           Case: 11-13748   Date Filed: 02/01/2013   Page: 1 of 18

                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                              No. 11-13748

                       ________________________

                        OSHC Docket No. 10-0549



M.C. DEAN, INC.,

                                                                      Petitioner,

                                  versus



SECRETARY OF LABOR,

                                                                     Respondent.


                       ________________________

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

                            (February 1, 2013)

Before HULL, WILSON and HILL, Circuit Judges.
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PER CURIAM:

      M.C. Dean petitions for review of a final decision of the Occupational

Safety and Health Review Commission finding that M.C. Dean violated the

Occupational Safety and Health Act (“OSHA”) by failing to guard a skylight

which resulted in an employee’s fall and subsequent death. After careful review of

the record and briefs, and with the benefit of oral argument, we deny the petition

for review and affirm the Commission’s decision.

                                I. BACKGROUND

      Because the facts underlying M.C. Dean’s citation are central to this appeal,

we recount them below.

A.    The Underlying Incident

      Petitioner M.C. Dean is an electrical contractor that, among other things,

services existing electrical installations. In August 2009, Ryder Transportation

Services (“Ryder”) hired M.C. Dean to perform electrical equipment upgrades and

maintenance at Ryder’s warehouse. Tommy McGregor, M.C. Dean’s service

group manager, selected a three-person team to complete the Ryder project: Boyd

Young, Lewis Quinn, and Sam Dittmore. Young and Quinn were both journeymen

electricians, while Dittmore was an apprentice electrician.

      While McGregor was the team’s supervisor, a lead electrician was selected

to manage the Ryder project onsite. Because Young had more knowledge and


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experience with motor controls, service panels, and breakers, Young became the

“lead” or “senior man” on the Ryder project.

       As lead, Young served as the direct contact with Ryder and managed the

project onsite. A Ryder representative communicated directly to Young the tasks

to be performed at the job; Young then relayed that information to supervisor

McGregor. But if a new task was required, McGregor was not always called

before it was added to the task list, and Young had the latitude to service additional

work requests. Also in his capacity as lead, Young obtained any necessary

materials missing from the jobsite; answered any inquiries from Ryder; and

generally determined the manner in which the tasks of the job would be executed.

However, Young could not discipline any employee. That duty remained with

McGregor. McGregor was also responsible for safety.

      The work required for the Ryder project included running conduit and

mounting junction boxes along the roof inside the warehouse. The work was

completed using an articulating boom lift inside the facility. While working inside

the warehouse, the crew noticed rectangular skylights located on the roof of the

building.

      M.C. Dean’s crew had been onsite for approximately two weeks, when on

August 27, 2009, Dittmore completed the daily pre-task planner for the Ryder job.

The pre-task planner assessed the risks involved in the day’s tasks. After Dittmore


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filled out the planner, Young and Quinn reviewed it, and all three crew members

signed it. The pre-task planner noted as safety hazards for the day “[o]thers

working in the area” and “finish unenergized circuits using lift.” In two places, the

pre-task planner noted that the crew would need “100% Fall Protection.” 1 The pre-

task planner did not mention any hazard related to the skylights or roof. At the

time the crew completed the pre-task planner on August 27, they did not know they

would have to access the roof that day.

       Later that morning, the crew learned that the facility’s exhaust fans did not

come on with the flip of the switch as they should have after the crew finished

rewiring. The crew determined it would have to access the roof to verify the

voltage at the exhaust fans. Prior to accessing the roof, Young discussed it with

Jeff Thompson, a Ryder employee. Thompson told Young that there was no roof

access, but the roof had been accessed in the past via a series of ladders.

       As noted above, the Ryder facility’s roof had a number of skylights that

were apparent from the ground inside the building. However, on the roof, the

skylights were nearly invisible, as the color and texture of the corrugated roof and

skylight panels were virtually identical. The skylight panels were approximately

25 feet apart on the roof, and no skylight was within six feet of either exhaust fan


       1
         The term “100% Fall Protection” referred to an M.C. Dean six-foot rule whereby an
employee must be “tied off” (e.g., wear a harness) if the employee is working within six feet of a
fall hazard.

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that the crew would be required to access. Thompson and Young did not discuss

the skylights on the roof, and Young did not inquire as to whether the skylights had

a guardrail or screen, or whether they were clearly marked.

       The crew decided to access the roof using the boom lift. Because Quinn had

the most experience with the lift, Quinn used the lift to access the roof. Quinn

wore a safety harness (i.e., fall protection) while transported in the lift from the

ground to the roof. Once he exited the lift onto the roof, Quinn did not use a

harness. Quinn was on the roof for 15 or 20 minutes and remained in constant

radio contact with Young. After testing the two exhaust fans, Quinn fell through a

skylight 25 feet to the facility’s concrete floor below. Two weeks later, Quinn died

from his injuries.

