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                                                                    [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                    No. 14-12347
                              ________________________

                                  OSHC-0 : 12-1698



JOHN H. QUINLAN,
d.b.a. Quinlan Enterprises,
                                                                Petitioner,

                                        versus

SECRETARY, U.S. DEPARTMENT OF LABOR,

                                                               Respondent.

                              ________________________

                 Petition for Review from the Occupational Safety
                          and Health Review Commission
                           ________________________

                                   (January 8, 2016)

Before HULL, WILSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:
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       Quinlan Enterprises (“Quinlan”), a sole proprietorship that engages in steel

erection work, petitions for review of a final decision of the Occupational Safety

and Health Review Commission (“Commission”). The Commission held that

Quinlan violated standards under the Occupational Safety and Health Act

(“OSHA” or the “Act”), 29 U.S.C. §§ 651, et seq., when two of its employees, a

foreman and a subordinate employee, were caught working on a concrete block

wall and roof platform without fall protection and using a stepladder in an unsafe

manner. This appeal presents an issue of first impression in our circuit 1 left open

by our decision in ComTran Group, Inc. v. United States Department of Labor, 722

F.3d 1304 (11th Cir. 2013): Is it appropriate to impute a supervisor’s knowledge of

a subordinate employee’s violative conduct to his employer under the Act when

the supervisor himself is simultaneously involved in violative conduct? Upon close


       1
                The Secretary argues that this question is foreclosed by the decision of the former
Fifth Circuit in Floyd S. Pike Elec. Contractor, Inc. v. Occupational Safety and Health Review
Comm’n, 576 F.2d 72 (5th Cir. 1978). 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 October 1, 1981. We disagree with the Secretary’s reading of
Floyd. In that case, the former Fifth Circuit affirmed a decision of the Commission finding an
employer liable where a foreman and subordinate employee were both working in an unshored
trench that did not meet OSHA regulations. Id. at 76–77. However, the court did not rely on a
theory of imputed knowledge. Rather, the court applied the approach to proving the prima facie
element of employer knowledge presented in Brennan v. Butler Lime and Cement Co., 520 F.2d
1011, 1017 (7th Cir. 1975), in which the Seventh Circuit held that “an employer is responsible if
it knew or, with the exercise of reasonable diligence, should have known of the existence of a
serious violation.” See Floyd, 576 F.2d at 76 (quoting Brennan, 520 F.2d at 1017). That
approach to establishing the prima facie element of employer knowledge is distinct from an
approach that relies on the agency principle of imputed knowledge. Because the Floyd court did
not address the establishment of employer knowledge based on the agency principle of
imputation, the instant question is not foreclosed by the former Fifth Circuit’s Floyd decision.
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review of the record, briefs, and the relevant case law, and with the benefit of oral

argument, we answer the question presented in the affirmative. Therefore, we deny

the petition and affirm the Commission’s decision.

                                I. BACKGROUND
      A. The Underlying Incident and Citations

      In February 2012, Quinlan was engaged as the steel erection subcontractor at

a construction worksite at the Dougherty High School in Albany, Georgia. Kinney

Construction (“Kinney”) was the general contractor at the worksite. Kinney

subcontracted with Gerdau AmeriSteel, a company engaged in structural steel

fabrication, which then subcontracted to Quinlan. Quinlan has approximately thirty

employees, two of whom—Miguel Pacheco and Humberto Vargas—were working

at the Dougherty High School worksite on February 9, 2012.

      On February 9, Pacheco and Vargas were assigned to anchor clips inside the

building. This work involved installing plates or clips on a concrete block wall,

welding clips underneath beams on the roof, and putting in epoxy bolts. The same

day, an OSHA Compliance Safety and Health Officer initiated a scheduled on-site

inspection. The inspector observed and photographed Pacheco and Vargas working

on the edge of a 15-foot high concrete block wall without fall protection.

