NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1247n.06 No. 11-4242 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

ALL ERECT ION & CRAN E RENTAL CORP., P etitioner ,

v. OCCUP ATIONAL SAF ETY AND HEALT H REVIEW COMMISSION, HILDA L. SOL IS, U.S. S E CR ETARY OF LABOR, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON P ETIT I ON F OR REVIEW OF A F INAL ORDER OF THE OC C U P A TI ON A L S A F ET Y & H E A L T H R E V I E W COMMISSION O P I N I O N

BEFORE: McK

EAGU E, GR IF F IN, Circuit Judge s , and DLOTT , Chief District Judge. * McK eague, Circuit Judge. This case arises out of a company ’s failure to compl y with fede ral cra

ne safe ty standards desig ned to ensure the safe ty and well-be ing of employ ees who work within close proxi mity of an opera ting cra ne. All Erec tion & Crane Rental Corp. (“A ll Crane” ) petitions for revie w of a final order of the Occ upational Safety and Hea lth Review Commi ssion (the “Commiss i o n ”) fi nding a violation of 29 C.F.R. § 1926.550(a) (9), which require s that the swing radius of the rea

r of a cra ne’s rotating superstruc ture be barr icade d. Be cause we conclude that

The Honora

ble Susan J

. Dlott, Chief United States District J udg e for the Southern District * of Ohio, sitting by

desig nation.No. 11-4242

All Erection v. OSH

RC substantial evidenc e supports the Administrative L aw J udg e’s (“A L J ”) d ec i sion, and it is not arbitra ry or ca pricious, we DENY the petition.

I. BACKG ROUND All Crane is an Ohio corpor ation that sells and rents cra nes and provides cra

ne-rel at ed service s to other companies. I n September 2010, All Crane supplied a cra ne and two employ ees to

a g ener al contra ctor that was building a bridg e in Br ookpark, Ohio. On September 18, 2010, the bridg e collapsed for rea sons unrela ted to the cra ne or its opera tion; conseque ntly , personne l from the Occ upational Safety and Hea lth Administration (“O SHA”) beg an investiga ting the construction site and the various companies involved in the projec t. Whil e at the worksite, an OSHA co m p l iance office r named J oko Ver

milli on noticed that the swing radius of the rea r of the cra

ne’s superstruc ture was not bar

rica ded, which c onstitut ed a violation of 29 C.F .R. § 1926.550(a)( 9). 1 On September 20, 2010, Ver milli o n s poke with Mike Gar ity , All Crane’ s sales repr esenta tive. Gar ity

identified De an F eiler ( “F eiler” ), the crane ’s operator, and Dean F eiler, Jr.,
t h e cr ane’ s oiler, as All Crane employ ees who wer e working at the s ite. Ver milli on subsequently reque sted to interview the two employ ees, which resu l t ed in a meeting with Fe iler. During the meeting , Fe iler told Ver

milli on that he had b ar ri cade d a portion of the cra ne’s swing radius by leaning two wooden pallets toge ther. Be cause this structure does not qualify as a proper barr icade ,

29 C.F.R. § 1926.550(a) (9) provides that “[a]ccessible are as within the swing radius of the 1 rea r of the rotating superstruc ture of the cra ne, either perma

nently or temporar ily mounted, shall be barr icade d in such a manner as to preve nt an employ ee from being struck or crushe d by the cra ne.” - 2 -No. 11-4242

All Erection v. OSH

RC

on Fe bruar

y 17, 2011, Ver

milli on issued All Crane a citation for fa i l i n g to proper ly barr icade the

cra ne’s swing radius. All Crane contested the citation, and a hear ing was held befor e an AL J on J une 3, 2011. Ver milli on, Fe iler, and All Crane’ s safe ty direc tor, Kirk Ward, testified. On Aug ust 4 , 2 0 1 1 , t h e AL J issued a decision aff irming the citation. See All Erection & Crane Rental Corp. , 23 BN A OSHC 1923 (No. 11-0745, 2011). The AL J beg an her analy sis by addre ssing All Crane’ s challeng e to Ver milli on’s cre dibilit y . Id. at *3. All Crane asser ted that Ver

milli on was not a cre dible witness beca use he testified that the accident had occur red on September 17, 2010, rathe r t han S eptember 18, and beca

