all right good morning counsel morning welcome  that they cite the company because one second was working outside the trench they cited the company because there was an employee namely find secor working in an unprotected trench your own ok so that's that's where and look i think it's an interesting and maybe a difficult question to our sat exactly what needs what that exception means and how broad it is and i would be inclined to agree with you more if we were talking about citing he dol for something he himself  would be held responsible for violations that could have prevented that the act is designed to ensure worker safety only sort of or is possible and that the importers duty must be an achievable one and so based on mat the same policy implications apply in this situation and should control the result and i would direct you to the case from the th circuit capital of electric land builders imap case the company was cited because violation occurred when the employee work without the proper equipment thrust is that the violation occurred because of the supervisors or to provide adequate supervised supervision and warnings and so based on that record held a not complying behavior is the supervisors own because had the supervisor properly instructed the employee and in this case had the supervisor properly done what he had been directed in trying to  not wearing that it was all protection but we upheld the violations for his the people he was supervising that he saw he was there he was the supervisor knew that was going on how do you distinguish be a big big factor because you know have a court of value weighted by a it's possible that you know the score could have come to a different conclusion but what you i think need to look at a bit how in the deep south crane reading cases from this this court in both cases the court ended up concluding that the doctor was not applicable but not because it related to the supervisor exposing a had never alleged that the supervisor at issue in this case was responsible for creating the hazard the employee was exposed so here are the only reason there was a hazard in the st place was because big al chose not to that fact you just said but al directives and such get it to commit the violation basically by going into the trench i mean the commission this is really a factual dispute where you're saying he was orphan nd was ordered to do  dow directed funds that go to do this now we've done your honor because the bottom line is that the doubt was the supervisor he was the foreman on the project he had most training and was responsible for the safety of the individuals working on that  and the fact that even if he just authorized them you know this isn't a situation where there was a he was sitting by passively and just observed an employee in the trench and did nothing about  actually whether you take our position that he directed funds nd to get in the trench or that they discussed it and then he said ok i'm going to you know i think you i think you should get in the trench had he not approved  bell told him and that's why the decision was made ok we're going to punish the person who's at fault not the unwitting subordinate who was just following directions from his from his supervisor the bottom this type of this type of work site this type of violations one would gates not cover yet certainly only comes into play when their supervisor misconduct you know that's that is this is a circumstance that truly rarely happens i've never had a case intil now where the facts should have bet the supervisor directly instructed or directly approved as opposed to just viewing you know that would not that would not be a situation that's not a unique situation your honor and you know there's the ordinary case which is ninety nine percent of the cases in this context where a subordinate engages in  based on my reading of it interplast when the supervisor engages in malfeasance and creates a hazard whether he is the only one exposed to it or his subordinates are because he engaged in  he made a decision that he knows to be incorrect that he knows to be contrary to his training and that he knows to be contrary to the directions that he and he's been provided so it seems like it is it has agency principles backward i mean in the normal we're looking at vicarious liability for an employer to take sexual harassment to get a lot of cases you know it's much easier to prove that by carious liability when the supervisor is the harasser as opposed to just a regular line worker s it's not it seems like it's it seems like the company should be more culpable when the supervisor is actively directing an underlings violation but when your or your honor i would disagree with that simply because the policies underlying osha say that the responsibilities of the employer should be reasonable should try to ensure employee safety so far as possible and saying would you would be responsible if not fun nd acted alone and the hazard was not created by the actual supervisor who either directed him or expressly authorized him to do something that he knew was was totally contrary to his training and everything else then then yes i would agree that you know fine seka is the is the is the issue here in the company would have addressed it differently because that and that's what i'm saying is odd it's which you were just addressing in this case i mean well frankly there are no bedrock principles of the there is a principle of agency principle principle agent but there are numerous exceptions but you know there are so many exceptions and you know one of them is acting had burst of the company's interest in this case given his training given the instructions provided i would propose that the ballot was acting contrary to the company's interest you know they  they're