Additionally, the inspector observed a ladder that was not secured from slipping

when in the closed position. As a result of the inspection, the Secretary issued


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Quinlan a three-item Citation and Notification of Penalty on August 7, 2012. The

first item alleged a serious violation of 29 C.F.R. § 1926.501(b)(1).2 The third item

alleged a serious violation of 29 C.F.R. § 1926.1053(b)(4).3 The second item was

later vacated and is not relevant to this petition for review. The total amount of the

proposed penalties for the three alleged violations was $11,400.00.

       B. The ALJ and OSHRC Proceedings

       After a hearing, the taking of trial depositions, and the submission of post-

hearing briefs, Administrative Law Judge Sharon D. Calhoun issued a Decision

and Order on July 22, 2013. Sec’y of Labor v. Quinlan Enters., OSHRC Docket

No. 12-1698, 2013 WL 5505283, at *3–16 (Occupational Safety Health Review

Comm’n July 22, 2013). The ALJ Order affirmed Item 1 and 3 of the Citation and

assessed a total penalty of $7,200.00. Quinlan filed a petition for discretionary

review with the Commission on August 12, 2013, arguing that it was not liable for

any violation because Pacheco and Vargas were not Quinlan’s employees at the

time of exposure. After the ALJ Order was issued, this Court decided ComTran, in

which we held that “the Secretary does not carry her burden and establish a prima

facie case with respect to employer knowledge merely by demonstrating that a

       2
                29 C.F.R. §1926.501(b)(1) provides: “Unprotected sides and edges. Each
employee on a walking/working surface (horizontal and vertical surface) with an unprotected
side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling
by the use of guardrail systems, safety net systems, or personal fall arrest systems.”
       3
               29 C.F.R. §1926.1053(b)(4) provides: “Ladders shall be used only for the purpose
for which they were designed.”
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supervisor engaged in misconduct.” 722 F.3d at 1316. The ALJ Decision and

Order was then directed for review before the Commission and the Commission

issued a Remand Order to the ALJ to consider Quinlan’s arguments in his petition

for discretionary review as well as the applicability of this Court’s intervening

decision in ComTran to the two violations. Quinlan Enters., 24 BNA OSHC 1154

(No. 12-1698, 2013) (remand order).

      On remand from the Commission, Judge Calhoun made extensive findings

and concluded that Pacheco and Vargas were workers employed by Quinlan at the

time of the violations. Quinlan Enters., 24 BNA OSHC 2185, 2186–91 (No. 12-

1698, 2014) (decision and order on remand) (ALJ). The ALJ also distinguished

ComTran, stating that ComTran “only applies to scenarios where the supervisor is

acting alone” and not to situations where the supervisor has knowledge of

misconduct by his subordinates. Id. at 2192. Accordingly, the ALJ concluded that

ComTran did not alter the dispositions of the affirmed violations. Id. at 2193.

Quinlan again sought discretionary review from the Commission but was denied.

Thus, Judge Calhoun’s decision became a final order of the Commission on March

31, 2014. This petition for review followed.

                                 II. DISCUSSION

      This Court outlined the statutory and regulatory scheme underlying

violations of OSHA standards in ComTran, 722 F.3d at 1306–08. As we described:


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      Under the law of our circuit, the Secretary will make out a prima facie case
      for the violation of an OSHA standard by showing (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 Act’s requirements.

Id. at 1307. This appeal concerns only the third and fourth elements of the prima

facie case.