B.     The OSHA Inspection and Citation

       On September 11, 2009, Reinaldo White, an OSHA compliance officer,

conducted an investigation at the Ryder facility after Quinn’s death. After his

investigation, White recommended, and the Secretary of Labor issued, a single

“serious” citation to M.C. Dean for failing to guard the skylight openings in

violation of 29 C.F.R. § 1910.23(a)(4).2 White recommended its categorization as

a “serious” violation because of Quinn’s death. The proposed penalty was $7,000.

       2
        The Secretary also cited Ryder, alleging violation of the same provision. In a decision
and order dated February 28, 2011, another administrative law judge vacated the citation. The
Secretary requested and was granted review of the decision by the Occupational Safety and
Health Review Commission, before which it remains pending.

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M.C. Dean contested the citation and penalty to an administrative law judge of the

Occupational Safety and Health Review Commission (the “Commission”). 3

C.     The Administrative Law Hearing and Decision

       On September 2 and 3, 2010, an administrative hearing was held before an

administrative law judge (“ALJ”). The ALJ heard testimony from Reinaldo White,

Boyd Young, Tommy McGregor, and M.C. Dean’s Vice-President of Safety John

Bennett.

       Boyd Young testified as to the events of August 27, 2009. Young estimated

that the skylights were located 25 feet away from the exhaust fans on the roof.

Young also testified about the six-foot rule, and stated that he and Quinn had been

trained on the six-foot rule. Young had no reason to believe Quinn would go

within six feet of any of the skylights. But Young testified that he had never

before seen those kinds of flush skylight panels.

       Tommy McGregor testified that on the day of the accident, Young was

designated lead, but neither Quinn nor Young were considered supervisors.

McGregor defined the term “field supervisor” as a “general term” referring to

when “someone is watching over or dictating the task.” But if a serious problem



       3
        The Commission is an independent adjudicative forum for citation disputes. 29 U.S.C.
§§ 659, 661. When an employer contests an OSHA citation by the Secretary, a hearing is held
by an administrative law judge of the Commission. A party dissatisfied with the decision of the
administrative law judge may then petition for discretionary review by a three-member
Commission panel. 29 U.S.C. §§ 659(c), 661(j).

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arose on the jobsite, the crew would have called McGregor, as it was his duty to

take care of those issues. Specifically, if an employee violated safety

requirements, it was McGregor’s responsibility to take care of it. McGregor would

visit jobsites, but it would vary as to how often he visited. McGregor did not go to

the Ryder jobsite until after the accident.

         McGregor testified that on the day of the accident, he was not aware that the

crew was going to go on the roof as it was not part of the original scope of work.

McGregor also testified that it was rare for M.C. Dean employees to be required to

access a roof, and that after the incident, M.C. Dean instituted a roof permitting

process whereby employees must obtain a roof access permit before accessing a

roof.

         John Bennett testified to M.C. Dean’s extensive safety training program,

including its emphasis on fall protection. Bennett also testified that he would

consider the persons in charge of safety on a jobsite to be those present: “I would

look at Lewis Quinn and Boyd Young as being equally responsible because they

were at equal levels, but taking in consideration of the fact that Tommy assigned

Boyd as the lead person because he was more familiar with the type of work at that

time.”

         After the hearing and after reviewing the parties’ post-hearing briefs, the

ALJ affirmed the citation and assessed the recommended penalty of $7,000. The


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ALJ determined that the Secretary had met her burden of showing M.C. Dean had

knowledge of the fall hazard posed by the skylight. The ALJ found that M.C.

Dean had that knowledge through the constructive knowledge of Young, whom

she deemed an onsite supervisor. Specifically, the ALJ found that (1) M.C. Dean

had assigned Young as the onsite field supervisor or lead for the day of the

accident; (2) Young controlled the “method and manner” in which the crew

performed the assigned tasks and he maintained the ability to assign tasks to other

employees, including other journeymen; (3) McGregor relied on Young to

determine the tasks to be performed at the warehouse; (4) Young served as M.C.

Dean’s contact with Ryder and had the “latitude” to agree on changes or

modifications to the project; and (5) M.C. Dean’s Vice-President of Safety Bennett

testified McGregor had to rely on Young as his “lead person” to monitor safety at

the worksite. The ALJ found that although Young did not have the authority to

hire or fire, Commission precedent did not hold such power as the “sine qua non of

supervisory status.”