use he mistakenly testified to taking some photogr aphs introduced as evidenc e. Id. The AL J stated that “[this] does not sug g est that he is not cre dible, espec ially since he was testify ing from memory and only used his investiga tion file to ref

resh his rec ollection.” Id. Additionally , she found Ver milli on to be “composed, si ncer e, and be lievable” and these discrepa ncies to be insig nificant. Id. After finding Ver milli on cre dible, the AL J addre ssed the alleg ed violation of 29 C.F.R § 1926.550(a) (9). She found that the fi rs t element nece ssary for imposing liability —whether the

s t andard applies—wa s fulfilled, for the reg ulation specific ally addre ssed cra nes. Id. at *4. Reg arding the sec ond element—whe ther the standa rd’s ter ms wer e met—the AL J held that “[t] he

rec ord shows the cra

ne’s swing radius was not barr icade d as require d.” Id. She cited Fe iler’s testimony , in which he admitted that he did not proper ly barr icade the swing radius, and All Crane’ s brief, w hich, ac cording to the AL J , essentially conce ded this point. Id.

- 3 -No. 11-4242

All Erection v. OSH

RC The third element—whe ther employ ees wer e exposed to the cited condition—was also met. Id. I n finding employ ee exposure, the AL J cited Commi ssion decisions for the proposition that this element is met if “it is rea sonably predic table by opera tional nece ssity or otherwise, i n cludi ng inadver tence , that employ ees have been, are , or will be in t h e z one of dang er.” Id. (quotation omitted). Ba sed on the testimony of Ver milli on and Fe iler, she found that the cr an e’ s o i l er was within the cra

ne’s swing radius during its opera tion. Id. She also found that other employ ees wer e within the zone of dang er beca use “employ ees walked behind and around the cra ne, in proxi mity to the rotating counter

weig ht

. . . . There was nothing to preve nt the employ ees from acc essing the are a of the c rane ’s swing radius.” Id. The fourth and final element—whe ther the employ er had knowledg e of the violation—was satisfied throug h Fe iler’s knowledg e of the v i o l at i on. Id. at *5. The AL J cited Ver milli on’s testimony that Fe iler identified himself as the fore man of the projec t and that he was in char g e of the

cra ne, the oiler, and the oiler’s safe ty

. Id. She noted that Fe iler testified that he did not i d en tify himself as a member of manag ement or as a fore man. Id. Howeve r, she held that his control of the

cra ne’s opera tion a

nd responsibility for the oiler, not his officia l position within the company , was dispositi ve. Id. I n support, she cited Tampa Shipyards, Inc. , 15 BN A OS HC 1533 (Nos. 86-360, 86-469, 1992), for the proposition that “[a]n employ ee who has been dele gat ed authorit y over another employ ee, even if only temporar ily , is considere d to be a supervisor for purposes of imputing knowledg e to an e mploy er.” Id. After holding that a prima fac ie violation had been established, the AL J addre ssed All Crane’ s aff

irmative def

ense of unpreve ntable employ ee misconduc t. Id. at *6. Thoug h she found

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All Erection v. OSH

RC that All Crane did have established wor k rules per

taining to c rane barr icading , she also found tha t All Crane did not eff

ecti v el y co m municate these rules. Id. at *6-7. There fore , she aff irmed the citation, althoug h she reduc ed the penalty from $4,500 to $2,500. Id. at *7. On September 15, 2011, the R eview Com m i s sion declined to revie w t he AL J ’s decision, thus adopting the AL J ’s decision as its final order

. II. ANALYSIS A. Standard of

Review Our revie w of a Commi ssion decision is limit ed. “The AL J ’s deter mination may be set aside if arbitra ry , capr icious, an abuse of discretion, or co ntrary to law.” R.P. Carbone Constr. Co. v. Occ upational Safety & Health Rev iew Comm’n , 166 F.3d 815, 818 (6th Cir. 1998). We must acc ept

as conclusive the AL J ’s fac tual fin dings if “supported by substantial evidenc e on the rec ord considere d as a whole.” Id. “Substantial ev i dence is more than a scintilla, but less than a preponde ranc e, of the evidenc e.” Id. B. Violation To establish a prima fac ie violation of an OSHA standard, the Secre tary of L abor must show by a preponde ranc e of the evidenc e that “(1) the standard applies to the cit ed co nditions, (2) the require ments of the standard wer e not met, (3) employ ees had acc ess to the hazardous condition, and (4) the employ er knew or should have known of the hazardous cond i t i o n wi th the exercise of

rea sonable diligenc e.” R.P. Carbone Constr. Co. , 166 F.3d at 818. All Crane does not dispute that the first two elements wer e shown. I t arg ues only that employ ees did not have acc ess to a hazardous condition and that it did not know of the condition’s exist ence . - 5 -No. 11-4242

