United States Court of Appeals

for the Fifth Circuit

No. 19-60745

TNT Crane & Rigging, Incorporated, 

Petitioner,

versus

Occupational Safety and Health Review Commission; 

Eugene Scalia, Secretary, U.S. Department of Labor, 

Respondents.

On Petition for Review of an Order of the 

Occupational Safety and Health Review Commission

OSHRC NO. 17-1872

Before STEWART, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

The Occupational Safety and Health Administration (OSHA) issued 

TNT Crane & Rigging, Inc. a citation for violating a regulation promulgated 

under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–78. 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should 

not be published and is not precedent except under the limited circumstances set forth in 

5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 4, 2020

Lyle W. Cayce

Clerk

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TNT contested the citation. After a trial, an administrative law judge 

affirmed the citation and the recommended penalty. The Occupational 

Safety and Health Review Commission declined review, which made the 

administrative law judge’s decision final. TNT filed a petition for review in 

this court. We deny the petition.

I.

The parties agree on all the relevant facts. Walmart hired Better Built 

Enterprises as the general contractor to install new air conditioners on the 

roof of its Corpus Christi, Texas store. TNT Crane & Rigging, Inc. was a 

subcontractor that provided crane services for this job. On the second night 

of the job, TNT’s 265-ton crane was loaded with 119,000 pounds of 

counterweights, had a “jib” attached—which extended the crane’s reach—

and had its four outriggers halfway extended onto Walmart’s asphalt parking 

lot and concrete sidewalk. The crane manufacturer’s specifications prohibit 

using the crane in this configuration without supporting materials under the 

outriggers. TNT’s Standard Operating Procedure for Cranes similarly

requires that these outriggers have supporting materials under them when 

the crane is making lifts: “Steel plates, pads or timber mats shall be used 

under the outriggers of all cranes no exceptions.” But TNT policy also states 

that a crane can be used to set its own mats if “the crane is on stable ground.”

These mats help to stabilize the crane by distributing the weight of the 

outrigger feet over a larger surface area. TNT’s crane operator attempted to 

use the crane to lift and set these steel mats under its own outriggers. That 

attempt ended poorly.

When the crane operator swung the crane around to pick up a steel 

mat, one of the outriggers punctured the concrete and the crane tipped over.

The crane operator exited the crane and was seriously injured when the ball 

of the crane hit him.

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OSHA investigated the accident and issued TNT a citation for a 

serious violation of the OSHA Ground Conditions Standard, 29 C.F.R. 

§ 1926.1402(b). The citation stated: “On or about March 23, 2017, at this 

location, the employer did not ensure that equipment was assembled and/or 

operated on ground that could support the mobile crane structure.” This was 

an alleged violation of paragraph (b) of the Ground Conditions Standard, 

which requires that

[t]he equipment must not be assembled or used unless ground 

conditions are firm, drained, and graded to a sufficient extent 

so that, in conjunction (if necessary) with the use of supporting 

materials, the equipment manufacturer’s specifications for 

adequate support and degree of level of the equipment are met. 

The requirement for the ground to be drained does not apply 

to marshes/wetlands.

Id. § 1926.1402(b). OSHA proposed a $12,675 penalty for the citation. TNT 

contested the citation and sought review by the Occupational Safety and 

Health Review Commission. See 29 U.S.C. § 659(a).

After a two-day trial before an administrative law judge, the judge 

found that TNT failed to provide adequate support for the crane according 

to the manufacturer’s specifications and, therefore, affirmed the citation and 

penalty. See id. § 661(j). TNT petitioned the Commission for discretionary 

review, but the Commission declined review and issued a Notice of Final 

Order that made the administrative law judge’s decision final. See id. TNT 

now seeks review of that final order in this court. See id. § 660(a).

II.

The administrative law judge’s decision was the Commission’s final 

decision, so that is the decision we review on appeal. Austin Indus. Specialty 

Servs., L.P. v. Occupational Safety & Health Review Comm’n, 765 F.3d 434, 

438–39 (5th Cir. 2014) (per curiam). We accept the administrative law 

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judge’s factual findings as “conclusive” if they are supported by substantial 

evidence. 29 U.S.C. § 660(a). Evidence is “substantial” if “a reasonable 

mind might accept [it] as adequate to support a conclusion.” Consolo v. Fed. 