      The ALJ also rejected M.C. Dean’s argument that it should not be cited

because of its effective safety rules and enforcement of those rules. The ALJ

found that although the lack of guarding of the skylights “was not ‘readily

apparent’ from the ground, the existence of the skylights was.” But when the M.C.

Dean crew determined that they needed to access the roof, no new risk assessment


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was performed. Significantly, Young admitted that a skylight hazard should have

been included on the pre-task planner. Further, because M.C. Dean’s employees

rarely worked on roofs, the lack of experience with roofs made Young’s failure to

investigate the conditions on the roof and discuss safety issues related to the roof

even more questionable. Because the record evidence established that Young

failed to exercise reasonable diligence to anticipate the skylight hazard, and

because Young’s knowledge could be imputed to M.C. Dean, the ALJ upheld the

citation and assessed the proposed penalty.

      The ALJ also rejected M.C. Dean’s affirmative defenses of infeasibility and

greater hazard because, respectively, (1) M.C. Dean failed to introduce any

evidence that installing fall protection for the skylights would have had a severe

adverse economic effect on the company; and (2) M.C. Dean failed to introduce

any evidence to establish that abating the skylight hazard would have been more

hazardous than allowing Quinn to walk on the roof unprotected.

      M.C. Dean filed a petition for discretionary review with the Commission,

which was denied. M.C. Dean then filed the present petition for this Court’s

review.

                          II. STANDARD OF REVIEW

      Where the Commission does not direct review of an ALJ’s decision, the

ALJ’s findings become the Commission’s. See 29 U.S.C. § 661(j).


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      The Court’s review of Commission decisions is limited and highly

deferential. See Fluor Daniel v. Occupational Safety & Health Review Comm’n,

295 F.3d 1232, 1236 (11th Cir. 2002). The Court must sustain the Commission’s

fact-findings as long as they are “supported by substantial evidence on the record

considered as a whole.” 29 U.S.C. § 660(a). “Substantial evidence is more than a

scintilla and is such relevant evidence as a reasonable person would accept as

adequate to support a conclusion.” J.A.M. Builders, Inc. v. Herman, 233 F.3d

1350, 1352 (11th Cir. 2000) (internal quotation marks omitted). The

Commission’s legal determinations will be upheld unless “they are ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with [the] law.’”

Fluor Daniel, 295 F.3d at 1236 (quoting 5 U.S.C. § 706(2)(A)). The Commission

and the ALJ are bound to follow the law of the circuit to which a case will likely

be appealed. See Interstate Brands Corp., 20 BNA OSHC 1102, at *2 n.7 (No. 00-

1077, 2003).

                                III. DISCUSSION

      M.C. Dean challenges its citation for violating 29 C.F.R. § 1910.23(a)(4), a

standard which provides that “[e]very skylight floor opening and hole shall be

guarded by a standard skylight screen or a fixed standard railing on all exposed

sides.” See also 29 U.S.C. § 654(a)(2) (“Each employer . . . shall comply with

occupational safety and health standards promulgated under this chapter.”). To


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make a prima facie showing of a violation of an OSHA standard, the Secretary of

Labor must prove that: (1) the standard applies; (2) the employer failed to comply

with the terms of the standard; (3) employees had access to the violative condition;

and (4) the employer had actual or constructive knowledge of the violation.

Access Equip. Sys., Inc., 18 BNA OSHC 1718, at *3 (No. 95-1449, 1999).

      This appeal concerns only the fourth element. Specifically at issue is

whether M.C. Dean knew, or with the exercise of reasonable diligence could have

known, of the violative condition—that is, the unguarded skylights on the Ryder

facility’s roof. See Astra Pharm. Prods., 9 BNA OSHC 2126, at *4 (No. 78-6247,

1981). M.C. Dean argues that (1) the ALJ erred in imputing Boyd Young’s actual

or constructive knowledge to employer M.C. Dean, and (2) even if Young’s

knowledge could be imputed, Young had neither actual nor constructive

knowledge of the violative condition.

A.    Whether Boyd Young is a supervisor whose knowledge is imputable to

      employer M.C. Dean.

      Actual or constructive knowledge of a violative condition can be imputed to

the cited employer through a supervisory employee. Access Equip. Sys., 18 BNA

OSHC at *9. “It is well-settled that an employee who has been delegated authority

over other employees, even if only temporarily, is considered to be a supervisor for

the purposes of imputing knowledge to an employer.” Id. But “[i]t is the


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substance of the delegation of authority that is controlling, not the formal title of

the employee having this authority.” Id. (internal quotation marks omitted).