trying to insure safety as best as possible and they do so by training and inspecting the excavation job sites on a daily basis at least four days good morning your orders may have please the court and always bats for the secretary of labor the primary issue in this case is whether the supervisors knowledge of the subordinates unsafe conduct isn't cuticle to the employer so i'll start there this court is always applying the ordinary imputation rule in cases like this one where the supervisor is aware that is important it has engaged in unsafe combat because kalbarri corporation in southern hands the ordinary application of agency law in the osha context serves the critical purpose of holding employers responsible for their duty under the arch act to ensure the safety of subordinate employees even when they delegate that duty to an onsite supervisor and the rule incentivizes employers to put the most responsible supervisors in charge of employees safety because the employer will be held accountable the supervisor shirks that duty under the object to keep those aboard an employee safe and at that point the burden shifts to the employer to prove that the violation wasn't preventable but angel would have this court brought in the exception to encompass every case in which a supervisor participates in the my lesion and that would be about that would be a departure from that circuit precedent well they would  so that would be an expansion of yates and that would expand he needs to his include every situation in which a supervisor essentially participates in the violation so the only cases that w for the supervisor sort of happens upon a violation so i'm hearing the worst the supervisor behaves the harder it is for the secretary to establish the violation and that really conflicts with the whole purpose of which is to hold the employer responsible for the actions of the supervisor at the employer's delegated its duty under the architect to ensure the safe working conditions of subordinates counsel opposite  cases so in deep south that case was pretty much on all fours with yates and that he's the violation was the supervisor's failure to ensure that a crane operator was qualified to operate the crane so it wasn't he's run a violation was unsafe operation of the crane for example and the supervisor knew or authorized that the violation was actually the supervisor's own failure to case where this court declines to apply needs even aware of a supervisor ordered a subordinate to do something unsafe so in that case a supervisor wrote a work order or instructing a subordinate  electrical work on an elevated platform with a murdered floor openings the supervisor knew about the art and floor openings when it rolled the work when he wrote the work order the subordinate didn't and when he saw the work order he went out on the platform beautician rule in that case it is directly directly conflicts with the th circuit holding and capital electric that was the case that opposing counsel filed in a twenty eight jail letter last week in that case the court the test circuit in capital electric declines to impute to supervisors constructive knowledge of his subordinates failure to use the proper equipment  in southern hen's this court did impute the supervisors knowledge in that case and that was a published decision and that case the supervisor failed to adequately supervise a subordinate employee who was doing something unsafe cleaning the outside of a piece of equipment without locking it out this court as a matter of course imputed the supervisor's constructive knowledge to the employer and at that point the burden shifted to the employer to defend itself as an affirmative defense by proving that the violation was on preventable yet despite the fact that the reasoning in the us decision and the recent president establishes that the ordinary imputation rule should apply in this case angel is asking us court to expand yates unfair about holding the employer responsible when it tasked with the supervisor the duty of keeping subordinates safe and the supervisor shirts that duty that's just basic agency law and your agents in joules theory the worse the supervisor behaves the harder it is to establish a violation but under this court's precedent in slightest hike the participation of a supervisor d in a violation actually demonstrates the opposite the employer safety program wasn't good enough to prevent the violation and because a supervisor said an example at the workplace the employer has if anything quote heightens duty to ensure that supervisors are following companies a few holes not aware that the subordinate was doing something unsafe the court will need to do you want to you know do the supervisor happen upon the violation or authorize it or condone it or direct it or order it recent examples knowingly allows a subordinate to engage in unsafe conduct it doesn't make any sense to hold the employer less responsible where the supervisor actively participate in the violation but that's what angel brothers is asking this court to do safety turning to the nd issue regardless of whether the secretary has the burden of proving that the violations unforseen able as angel argues or whether the burden shifts to the employer to prove that the violation was unpreventable the same for protest a wise and the fork wrong is not met here although the commission determined that the employer had trenching c q rules a training program and that it monitored the work site for violations the commission correctly concluded that angel brothers did not effectively enforce its safety rules when it was always violated and under the substantial evidence standard purview of the question for this court is whether substantial evidence in the record supports a determination whether reasonable lying to conclude