      To satisfy the third element, the Secretary bears the burden of showing that

the cited respondent is the employer of the exposed workers at the site. The Act

defines employee as follows: “Employee means an employee of an employer who

is employed in a business of his employer which affects commerce.” 29 U.S.C. §

652(6). In determining whether the Secretary has satisfied its burden, the

Commission applies the control-based test set forth in Nationwide Mutual

Insurance Co. v. Darden, 503 U.S. 318 (1992):

      To decide whether the party in question was an employer under common
      law, the Darden Court looked primarily to the hiring party’s right to “control
      the manner and means by which the product [was] accomplished.” Factors
      pertinent to that issue include “the skill required for the job, the source of the
      instrumentalities and tools, the location of the work, the duration of the
      relationship between the parties, whether the hiring party has the right to
      assign additional projects to the hired party, the extent of the hired party’s
      discretion over when and how long to work, the method of payment, the
      hired party’s role in hiring and paying assistants, whether the work is part of
      the regular business of the hiring party, whether the hiring party is in
      business, the provision of employee benefits and the tax treatment of the
      hired party.” Darden, 503 U.S. at 322, citing Community for Creative Non-
      Violence v. Reid, 490 U.S. 730 (1989). While no single factor under Darden
      is determinative, the primary focus is whether the putative employer controls
      the workers.

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Quinlan Enters., 24 BNA OSHC 2185, 2190–91 (No. 12-1698, 2014) (ALJ)

(decision and order on remand) (citing Allstate Painting & Contracting Co., 21

BNA OSHC 1033, 1035 (No. 97-1631 & 97-1727, 2005)). As the Supreme Court

has summarized, the “principal guidepost” in the Darden test is the “extent of

control” the employer exercises over the employee. Clackamas Gastroenterology

Assoc., P.C. v. Wells, 538 U.S. 440, 448 (2003). Three other circuits have affirmed

the application of the Darden test to OSHA violations. See Slingluff v.

Occupational Safety & Health Review Comm'n, 425 F.3d 861, 867–69 (10th Cir.

2005); IBP, Inc. v. Herman, 144 F.3d 861, 865 (D.C. Cir. 1998); Loomis Cabinet

Co. v. Occupational Safety and Health Review Comm'n, 20 F.3d 938, 941–42 (9th

Cir. 1994). One circuit has ruled that Darden’s reasoning is not directly applicable

to the Act. See Sec’y of Labor v. Trinity Indus., Inc., 504 F.3d 397, 402 (3d Cir.

2007) (“[Darden] was decided under ERISA and has no impact on the question of

whether the scope of the OSH Act is broad enough to cover workers who are not

employees under the common law definition.”). The parties here assume in their

briefs that the Darden test applies. Therefore, we apply the Darden test here

without deciding explicitly whether the Commission’s interpretation of 29 U.S.C. §

652(6) is permissible.




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         To satisfy the fourth element of a prima facie case, the Secretary must prove

the employer had knowledge of the violation. As we described in ComTran, the

Secretary may do this in two different ways:

         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. . . . An example of actual knowledge is where a
         supervisor directly sees a subordinate’s misconduct. . . . An example of
         constructive knowledge is where the supervisor may not have directly seen
         the subordinate’s misconduct, but he was in close enough proximity that he
         should have. . . . 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.

Comtran, 722 F.3d at 1307–08 (citations omitted). In this case, only the first way

of proving employer knowledge—imputing knowledge from a supervisor—is at

issue.

         Appeals from final decisions of the Commission are reviewed directly by the

courts of appeals. 29 U.S.C. § 660(a). On review, Commission decisions are

entitled to considerable deference. The Commission’s findings of fact must be

upheld if they are “supported by substantial evidence on the record considered as a

whole.” Id. at 1307. We have held that “[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.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th

Cir. 1997) (citing Richardson v. Perales, 402 U.S. 389, 401 (1979)). The

Commission’s conclusions of law, meanwhile, must be upheld as long as they are
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not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with the law.” 5 U.S.C. § 706(2)(A). The Commission and its ALJs are bound to

follow the law of the circuit to which the case would most likely be appealed.

ComTran, 722 F.3d at 1307.

      With the foregoing standards of review in mind, we will now turn to the

arguments in this particular case.