      M.C. Dean argues that Young’s designation as lead or field supervisor was

not substantive and endowed him with no authority over his coworkers. M.C.

Dean contends that Young’s designation only meant he coordinated the project, but

he otherwise lacked other indicia of supervisory authority, like the ability to

discipline employees.

      While the question is close, we conclude that the ALJ’s determination that

Young qualified as a supervisory employee was in accord with law and supported

by substantial evidence. The ALJ found, and we agree, that Young possessed

enough supervisory authority to qualify as a supervisor, most importantly the

authority to direct the work of the other team members. As the ALJ found: (1)

Young was the designated lead or field supervisor the day of the accident; (2)

Young controlled the “method and manner” in which the team performed the

assigned tasks, and maintained the ability to assign tasks to other employees; (3)

McGregor relied on Young to determine the tasks to be performed; (4) Young

served as M.C. Dean’s contact with Ryder and had the “latitude” to agree on

changes or modifications to the project; and (5) M.C. Dean’s Vice-President of

Safety, John Bennett, testified McGregor had to rely on Young as his “lead person”

to monitor safety at the worksite. The fact that Young lacked the ability to hire,


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fire, or discipline other employees is not dispositive. Thus, the ALJ’s

determination that Young was a supervisor whose knowledge of the violative

skylight condition could be imputed to employer M.C. Dean was not in error. Cf.,

e.g., Diamond Installations, Inc., 21 BNA OSHC 1688, at *1-2 (No. 02-2080,

2006) (concluding that an employee qualified as an imputable supervisor for a

forklift-related citation where the employee (1) was selected by the employer to

serve as gang foreman; (2) could direct the work of the crew members and instruct

an uncooperative employee to report to the general foreman; and (3) was

responsible for the operation of the forklift and was instructed not to give the key

to an unauthorized forklift operator); Access Equip. Sys., 18 BNA OSHA at *9-10

(concluding that employee was imputable supervisor where employee was “in

charge of” the two other employees onsite); Ga. Elec. Co. v. Marshall, 595 F.2d

309, 321 & n.29 (5th Cir. 1979) (finding sufficient evidence that boom truck

operator was an imputable supervisor as he was in charge of the pole crew and

decided which poles would be erected, and the employer’s designated supervisor

had several other crews to supervise and spent less than one-half hour a day with

the pole crew).

B.    Whether Young had constructive knowledge of the violative condition.

       M.C. Dean next claims that the ALJ erred in equating Young’s knowledge

that an employee was going up on the roof with the company’s knowledge that the


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employee would be exposed to a hazard. M.C. Dean argues that it was not

reasonably anticipated that any employee would be required to go on the roof to

perform work, and Quinn’s activities could have been completed without his ever

being exposed to the harm of going within six feet of an unguarded skylight.

      The Secretary does not argue that M.C. Dean had actual knowledge of the

skylight hazard. Thus, the issue is whether M.C. Dean through its supervisor Boyd

Young had constructive knowledge of the hazard. Constructive knowledge is

established “by showing that an employer could have known of the violative

conditions if it had exercised reasonable diligence.” Phoenix Roofing, Inc., 17

BNA OSHC 1076, at *4 (No. 90-2184, 1995).

      Here, the ALJ found that Young had constructive knowledge of the violative

condition and made findings that demonstrated Young’s constructive knowledge.

Those findings are supported by substantial evidence. The ALJ noted that while

the lack of guarding on the skylights was not apparent, the existence of the

skylights was. The M.C. Dean crew had worked within the Ryder facility for two

weeks and observed the skylights within the facility. Per OSHA’s regulations, a

skylight must “be guarded by a standard skylight screen or a fixed standard railing

on all exposed sides.” 29 C.F.R. § 1910.23(a)(4). Yet, when it was learned the

crew would have to access the roof, Young did not inquire as to whether the

skylights complied with that standard. While the facility did not belong to M.C.


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Dean, Young testified that erecting a temporary guardrail around the skylights

would not have been difficult to do. Young also conceded that skylights were a

unique hazard that should have been included in the pre-task planner.