All Erection v. OSH

RC 1. Acc ess to the Hazardous Condition Although All Crane ad m i t s that there is no question that Fe iler failed to comply with 29 C.F.R. § 1926.550(a) (9) be cause he only partially barr icade d the cr ane’ s swing radius, it contends that the AL J err ed in finding that empl o y ee s wer e exposed to a hazard. All Crane bases this arg ument on the alleg ed fac t that only the rig ht rea r of the cra

ne exposed employ ees to a hazard and that this are a was blocked with pallets. All Crane asser ts that beca

use there wer e high voltag e wires

on the rig ht side of the cra ne, the cra

ne could n o t p i v ot to the rig ht without striking the wires. Additionally , All Crane states that there was no rea son for the cra ne to pivot to the rig ht, beca use the only work that wa s perf

ormed was on the left side of the cr ane. T hus, beca

use the c rane was only p i v o t ing left, the only exis tent hazard was on the rig ht-rea r side of the cra

ne. All Crane fu rt h er arg ues that F eiler de nied that the oiler e ntere d the swing radius during the cr ane’ s opera tion. But the thrust of All Crane’ s arg ument is misdi rec ted. The Sec reta ry need only prove that employ ees had acc ess to the violative condition. The Secre tary need not prove that employ ees wer e actua lly exposed to the condition, but only that it was rea sonably predic table that employ ees would be within the zone of dang er. See Mark A. Rothstein, Oc cupational Safety and Hea lth L aw § 5:13 (2011 ed.). Fur

thermore , the Secre tary need not prove that the violative condition wa s ac t u al l y hazardous, since under a standard such as this the exis tence of a hazard is presumed. See Mayflower Vehicle Sys., Inc. v. Chao , 68 F. App’x 688, 692 (6th Cir. 2003); Bunge Corp. v. Sec’ y of Labor , 638 F.2d 831, 834 ( 5th Cir. 1981). Substantial e vidence supports the AL J ’s finding that employ ees had acc ess to the violative condition, namely , the unbarr icade d swing radius of the cra ne. The AL J found that the oiler worke d - 6 -No. 11-4242

All Erection v. OSH

RC within the swing radius of the cra ne while it opera ted. All Erection & Crane Rental Corp. , 23 BN A OSHC at *4. This f

inding is dire ctly supported by Ver milli on, who stated, “I asked [Feiler] if the oiler wa s working inside the swing radius while the cr ane w as being opera ted, and he indicated to me that he ha d. He wa s in there to chec k the crane and at all times he wa s working all around the

cra ne.” Petitioner’s App. Vol. I , Hea ring Transc ript, 38. Although All Crane points out that Fe iler
contra dicted this testimony , t h e AL J addre ssed this discrepa ncy and rea sonably reje cted Fe iler’s testimony on this point

. All Erection & Crane Rental Corp. , 23 BN A OSHC at *4. Additionally , it was rea sonably predic table that other employ ees could have acc essed the violative condition. The AL J found that “[i] n order to enter the job site, employ ees walked behind and around the cra

ne, in proxi mity to the rotating counter weig ht

. . . . There was nothing to preve nt the employ ees from acc essing the are a of the cra ne’s swing radius.

. . . [O] ther employ ees had acc ess to the un-bar

rica ded are a of the cra

ne’s swing radius.” Id. at *4. The AL J ’s finding that employ ees had ac cess to the unba

rrica ded swing radius is supported by substantial evidence

. 2. Knowledge of the Hazardous Conditi on All Cra ne’s arg ument that it did not have knowledg e of the hazardous condition is without

m er i t

. Fe iler had actua l knowledg e of the violation. This Court has held that a supervisor’ s knowledg e may be imputed to the employ er. Danis-Shook Joint Venture XXV v. Sec’ y of Labor , 319 F.3d 805, 812 (6th Cir. 2003). All Crane asser ts that Fe iler was not an officia l fore man or manag er, and thus his knowledg e of the violation cannot be imputed to All Crane. This asser tion ignor es the AL J ’s rationale