      In his petition for review, Quinlan makes three arguments. First, Quinlan

argues that the Commission erred in finding that Pacheco and Vargas were

employees of Quinlan at the time of the exposure. Second, Quinlan argues that the

Commission erred in finding that Pacheco was a supervisor. Third, Quinlan argues

that our recent decision in ComTran bars the imputation of Pacheco’s knowledge

of Vargas’ violative misconduct to Quinlan because Pacheco was simultaneously

involved in violative misconduct. In light of the highly deferential standard for

reviewing Commission decisions, and based on our review of the record, Quinlan’s

arguments cannot succeed.

     A.      Pacheco and Vargas Were Employees of Quinlan at the Time of
Exposure

      There is ample evidence to support the Commission’s finding of fact that, at

the relevant time, Pacheco and Vargas were employees of Quinlan and not of

Kinney. The Commission made findings with respect to the relevant Darden



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factors and concluded that, at the relevant time, “Quinlan had every indicia of

control over Pacheco and Vargas.” Id. at 2191.

      The only non-frivolous aspect of Quinlan’s challenge to the Commission’s

finding that Pacheco and Vargas were Quinlan employees is the argument that, at

the direction of Charles Hall (Kinney’s superintendent), Pacheco and Vargas

performed work for Kinney, and, therefore Pacheco and Vargas temporarily

became Kinney employees rather than Quinlan employees. Contrary to Quinlan’s

argument, there is ample evidence to support the Commission’s finding that

Charles Hall did not commandeer Pacheco and Vargas to work for Kinney. The

evidence is somewhat closer with respect to the Commission’s determination that

the weight of the evidence failed to establish that the work Pacheco and Vargas

were engaged in at the time of the inspection was outside the scope of Quinlan’s

contract. Id. In this regard, we are not persuaded that Quinlan has demonstrated

that the Commission’s finding lacks substantial supporting evidence. The strongest

evidence presented by Quinlan was the testimony of Quinlan himself and the

testimony of Hanniford. Both were discredited by the Commission. Supporting the

Commission’s finding is the fact that Pacheco, Quinlan’s supervisor on the scene,

apparently thought he had authority to perform the work and that the work was

Quinlan’s. Moreover, even if the work were technically outside the scope of

Quinlan’s contract, it is clear that the work was closely related to, even if not

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actually within, the technical confines of the contractual scope of work. Quinlan

cites no authority for the proposition that such a minor deviation from the

contractual scope of work would operate to destroy the clear employment

relationship between Quinlan and its two employees.

      Even if the work were not technically within Quinlan’s contractual

responsibilities, we believe that, as a matter of agency principles and as a matter of

common sense, Pacheco, as Quinlan’s supervisor on the site, would have authority

to make such minor deviations in order to cooperate with the general contractor.

This would be in the employer’s best interest as a matter of common sense, and

Quinlan never specifically instructed its employees on how to interact with the

general contractor on the work site.

      For the foregoing reasons, we reject Quinlan’s challenge to the

Commission’s finding of fact that, at the relevant time, Pacheco and Vargas were

employees of Quinlan.

      B.     Pacheco Was a Supervisor at the Time of Exposure

      Similarly, we reject Quinlan’s challenge to the Commission’s finding of fact

that, at the relevant time, Pacheco was a supervisor on the site on behalf of

Quinlan. Quinlan Enters., 24 BNA OSHC at 2192 n.1. As the Commission

indicated, the evidence that Pacheco was Quinlan’s supervisor on that day was




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“overwhelming.” Id. Quinlan’s challenge to that fact finding is wholly without

merit and thus is summarily rejected.

     C.    Imputation of a Supervisor’s Knowledge of a Subordinate Employee’s
Misconduct when Supervisor is Simultaneously Involved in Misconduct.

      We turn now to Quinlan’s argument that the Commission erred by

misapplying our decision in ComTran.

      In ComTran, this Court reviewed a decision of the Commission finding that

ComTran Group, a communications utilities company, violated the Act when one

of its foremen was caught digging in a six-foot deep trench with an unprotected

five-foot high spoil pile at the edge of the excavation. Comtran, 722 F.3d at 1308–

09. ComTran conceded its foreman had violated the cited standards but asserted

that the foreman’s “rogue” misconduct could not be attributed to ComTran because

the Secretary had failed to show that ComTran had knowledge of the violation.