Mar. Comm’n, 383 U.S. 607, 620 (1966) (quoting Consol. Edison Co. of N.Y.

v. NLRB, 305 U.S. 197, 229 (1938)). And we accept that judge’s legal 

conclusions unless they are “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

III.

A.

The Secretary of Labor has delegated his authority and responsibility 

for administering the Occupational Safety and Health Act of 1970 to the 

Assistant Secretary for Occupational Safety and Health. 77 Fed. Reg. 3912 

(Jan. 25, 2012). OSHA is therefore responsible for conducting investigations 

and issuing citations for violations of safety standards promulgated under the 

Act. See 29 U.S.C. §§ 657, 658. To issue a citation, OSHA “must show by a 

preponderance of the evidence: (1) that the cited standard applies; (2) 

noncompliance with the cited standard; (3) access or exposure to the 

violative conditions; and (4) that the employer had actual or constructive 

knowledge of the conditions through the exercise of reasonable due 

diligence.” Sanderson Farms, Inc. v. Perez, 811 F.3d 730, 735 (5th Cir. 2016). 

TNT argues that the administrative law judge erred in finding that OSHA 

proved any of these elements. We disagree.

1.

TNT argues that the administrative law judge’s finding that 29 C.F.R. 

§ 1926.1402(b) applied was an abuse of discretion. Under paragraph (b) of 

that section, equipment cannot be “assembled or used unless ground 

conditions are firm, drained, and graded to a sufficient extent so that, in 

conjunction (if necessary) with the use of supporting materials, the 

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equipment manufacturer’s specifications for adequate support and degree of 

level of the equipment are met.” 29 C.F.R. § 1926.1402(b). Paragraph (c)(1) 

of that section requires that the controlling entity “[e]nsure that ground 

preparations necessary to meet the requirements in paragraph (b) of this 

section are provided.” Id. § 1926.1402(c)(1). 

TNT argues that paragraph (b)’s safety standard applies only to the 

controlling entity, Better Built Enterprises. TNT seems to believe that 

paragraph (c)(1) requires that the controlling entity provide the necessary 

ground preparations, but paragraph (b) imposes upon the equipment 

operator, TNT, no obligation to use them. That would make paragraph (b)’s 

conditional prohibition against assembling or using equipment at best 

toothless and at worst surplusage. This argument is meritless. Paragraphs (b) 

and (c)(1) list distinct violations. Paragraph (b) prohibits equipment from 

being assembled or used unless certain conditions are met. Paragraph (c)(1) 

requires that the controlling entity provide necessary ground preparations. 

And paragraph (c)(2) countenances that the controlling entity in paragraph 

(c)(1) might not be the equipment user in paragraph (b)—paragraph (c)(2) 

requires the controlling entity to “[i]nform the user of the equipment and the 

operator of the location of hazards beneath the equipment set-up area.” Id.

§ 1926.1402(c)(2). Paragraph (b) therefore clearly imposes a duty on those 

who assemble and use equipment whether they are the controlling entity or 

not. TNT was responsible for assembling and using the crane. Thus, 

paragraph (b)’s standard applies to TNT.

2.

TNT argues that the administrative law judge’s finding that the 

standard was violated wasn’t supported by substantial evidence. Paragraph 

(b) prohibits the assembly or use of equipment unless ground conditions, 

including supporting materials, if necessary, can support the equipment. Id.

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§ 1926.1402(b). Per the crane manufacturer’s specifications, supporting 

materials were necessary. TNT failed to use those materials. As a result, the 

administrative law judge found that the ground conditions did not meet the 

manufacturer’s specifications; therefore, TNT violated paragraph (b)’s 

standard.

TNT’s argument that this finding was error is premised on its 

interpretation of what constitutes the “ground conditions.” TNT claims that 

the “ground conditions” standard requires only that the ground be 

sufficiently firm, drained, and graded. Using the crane without supporting 

materials violates a different standard: 29 C.F.R. § 1926.1404(h)(2). This, 

TNT reasons, means that the failure to use supporting materials is not 

evidence of a “ground conditions” violation. As the administrative law judge 

notes, however, that section doesn’t apply here. 