       Young recognized the unique hazard presented by the skylights. And

Young, through the exercise of reasonable diligence, could have determined

whether the skylights were marked or guarded. Thus, Young had constructive

knowledge of the hazard. And as determined above, that constructive knowledge

may be imputed to M.C. Dean. Accordingly, we conclude that the ALJ’s fact-

findings are supported by substantial evidence and her legal determinations were in

accord with law when she found M.C. Dean had constructive knowledge of the

violative condition. 4

C.     M.C. Dean’s affirmative defenses.

       Finally, M.C. Dean argues that the ALJ erred in rejecting M.C. Dean’s
       4
          M.C. Dean primarily relies on the Fifth Circuit’s decision in Horne Plumbing & Heating
Co. v. Occupational Safety & Health Review Commission, 528 F.2d 564 (5th Cir. 1976), but that
case is materially distinguishable. In Horne, the journeyman-foreman’s knowledge of a violative
condition was not imputed to the employer who had done everything within its power to
guarantee the safety of its employees. Id. at 570. The Fifth Circuit noted that the employer had
an outstanding safety program, and that both men killed in the accident were experienced
foremen and journeymen plumbers that had understood the employer’s safety instructions. Id. at
566-67. Accordingly, the Fifth Circuit held that “on the facts of this case, it was error to find
[the employer] liable on an imputation theory for the unforeseeable, implausible, and therefore
unpreventable acts of his employees.” Id. at 571. Here, although M.C. Dean maintained a six-
foot fall protection rule, it did not maintain a roof access policy prior to this incident. Further,
that six-foot rule was ineffective in this situation where the color and texture of the corrugated
roof and the skylight panels were nearly identical so that the skylights were not readily visible
when on top of the roof. In these particular circumstances, we cannot say M.C. Dean did
everything within its power to guard against this particular hazard.


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affirmative defenses of infeasibility and greater hazard.

      M.C. Dean argues that the ALJ wrongly concluded that safety measures

suggested by the compliance officer, which the ALJ acknowledged would take

between two and five hours to set up, were not infeasible where it was undisputed

that Quinn’s entire on-the-roof exposure required no more than 15 to 20 minutes.

And the ALJ wrongly dismissed the alternative means of fall protection that was in

fact implemented: the six-foot rule. It was possible to access all the points

necessary on the roof for the job without coming within six feet of a skylight or

unprotected edge.

      To establish infeasibility, M.C. Dean must prove “(i) that compliance with a

particular standard either is impossible or will render performance of the work

impossible; and (ii) that it (the employer) undertook alternative steps to protect its

workers (or that no such steps were available).” Harry C. Crooker & Sons, Inc. v.

Occupational Safety & Health Review Comm’n, 537 F.3d 79, 82 (1st Cir. 2008);

see also, e.g., A.J. McNulty & Co., 19 BNA OSHC 1121, at *10 (No. 94-1758,

2000), petition for review denied, 284 F.3d 328 (D.C. Cir. 2002).

      M.C. Dean claims that compliance with the cited standard would have been

economically infeasible because compliance would have required work on the roof

between two and five hours, whereas Quinn was able to complete his work on the

roof in approximately 15 to 20 minutes. However, to prove economic infeasibility,


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M.C. Dean must show “that the increased length of time necessary would have had

a ‘severe adverse economic effect’ on the company.” Dayton Tire,

Bridgestone/Firestone, 23 BNA OSHC 1247, at *12 (No. 94-1374, 2010), aff’d in

part, vacated in part on other grounds, 671 F.3d 1249 (D.C. Cir. 2012); see also,

e.g., Crooker & Sons, 537 F.3d at 84 (rejecting infeasibility defense where, inter

alia, nothing in the record indicated that compliance with the OSHA standard

would “render the work so expensive as to become economically infeasible”).

Quite simply, M.C. Dean presented no evidence that compliance with the skylight

standard was impossible, would render performance of the work impossible, or

would cause severe financial hardship for the company.

      M.C. Dean argues that the six-foot rule constituted adequate alternative

protection. But such a rule could not constitute adequate protection in a situation

in which the fall hazards from which the employee had to maintain a distance of at

least six feet were not readily discernible. Thus, the Commission did not err in its

conclusion that M.C. Dean failed to carry its burden to establish the affirmative

defense of infeasibility.

      Finally, M.C. Dean’s last defense—that guarding the skylight presented a

greater hazard than allowing Quinn to work near the unguarded skylight—fails.

To establish the affirmative defense of greater hazard, the employer must prove

that: (1) the hazards of complying with the cited standard would have been greater


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than the hazards of noncompliance; (2) alternative means of protecting employees

were either used or were not available; and (3) a variance was unavailable or

inappropriate. E&R Erectors, Inc. v. Sec’y of Labor, 107 F.3d 157, 163 (3d Cir.

1997).

      In short, M.C. Dean presented no evidence that protecting against the hazard

presented a greater danger than allowing Quinn to walk on the roof unprotected.

Thus, the Commission properly rejected this defense.

                               IV. CONCLUSION

      For the foregoing reasons, we deny M.C. Dean’s petition for review and

affirm the Commission’s decision.

      AFFIRMED.




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