The Commission disagreed, finding that ComTran had knowledge of the violated

standards by way of imputation. 4 Because the foreman had actual knowledge of the

excavation and spoil pile—the foreman himself had dug the excavation and placed

the spoil pile at its edge—and because the foreman was a supervisory employee,

the Commission imputed the foreman’s knowledge of his own violative conduct to

ComTran and thereby found the Secretary had satisfied her burden of proving


      4
            As in this case, the ALJ’s order in ComTran became a final decision of the
Commission when the Commission denied discretionary review. See Comtran, 722 F.3d at 1311.
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employer knowledge. ComTran Grp., Inc., 23 BNA OSHC 2143, 2148 (No. 11-

0646, 2011) (ALJ).

      On petition for review, we reversed the Commission. We acknowledged that

in the “ordinary case”—in which the Secretary proves that a supervisor had actual

or constructive knowledge of a subordinate employee’s violation—the general rule

is that the knowledge of the supervisor is imputed to the employer. See Comtran,

722 F.3d at 1307–08 & n.2. However, we carved out an exception to the general

rule where the supervisor himself is the one who engaged in the conduct that

violated the Act and the issue is whether to impute to the employer the supervisor’s

knowledge of his own misconduct. See id. at 1316. In that situation, we held that

“the Secretary does not carry her burden and establish a prima facie case with

respect to employer knowledge merely by demonstrating that a supervisor engaged

in misconduct.” Id. Rather, in the situation where the supervisor’s knowledge is of

his own conduct in violation of the Act, “employer knowledge must be established,

not vicariously through the violator’s knowledge, but by either the employer’s

actual knowledge, or by its constructive knowledge based on the fact that the

employer could, under the circumstances of the case, foresee the unsafe conduct of

the supervisor [that is, with evidence of lax safety standards].” Id. (citing W.G.

Yates & Sons Constr. Co., Inc. v. OSHRC, 459 F.3d 604 (5th Cir. 2006)). We

reasoned that to impute the supervisor’s knowledge in such a circumstance would

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be “fundamentally unfair” because it would release the Secretary from her burden

of proving employer knowledge. Id. at 1317. Such a result, we held, “would be

arbitrary, capricious, and not in accordance with the law.” Id. at 1318. 5

       In the instant case, Quinlan argues that our holding in ComTran should be

extended to prevent the imputation of a supervisor’s knowledge of a subordinate

employee’s violative conduct to his employer when the supervisor is

simultaneously involved in the same violative misconduct. In such a situation,

Quinlan argues, the employer loses his “eyes and ears” and the supervisor’s

knowledge should not be imputed, regardless of whether the relevant knowledge is

knowledge of his own conduct or knowledge of a subordinate employee’s conduct.

       Quinlan relies heavily on L.R. Willson & Sons, Inc. v. OSHRC, 134 F.3d

1235 (4th Cir. 1998). There, the Fourth Circuit addressed a violation in which the

underlying facts involved both a supervisor (Manley) and a subordinate employee

(McVay) who were observed working on structural steel more than 80 feet above

the ground without the fall protection required by regulation. Id. at 1237. The

Commission affirmed a violation based on the theory that “[i]n establishing that an


       5
                Our holding in ComTran effectively shifts to the Secretary an obligation to prove
employer knowledge in a manner that “closely mirror[s]” what an employer (in the ordinary case
where supervisor knowledge of a subordinate employee’s misconduct is imputed) would
ordinarily have to prove to make the affirmative defense of unforeseen employee misconduct –
e.g., prove that the employee misconduct was not foreseeable and was not preventable. See
Yates, 459 F.3d at 609 n.7.