Section 1926.1404(h)(2) applies to “assembly and disassembly 

operations.” See id. § 1926.1404. TNT admitted that this accident didn’t 

occur during assembly. The administrative law judge therefore correctly 

rejected TNT’s argument that section 1926.1404(h)(2) applies. Indeed, even 

if it applied, TNT fails to show that this standard and paragraph (b)’s 

standard are mutually exclusive grounds for a citation.

Moreover, paragraph (b)’s standard isn’t limited to only whether the 

ground is firm, drained, and graded. TNT claims that failing to use 

supporting materials—even when they are necessary to meet the crane 

manufacturer’s specifications—isn’t a violation of the standard. That is, 

TNT could have met the manufacturer’s specifications had it used the 

supporting materials, so whether TNT used them is irrelevant for this 

standard. But as the administrative law judge correctly pointed out, the 

standard states that the “equipment must not be assembled or used 

unless . . . the equipment manufacturer’s specifications for adequate support 

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and degree of level of the equipment are met.” Id. § 1926.1402(b) (emphasis 

added). The administrative law judge therefore correctly concluded that 

TNT had to actually meet these specifications. Because the supporting 

materials were necessary to meet the crane manufacturer’s specifications yet 

weren’t used—neither of which are disputed—the administrative law 

judge’s finding that this failure violated the standard was supported by 

substantial evidence.

3.

TNT argues that the administrative law judge’s finding that a hazard 

existed was an abuse of discretion and wasn’t supported by substantial 

evidence. This argument is similarly premised on TNT’s interpretation of 

“ground conditions” as referring only to firmness, drainage, and grade. 

Because the administrative law judge’s contrary interpretation wasn’t error, 

this argument likewise fails. OSHA must find that a hazard exists “before 

issuing a standard,” so OSHA “is not ordinarily required to prove the 

existence of a hazard each time a standard is enforced.” Sanderson Farms, 811 

F.3d at 735. The existence of a hazard is, therefore, “generally presumed in 

safety standards unless the regulation requires [OSHA] to prove it.” Id. The 

standard here doesn’t require proof of a hazard. And as already explained, 

the administrative law judge didn’t err in finding a violation. Thus, the 

administrative law judge didn’t abuse his discretion, nor was his decision 

without support from substantial evidence, by finding that a hazard was 

presumed here.

4.

TNT argues that the administrative law judge’s finding that TNT had 

knowledge of the hazard was an abuse of discretion and wasn’t supported by 

substantial evidence. The Act doesn’t impose strict liability on employers for 

all of its employees’ acts. See W.G. Yates & Sons Constr. Co v. Occupational 

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Safety & Health Review Comm’n, 459 F.3d 604, 606 (5th Cir. 2006). An 

employer is liable for an employee’s serious violation of the Act only if the 

employer knew or through “the exercise of reasonable diligence” should 

have “know[n] of the presence of the violation.” 29 U.S.C. § 666(k). TNT 

does not argue that the administrative law judge erred in finding that this was 

a serious violation, and no party claims that TNT had actual knowledge of 

the violation. Instead, TNT claims that the crane operator was not a 

supervisor and, even if he was, that his knowledge can’t be imputed to TNT.

Whether someone is a supervisor depends primarily on the substance 

of his delegated authority, not his title. Iowa S. Utils. Co., 5 O.S.H. Cas. 

(BNA) 1138 (March 15, 1977). The administrative law judge found that the 

crane operator was a supervisor because he was the on-site “competent 

person” and was responsible for making sure TNT’s crew worked safely and 

conformed with the Act. Competent person “means one who is capable of 

identifying existing and predictable hazards in the surroundings or working 

conditions which are unsanitary, hazardous, or dangerous to employees, and 

who has authorization to take prompt corrective measures to eliminate 

them.” 29 C.F.R. § 1926.1401. The administrative law judge noted that the 

crane operator did a walkthrough with the general contractor and 

subcontractors to inspect where the crane would be set up, supervised the 

crane’s assembly, and completed several forms for this job on TNT’s behalf. 

Moreover, two employees testified that the crane operator was the supervisor 

here: one stated that TNT tells its employees that, unless another supervisor 

is present, the crane operator is who is in charge of and responsible for the 

job; the other stated that he worked under the crane operator, who controlled 

everything the night of the accident. Given the crane operator’s substantive 

delegated duties—he was authorized to correct unsafe working conditions, 

supervised the crane’s assembly, filled-out forms on TNT’s behalf, and was 

recognized by other employees as being in charge of this job—the 

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administrative law judge did not err in finding that the crane operator was a 

supervisor at the time of the violation. The remaining issue, then, is whether 

his knowledge can be imputed to TNT.

