported by substantial evidence. We accordingly affirm

the Commission’s order and deny the petition for review.




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