on his record that angel brothers did not effectively enforce its safety rules so the thrust of this inquiry under the th prong the one that's missing here is whether employees had reason to believe at the time of the buy a lesion that they would be evidence of my lesions discovered during oceans directions i'm sorry evidence of post inspection discipline is only relevant when considered in conjunction with pretty inspection discipline and despite the fact that in two brothers or the burden of proof on tillman alone there is no evidence in the record that angel brothers as ever disciplined an employee outside the context of an ocean inspection so there is no evidence in the record to establish that this element  fact is that angel brothers did issue written discipline for the two instances of disciplinary volved in ocean's actions so it must keep written records when it does oppose employees and it more than we're going to prove below but it did not produce any evidence of any discipline against any other employees and angels claim that its employees just don't commit trenching violations when osha isn't there to discover law which is essentially the thrust of their argument  cited five times in five years for violating the same standard two of their prior safety sions were repeat one of them was well full the present my lesion was willful a company can't even demonstrate that it disciplined all of the employees involved in those prior violations and only has evidence of one instance of discipline against one employee and even in this case the company didn't discipline the employee who engaged in the u violation of the management chain and nd of all the lack of discipline of mr fonseca actually sends the message to subordinate employees that their freedom i only see few rolls when their supervisor tells them they should just like in the floyd as a case the company's safety program was quote inadequate to prevent crew members from following her foreman's poor example close quote because supervisors are supposed to be an example for responsible behavior not a shield against osha liability or a defense to discipline for violating safety rules the fact that the supervisor authorized the violation shouldn't excuse the lack of discipline against the subordinate and for all of these reasons whichever party bears the burden of proof angels responsible for the violation turning to the last issue the violation was properly classified as well full of violation is willful where the company has a heightened awareness of the requirements and either consciously just regards the osha standard or exhibits a plain indifference to employees safety there's no question that the company had a heightened awareness year because they had two prior repeats and one prior willful violation of the very same standard it's an excavation company and mr pradelle admitted that he will fully violated the standard he consciously disregarded the standard to get the work out faster and exhibit a plane indifference to employees safety by allowing mr from nd to enter the unprotected trench mr in the secretary's brief and that is you know all the elements are met however in that particular case there was evidence that the employer safety program was not feasible and therefore it was not adequate  for the court declined to apply yates and found that it was foreseeable additionally in the deep south crane rigging case that was was mentioned a moment ago they you know it was a situation where the supervisor failed t from militarize the employee with the crime so in this case the court held that the instructions were not sufficient sufficiently definite to communicate to the supervisor the need to fully trained and qualified the employee and it was forseeable for the supervisor applied to the doctrine if you know the right facts we have unlike intel and there is direct evidence that the only reason there was a hazard is because of the dallas actions number one and in deep south running rigging the rules in direct instructions from the field safety manager mr bennet the day before could not have been more clear this is the case that i think the must be piled upon itself evidence must be ignored and unwarranted assumptions must be mad and i say that because the commission as well as the secretary disregards much of the testimony by brad or  what the secretary contends is that the secretary insists that ok in order to establish that you actually discipline anybody you have to present documentary evidence whether it relates to this particular issue  ere we're in court or something else that there is no doctrine out there that says that the testimony of a high ranking safety professional becomes worthless simply because arguably practical matter what employer feels compelled to document the reason for terminations of people got a union it's something you may have a grievance proceeding but if if somebody is down there digging ditches and they don't follow the safety rules you just tell them don't come back tomorrow do you not a lot of times that is what what what occurs because when when people are summarily best charge for a severe safety violation or or some early discharge for some other issue a lot of times they will tell them don't come back we don't need you anymore and  don't want to take an extra lot of time but also the where is it insubstantial evidence that the secretary gets to may discredit a company witness without any basis for making exactly the opposite factual finding well that's my point as well your honor because what we did provide for in terms of in addition to the testimony documentary evidence was that jaime hernandez a former  simply no evidence that the secretary provided that there are violations out there that are not correct and that in essence is why mr for the house conduct