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employer knew of the Act’s requirements and knowingly disregarded them, the

knowledge and conduct of a supervisory employee may be imputed to the

employer.” L.R. Willson & Sons, Inc., 17 BNA OSHC 2059, 2063 (No. 94-1546,

1997). On petition for review, the Fourth Circuit reversed the Commission’s

decision because imputing a supervisor’s knowledge of his own violation

impermissibly relieved the Secretary of her burden of proving the prima facie case

and shifted the burden of proof to the company. L.R. Willson, 134 F.3d at 1240–

41. In so holding, it is not clear whether the opinion of the Fourth Circuit actually

addressed and decided whether a supervisor’s knowledge of a subordinate’s

conduct may be imputed when the supervisor and subordinate are simultaneously

involved in violative conduct. The opinion appears to refer to the issue when it

says:

        The Secretary contends that Ocean Electric should not apply here, as
        Manley was accompanied by McVay, who was not a supervisory
        employee. However, in so doing the Secretary ignores the fact that the
        ALJ in this case found the prima facie case of a violation because of
        Manley’s status, and then placed on Willson the burden of rebutting
        with the “affirmative defense” of employee misconduct, and the
        Commission affirmed.

Id. at 1240 n.28. In other words, the Fourth Circuit may have declined to address

the issue because the ALJ and the Commission shifted the burden of proof merely

“because of Manley’s status.” In any event, it is not clear whether the Fourth

Circuit understood the force of the distinction between a supervisor acting alone in

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violation of the Act and a supervisor engaging in that misconduct while

simultaneously supervising a subordinate who is also engaged in such misconduct.

To the extent that the Fourth Circuit’s decision is inconsistent with our holding

today, we decline to follow it because it contains little or no analysis and therefore

carries little persuasive weight.6 For the reasons that follow, we believe that the

general rule should apply in this case—i.e., that the knowledge of a supervisor of a

subordinate employee’s violation should be imputed to the employer.

       In our view, the situation with respect to the non-supervisory subordinate

employee in this case is analogous to the ordinary situation in which imputation is

clearly established. The classic situation in which knowledge of a supervisor is

imputed to an employer is when the supervisor is on the scene looking on, sees the

subordinate employee violating a safety rule, knows there is such a violation, but


6
         Other cases cited by the parties as involving underlying facts of a supervisor and a
subordinate employee engaging in simultaneous misconduct are inapposite. As noted above, the
former Fifth Circuit case of Floyd S. Pike did not rely on the theory of imputed knowledge. The
Fifth Circuit case of W. G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604 (5th Cir. 2006),
involved a foreman engaged in one violation and two subordinate employees simultaneously
engaged in a different violation. However, the employer appealed to the Fifth Circuit only the
violation involving the foreman. The Fifth Circuit made no ruling with respect to the violation
involving the two subordinate employees, and made no ruling with respect to the issue before us.
However, dicta in Yates indicates that the situation of the two subordinate employees
simultaneously engaging in the slightly different violation in the presence of the foreman would
constitute the “ordinary context” in which the foreman’s knowledge of the two subordinate
employees’ slightly different violation would be imputed to the employer, and thus the burden
would properly be on “the employer to establish its affirmative defense of unforeseen employee
misconduct.” Id. at 609 n.7. Our ComTran opinion cited with approval this very footnote 7 of
the Yates opinion. ComTran, 722 F.3d at 1308 n.2.


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nonetheless allows it to continue. We see little difference in principle between that

classic situation in which knowledge is imputed and the instant situation involving

supervisor Pacheco and subordinate Vargas. In both cases, the supervisor sees the

violation by the subordinate, knows there is a violation, but disregards the safety

rule for one reason or another. We see little or no difference between the classic

situation in which the supervisor sees the violation by the subordinate and

disregards the safety rule, for example to expedite the job; and the instant situation

in which the supervisor sees the violation and pitches in and works beside the

subordinate to expedite the job.

