                Case: 13-12006        Date Filed: 05/28/2014       Page: 1 of 6


                                                                        [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-12006
                               ________________________

                              Agency No. OSHC-0 : 11-3010

ELLER-ITO STEVEDORING COMPANY, LLC,

                                                                           Petitioner,

                                             versus

SECRETARY OF LABOR,

                                                                           Respondent.



                               ________________________

                      Petition for Review of a Decision of the
                 Occupational Safety and Health Review Commission
                           _________________________

                                       (May 28, 2014)


Before HULL, BLACK and FARRIS, * Circuit Judges.

PER CURIAM:


       *
         Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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      Eller-ITO Stevedoring Company, LLC petitions for review of the

Occupational Safety and Health Review Commission’s (OSHRC) order stating the

case was not directed for review, and directing that the decision of the

Administrative Law Judge (ALJ) become the final order of the OSHRC. Eller-ITO

contends the ALJ made both legal and factual errors in affirming a citation and

penalty assessed by the Occupational Safety and Health Administration (OSHA)

for a workplace accident resulting in the death of Oscar Hyman on May 4, 2011.

After a review of the record and the parties’ briefs, and having had the benefit of

oral argument, we deny the petition.

      To make a prima facie showing that an employer violated an OSHA

standard, the Secretary must show the following four elements: “(1) that the

regulation applied; (2) that it was violated; (3) that an employee was exposed to the

hazard that was created; and importantly, (4) that the employer ‘knowingly

disregarded’ the [Occupational Safety and Health] Act’s requirements.” ComTran

Grp., Inc. v. U.S. Dep’t of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013). If the

Secretary establishes a prima facie case with respect to all four elements, the

employer may then come forward and assert the affirmative defense of

unpreventable or unforeseeable employee misconduct. Id. at 1308. Eller-ITO

contends the Secretary failed to meet his burden on elements one and four of the

prima facie case, and that it met its burden for the affirmative defense.


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                          I. Whether the Regulation Applied

         Eller-ITO contends the ALJ erred in determining the standard in 29 C.F.R.

§ 1918.86(n) applies generally to cargo discharged from a vessel and is not

expressly limited to “vehicle stowage positioning.” In full, the regulation provides:

         Vehicle stowage positioning. Drivers shall not drive vehicles, either
         forward or backward, while any personnel are in positions where they
         could be struck.

29 C.F.R. § 1918.86(n).

         The ALJ’s interpretation of 29 C.F.R. § 1918.86(n) as applying to both roll-

on and roll-off longshoring operations is not arbitrary, capricious, or an abuse of

discretion. See Fluor Daniel v. OSHRC, 295 F.3d 1232, 1236 (11th Cir. 2002).

Titles and headings are not a part of the law itself, and it is well-established that

they “cannot limit the plain meaning of the text.” Bhd. of R.R. Trainmen v.

Baltimore & O.R. Co., 331 U.S. 519, 528-29 (1947). Further, the Secretary’s

interpretation of the regulation is reasonable and is therefore entitled to deference.

See Fluor Daniel, 295 F.3d at 1236. Thus, the Secretary met the first element of

its prima facie case, showing that 29 C.F.R. § 1918.86(n) applied to the conduct at

issue.




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      II. Whether Eller-ITO Knowingly Disregarded the Act’s Requirements

      Eller-ITO asserts the Secretary failed to show that it “knowingly

disregarded” the requirements of § 1918.86(n). Specifically, Eller-ITO contends

the record evidence is insufficient to support a finding that it knew, or with the

exercise of reasonable diligence, could have known, of the violative condition

created by Hyman.

      The knowledge element of the prima facie case can be shown in one of two

ways. ComTran, 722 F.3d at 1307. “First, where the Secretary shows that a

supervisor had either actual or constructive knowledge of the violation, such

knowledge is generally imputed to the employer.” Id. at 1307-08. “In the

alternative, the Secretary can show knowledge based upon the employer’s failure

to implement an adequate safety program, with the rationale being that—in the

absence of such a program—the misconduct was reasonably foreseeable.” Id. at

1308 (citation omitted). An employer’s safety program may be deemed inadequate

if it is not adequately communicated to employees. PSP Monotech Indus., 22

BNA OSHC 1303, 1306 (No. 06-1201, 2008); see also Daniel Int’l Corp. v.

OSHRC, 683 F.2d 361, 364 (11th Cir. 1982) (“[W]e have little doubt that Daniel

has a work rule requiring employees to tie off . . . which is communicated

effectively to all of its employees.” (emphasis added)); H.B. Zachry Co. v. OSHRC,




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638 F.2d 812, 820 (5th Cir. Unit A Mar. 1981)1 (finding, in the context of

establishing a defense of negligent employee misconduct, substantial evidence in

the record supported a finding that a company failed to communicate and enforce

its work rules needed to comply with OSHA standards).

       After reviewing the record, and applying the “considerable deference”

afforded to OSHRC decisions, we conclude substantial evidence supports the

ALJ’s finding that Eller-ITO knowingly disregarded the Act’s requirements. See

29 U.S.C. § 660(a); Fluor Daniel, 295 F.3d at 1236 (explaining “[s]ubstantial

evidence is more than a scintilla, and is such relevant evidence as a reasonable

person would accept as adequate to support a conclusion”). Accordingly, the

Secretary established all four elements of his prima facie case that Eller-ITO

violated 29 C.F.R. § 1918.86(n). See ComTran, 722 F.3d at 1307.

                         III. Preventable Employee Misconduct

       Finally, Eller-ITO contends the ALJ erred in determining it had not met its

burden of proving the affirmative defense of preventable employee misconduct.

“This defense requires the employer to show that it: (1) created a work rule to

prevent the violation at issue; (2) adequately communicated that rule to its

employees; (3) took all reasonable steps to discover noncompliance; and


       1
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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(4) enforced the rule against employees when violations were discovered.” Id.

Substantial evidence supports the ALJ’s finding that Eller-ITO could not prove this

defense. See Fluor Daniel, 295 F.3d at 1236.

      Thus, we deny Eller-ITO’s petition for review.

      PETITION DENIED.




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