An employer is usually liable for a supervisor’s actual or constructive 

knowledge of conduct or of a condition that violates an OSHA standard. 

W.G. Yates, 459 F.3d at 607. But when the violation is the supervisor’s own 

misconduct, an employer is liable only if the violation was foreseeable. Id. at 

609. We have held that at least one way a violation can be unforeseeable is if 

the employer’s safety policy, training, and discipline are sufficient so as to 

make the violation unforeseeable. See Horne Plumbing & Heating Co. v. 

Occupational Safety & Health Review Comm’n, 528 F.2d 564, 570–71 (5th Cir. 

1976).

The administrative law judge found that the crane operator’s actions 

were foreseeable for two separate reasons: (1) the rules for using a crane with 

supporting materials contradicted each other and were insufficiently 

descriptive, and (2) TNT’s policy for audit and supervision were insufficient 

to identify and remedy violations like the one here. We agree that the first 

reason was sufficient for finding that the crane operator’s violation was 

foreseeable. We therefore do not reach the second reason.

The administrative law judge correctly pointed out that TNT’s 

Standard Operating Procedure for Cranes has two seemingly contradictory

rules. The first rule states that “[s]teel plates, pads, or timber mats shall be 

used under the outriggers of all cranes no exceptions,” yet the rule 

immediately after it states that “[i]n the event that the crane is on stable 

ground it is permissible to utilize the crane to place plates and mats only.”

That is, the second rule appears to be an exception to a rule that explicitly 

states “no exceptions.” TNT’s Vice President of Health, Safety, and 

Environmental admitted that these rules were poorly written and attempted 

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to clarify this contradiction without much success. He stated that these rules 

apply to lifting mode and set-up mode, respectively, but admitted that those 

are just descriptions of the work being done, not modes of the crane. He also 

claimed that this exception is “moot” when a crane is loaded with 

counterweights while acknowledging that these rules say nothing about the 

use of counterweights. And TNT’s policies draw no such distinction 

between these “modes.” The administrative law judge, unsatisfied with the 

vice president’s explanation, concluded that, “[i]f the head of health and 

safety was not capable of clearly explaining the distinction—not to mention 

he admitted it was poorly written—it is certainly foreseeable an employee 

would have similar difficulties understanding and implementing the rule.” 

Indeed, the crane operator clearly had such difficulties: he admitted to using 

the crane multiple times to set up its own supporting materials in 

circumstances similar to those here. Given these apparently contradictory 

rules—coupled with the failure of TNT’s vice president to clearly explain 

the contradiction and the crane operator’s admitted past violations—a 

reasonable mind might conclude that the violation here was foreseeable. 

Thus, the administrative law judge’s finding was not an abuse of discretion 

or without support from substantial evidence.

B.

TNT’s final argument is that the administrative law judge’s finding 

that TNT didn’t establish its unpreventable-employee-misconduct defense 

was an abuse of discretion. This affirmative defense isn’t found in a statute 

or regulation; it’s implied “by the scope of the Act’s prohibitions.” S. Hens, 

Inc. v. Occupational Safety & Health Review Comm’n, 930 F.3d 667, 678 (5th 

Cir. 2019). For this defense, TNT must show that it (1) has “work rules 

designed to prevent the violation,” (2) “has adequately communicated these 

rules to its employees,” (3) has attempted to discover violations of these 

rules, and (4) “has effectively enforced the rules when violations have been 

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discovered.” W.G. Yates, 459 F.3d at 609 n.7. The administrative law judge 

rejected this argument for the same reason that it found the violation 

foreseeable: TNT’s work rules were inadequate to prevent the violation. 

Because we find no error in the administrative law judge’s foreseeability 

finding, we likewise find that he didn’t abuse his discretion in rejecting this 

defense. See S. Hens, 930 F.3d at 678 (noting that, because this defense is

implied, the unpreventable-employee-misconduct “inquiry often overlaps 

considerably with the main violation inquiry”).

IV.

For the foregoing reasons, we deny TNT’s petition.

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