To sustain a citation, OSHA must prove four elements: (1) the cited standard applies, (2) there was a failure to comply with the standard, (3) employees had access to the violative condition, and (4) the employer knew or could have, with the exercise of reasonable diligence, known of the condition.
In TNT Crane & Rigging, the employer challenged two of the four elements on each of the two citation items OSHA charged after an accident in which an employee was seriously injured from contact with a high voltage electric line. The administrative law judge who initially heard the case agreed with TNT that the cited standard did not apply. The Commission reversed the judge and sent the case back for hearing. The ALJ subsequently found that TNT lacked knowledge of the violative condition. On appeal the Commission again disagreed with the judge. The Commission also found that TNT had failed to sustain an affirmative defense of unpreventable employee misconduct.
The case has now been appealed to the U.S. Court of Appeals for the Fifth Circuit. The case raises several interesting and important OSHA law issues.
First, on the issue of applicability of the cited standard, TNT argued that the cited standards are found in a paragraph of the construction crane standard (29 C.F.R. 1926.1407) which addresses precautions during crane assembly and disassembly, and that TNT’s crew was not disassembling the crane when the accident occurred.
At the time of the accident, the 4-person crew was lowering the boom of a mobile crane which had been used for installing new antennas on a communications tower. The boom was being lowered in order to lay on a flat-bed trailer, prior to removing extensions. While the boom was being lowered, one of the crew members was assigned to keep the hoist line taught. He was seriously injured when the hoist line contacted a 14,400 volt power line during the operation.
TNT argued that that operation involved was not disassembly, because the accident occurred while the boom was being lowered and before the crew had begun to physically disassemble the crane. The Commission disagreed, finding that the “text and structure of the crane standard makes clear that the meaning of disassembly is not limited to the time during which crane components are being physically separated.” Even if the standard was ambiguous, the Commission wrote, the Secretary’s interpretation was reasonable and entitled to deference.
The Commission also reversed the administrative law judge on the issue of employer knowledge. Proof of employer knowledge may, in general, be shown by the knowledge of a supervisor, whose knowledge and/or involvement in the violation is imputed to the employer as the employer’s agent. However, a few courts of appeals, notably the 5th Circuit and the 11th Circuit, have made an exception to the general rule that a supervisor’s knowledge is imputed to the employer where the supervisor himself or herself is the employee involved in the violative activity or conduct. In a situation of such “supervisor misconduct,” these courts have said, to use the supervisor’s misconduct to prove employer knowledge would essentially create a strict liability regime. Thus, in supervisor misconduct cases, these courts of appeals have required OSHA to show that the supervisor’s misconduct was “reasonably foreseeable” due to the employer’s inadequate work rules, training, or enforcement.
But there is an exception to the exception. If the supervisor is acting as a supervisor, that is, the supervisor knows of or directs or authorizes a subordinate in the violative actions, or working in violative conditions, both the 5th Circuit and 11th Circuit have held that the supervisor’s knowledge may be imputed to the employer without the need for OSHA to show that the supervisor’s actions were reasonably foreseeable.
In TNT, the supervisor was part of the 4-person crew involved in lowering, and ultimately removing the crane from the worksite. The plan for breaking the crane down was decided upon and agreed upon and executed by all four crew members. The Commission found that the violation was the result of “collective failures” by the crew. “Because we find that TNT’s entire crew collectively engaged in the violative conduct alleged in each citation item, the supervisor’s knowledge of the other crew members’ conduct is imputed to TNT without a showing of foreseeability.”
TNT also argued that the violations were the result of the crew’s unpreventable employee misconduct. In order to prove the defense of unpreventable employee misconduct, the employer must establish that (1) it had work rules in place to prevent the violative conditions, (2) it adequately communicated the rules to its employees, (3) it took steps to discover violations of the work rules, and (4) effectively enforced the rules when violations were discovered.
The Commission rejected TNT’s defense, and its discussion and reasons for rejecting TNT’s argument of unpreventable employee misconduct is instructive in terms of the documentation and records employers should maintain in order to be able to support the defense. The Commission evaluated each of the two citation items separately against the four factors needed to support the defense. Regarding the first citation item, the Commission found that TNT’s work rules were not sufficiently specific to the requirements of the standard, and therefore were inadequate. Regarding the second citation item, the Commission said the work rules were sufficient, but TNT did not show that it sufficiently monitored for compliance or effectively enforced the work rules. After the accident TNT had disciplined the supervisor on site, but it did not have record of any previous discipline for violating its power line safety rules. The Commission said it was unlikely, given TNT’s size and number of employees, that there had not been any previous violation of the rules.