. The AL J held that officia l status is not controlling

. I nstead, “[t] he fac t that Fe iler was in char g e of the crane operations on the s ite, an d as h e s t at ed, that he was responsible for the - 7 -No. 11-4242

All Erection v. OSH

RC safe ty of the oiler on the jobsite, is deter minative.” All Erection & Crane Ren t a l C orp. , 23 BN A OSHC at *5. I n holding that Fe iler was a supervisor for the purpose of imputing knowledg e to All Crane, the AL J corr ectly applied applicable law. See Tampa Shipy ards, I nc. , 15 BN A OSHC 1533, at *6 (Nos. 86-360, 86-469, 1992) (“A n employ ee who has been deleg ated authority over o th e r e mp loy ees, even if only temporar ily , is considere d to be a supervisor for t he purposes of imputing knowle dg e to an emplo y er . ”) ; s ee a lso Georgia Elec. Co. v. Marshall , 595 F.2d 309, 321 (5th Cir. 1979) (indicating that a “boom truck opera tor” who oversa

w a cre w ere cting light poles “in fac t exercised supervisory authority ,” even though his “job title was not that of a superintende nt or fore man,” and there fore his knowledg e could be im p u t ed to his employ er)

. Moreove r, reg ardle ss of Fe iler’s knowledg e, the rec ord indicates that All Crane failed to exercise rea sonable diligenc e in monitoring the safe ty of its opera tions. I ts safe ty supervisor, Kirk Ward, admi t t ed that he never visited the worksite until afte r the bridg e collapsed. Acc ording ly , All Crane should have known of the violative condition. C. Aff irm ative De fense All Crane ne x t arg

ues t hat t he AL J err ed in finding that it did not establish the af firmative defe nse of unpreve ntable employ ee misconduct. “I n the Six th Circuit, in order to succe ssfully asser t this defe nse, an employ er must show that it has a thoroug h safe ty prog ram, it has communicated and fully enfor ced the prog ram, the conduct of the employ ee was unfore seea ble, and the safe ty prog ram

was eff ective in theory and prac tice.” Danis-Shook Joint Venture XXV v. Sec’ y of Labor , 319 F.3d 805, 812 (6th Cir. 2003). The AL J found that althoug h All Crane had a written safe ty prog ram that - 8 -No. 11-4242

All Erection v. OSH

RC

was communicated to its employ ees, it did not effective ly communicate this policy

. All Erection & Crane Rental Corp. , 23 BN A OSHC at *7. I n rele vant par t, she stated: [Feiler was] unawa

re that the oiler was not permitted to work within the swing radius of the cra ne while the cra

ne was opera ting. Fe iler’s statement to Ver milli on that he believed there was an exemption for the oiler which permitted the oiler to work within the swing radius of the cra ne while the cra

ne was opera ting, indicates Fe iler’s understanding of cra

ne safe ty and All Crane’ s rules was not as extensive as All Crane claims

. . . . Fur

ther, a supervisor’ s failure to follow the safe ty rules and involvement in the misconduct is strong e vidence that the employ er’ s safe ty prog ram wa s lax

. Id. All Crane arg ues t hat t his finding was based on a mis take of law. All Crane contends that 29 C.F.R. § 1926.550(a) (9) perta ins to barr icading the swing radius of the rea r of a cra n e, n o t t o prohibiting employ ees from working within the swing r adius. Additionally , All Cra ne arg ues that Fe iler was corr ect in his belief that there is an exemption permitting oilers to work within a cra ne’s swing radius. Thoug h the parties devote much eff ort to di s p u t i n g wh ether 29 C.F.R. § 1926.550(a) (9)

rec og nizes an exception that permits an oiler to enter the swing radius of a cra ne during its opera tion,

we need not resolve the dispute. We ag ree with the AL J that Fe iler was eff ectively a s u p er v i s or 2 since he was g iven complete control and full responsibility over the cra ne’s opera tions without any oversig ht. This Court has previously stated that “[i] n case s involving neg lige nt behavi or by a supervisor or fore man which results in dang erous r isks to employ ees unde r his or her supervision,