      The instant case is unlike the situation in ComTran involving a supervisor’s

knowledge of his own misconduct. In that circumstance, imputation was improper

and unfair because it had the effect of relieving the Secretary of her burden of

proving employer knowledge. “[I]f the Secretary is permitted to establish employer

knowledge solely with proof of the supervisor's misconduct—notwithstanding that

the employer did not know, and could not have known, of that misconduct—then

the Secretary would not really have to establish knowledge at all. The mere fact of

the violation itself (element 2) would satisfy the knowledge prong (element 4).”

ComTran, 722 F.3d at 1317. In contrast, the situation here involving a supervisor

and a subordinate employee who are simultaneously involved in violative

misconduct does not present the same problem. Proof of the subordinate

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employee’s misconduct does not by itself prove employer knowledge of such. The

Secretary still bears the burden of proving employer knowledge, whether through a

supervisor’s actual or constructive knowledge of the subordinate employee’s

misconduct or through the employer’s actual or constructive knowledge of the

subordinate employee’s misconduct, for example, by failure to implement an

adequate safety program. Here, the Secretary carried that burden by proving that

supervisor Pacheco had actual knowledge of subordinate employee Vargas’

violative misconduct. Thus, the “fairness” concern which was at issue in the

ComTran case is not present in the instant situation.

      Indeed, we believe there is dicta in the ComTran opinion itself which

supports our holding:

      We say that a supervisor’s knowledge is “generally imputed to the
      employer” because that is the outcome in the ordinary case. The
      “ordinary case,” however, is where the supervisor knew or should
      have known that the subordinate employees were engaged in
      misconduct.

Id. at 1308 n.2; see also id. at 1317 (drawing a “distinction between a supervisor’s

knowledge of a subordinate’s misconduct (which everyone agrees is imputable to

the employer) and knowledge of his own misconduct (which a clear majority of

circuits have held is not [imputed]”)). Indeed, ComTran, in this same footnote 2 at

page 1308, cited with approval footnote 7 of the Fifth Circuit Yates opinion as

noting an example of the “ordinary case.” Yates, 459 F.3d at 609 n.7. In that

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footnote 7, the Yates opinion stated in dicta that the violation that was not appealed

to the Fifth Circuit—i.e., the simultaneous violation by the two subordinate

employees in the presence of the foreman—would constitute the “ordinary

context” in which the “supervisor’s knowledge . . . is imputable.” The only

difference between the facts underlying the instant case and the violation which the

Yates dicta said would be imputed is that the violation of the two subordinates in

Yates was slightly different from the simultaneous violation of their foreman,

whereas the violation of foreman Pacheco in our case was identical to the violation

of Vargas. However, we can perceive no difference in principle between the two

situations. Although dicta, we believe ComTran’s citation with approval of

footnote 7 of the Yates opinion is an indication that the ComTran panel did not

contemplate an extension of its holding to the very different situation in this case.

      We conclude that the instant situation is more like the “ordinary case” than

like the exceptional case addressed in ComTran. As noted above, there is little or

no difference between this case and the classic case in “which everyone agrees

[knowledge] is imputable to the employer.” ComTran, 722 F.3d at 1317. In both

situations, the employer has “entrust[ed] to a supervisory employee its duty to

assure employee compliance with safety standards.” Id. (citation omitted).

Moreover, application to the instant facts of the established rule is entirely

consistent with well-established agency principles. Quinlan has not suggested, nor

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could it, that Pacheco’s disregard of Quinlan’s safety rules disrupted his agency

relationship with Quinlan.

      For the foregoing reasons, Quinlan has failed to persuade us that the

exception to the general rule of imputation we carved out in ComTran should be

expanded to encompass the instant situation.

                                III. CONCLUSION

      For the reasons stated above, we conclude that the Commission’s findings of

fact were supported by substantial evidence on the record considered as a whole

and the Commission’s conclusions of law were not arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with the law. Therefore, we deny the

petition and affirm the Commission’s decision.

      AFFIRMED.




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