Sh o rt ly afte r the fac ts underly ing this case transpire d, OSHA completely revised its 2 standards go v er n i n g cra

nes and derr icks. The new standard that g overns barr icading the swing radius is drastica lly

differ ent from the old standa rd. See 29 C.F.R. § 1926.1424. - 9 -No. 11-4242

All Erection v. OSH

RC such fac t raises an infere nce of l ax en forc ement and/or communication of the employ er’ s safe ty policy .” Danis-Shook Joint Venture XXV , 319 F.3d at 811 (citation omitted); see also Brock v. L.E. Mye rs Co., High Voltage Div. , 818 F.2d 1270, 1277 ( 6th Cir. 1987). Her e, Fe iler blatantly violated OSHA safe ty standards and All Crane’ s o wn co m pany policies. See 29 C.F.R. § 1926.550(a) (9); Petitioner’s App. Vol. I I , All Crane’ s Safety Policy , 26. This fac t supports the AL J ’s finding that All Crane’ s work rules wer e not eff ectively communicated. We find further evidenc e to support the AL J ’s finding in Fe iler’s beliefs reg arding the eff ectivene ss of the wooden- pallet barr icade

. All Crane alleg es that “[Feiler ] believed in g ood faith that he had complied with the rule, beca use the struck-by hazard only exis ted on the rig ht side of the

cra ne.” Petitioner’s Br

. 31. I ndeed, when asked whether he believed that he eff ectively barr icade d the cra ne’s swing radius, Fe iler responde d aff irmatively

. This belief is incorre ct and contra ry to the plain lang uag e of the standard and indicate s t h at All Crane’ s work rules wer e not eff ectively communicated. Fur thermore , evidenc e in the rec ord i ndicates that Fe iler’s misconduct was fore seea ble. Although the AL J did not rea ch this element of the employ ee misconduct defe nse, we could aff irm

on this g round. See Campbell v. BNSF Ry. Co. , 600 F.3d 6 6 7, 677 (6th Cir. 2010). All Crane admits that it had employ ees on site on September 1, 8, 9, 10, 13, 14, 15, and 17. During this period of over two wee ks, no safe ty inspector f

rom All Crane visited the site. We think that a rea sonable employ er w ould have se nt a safe ty inspector to the site during this ti me. I f All Crane had done so it would have discovere d the violation, which was plainly visible. There fore , All Crane cannot prove that Fe iler’s misconduct wa s unfore seea ble. - 10 -No. 11-4242

All Erection v. OSH

RC D. Misce llaneous Issues All Crane asser

ts that it was prejudice d by rec eiving reda cted versions of the investiga tor’s

narr ative and workshee t, for these reda cted v er s i o n s g ave it the i mpression that the S ecr etar y was taking the position that Fe iler was neither a member of manag ement nor a supervisor. All Crane also

asser ts th at it was prejudice d by the AL J ’s ref usal to permit All Crane to enter the unreda cted documents into evidenc e during the hea ring

. Reg ardle ss of any err or, All Crane has not demonstrated prejudice

. “[I ]f an ag ency has failed
to adher e to its own procedur es, we will not rema nd for further administrative proce eding s unless the cl ai mant has been prejudice d on the merits or deprive d of substantial rig hts beca use of the ag ency ’s proce dural lapses.” Rabber s v. C o mm ’r Soc. Sec. Admin. , 582 F.3d 647, 654 (6th Cir. 2009) (c itations and quotations omit ted). Evidently the redacte d information t otaled around three lines. During the hear ing, the AL J took a fiftee n-minute rec ess to allow counsel for both parties to revie w and discuss the unredacte d documents. After this rec ess, s he allowed All Crane’ s counsel
to impeach Ver

milli on with the reda cted information. Additionally , All Crane’ s counsel did not take issue with the AL J ’s statement that this proce dure eliminated any prejudice to All Crane. Moreove r, All Crane’ s counsel acknow ledg ed that Ver milli on identif

i ed Fe i ler as a fore man in unreda cted portions of the docume nts. Rega rdless of a

ny err or, All Crane was not pre judiced. All Crane’ s arg ument that it was not aff orded an opportunity to participa te in the inspection is also without merit. All Crane clea rly knew of th e OS HA investiga tion and points to no fac ts indicating it was denied a n opportunity

to participate in the inspection.

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All Erection v. OSH

RC III. CONCLUSION For these re asons, we DENY the petition for re view.

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