In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-3250

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

MYR GROUP, INC.,

Defendant-Appellee.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 02 CR 1205—Elaine E. Bucklo, Judge.

____________

ARGUED FEBRUARY 19, 2004—DECIDED MARCH 16, 2004

____________

Before CUDAHY, POSNER, and ROVNER, Circuit Judges.

POSNER, Circuit Judge. The district judge dismissed an

indictment that charged MYR Group, Inc., with violating

section 17(e) of the Occupational Safety and Health Act, 29

U.S.C. § 666(e), and the government appeals. The factual

record is limited to the facts alleged in the indictment,

according to which: MYR has a wholly owned subsidiary

named L.E. Myers Company (the parties call it “LEM”),

which repairs high-voltage lines. MYR oversees the safety

programs of its subsidiaries, provides safety manuals and

other safety instructions to the employees of the subsidiaries
2 No. 03-3250

and jointly with the subsidiaries is responsible for training

those employees with regard to safety matters, including

how to repair high-voltage lines without being electrocuted.

Nevertheless, on two separate occasions, employees of LEM

were electrocuted while repairing such lines. The indictment

charges both MYR and LEM with two counts of causing the

death of an employee by willfully violating rules promulgated under OSHA. 29 U.S.C. § 666(e). MYR is charged with

violating regulations requiring, in essence, that employees

be properly trained in safe working procedures. 29 C.F.R. §§

1910.269(a)(2)(i), (ii). LEM is charged with violations of

other rules as well, and is awaiting trial in the district court.

The government’s argument is a simple one. MYR is an

employer, albeit not of the two workers who were electrocuted; the two workers were employees; the regulations

in question state simply that “employees shall be trained in”

safe working procedures. Therefore, the argument concludes, the duties created by the regulations run to anyone’s

employees, not merely employees of the employer accused

of having violated the regulations.

In its opening brief the government tried to make something of the fact that MYR and LEM are corporate affiliates,

citing Esmark, Inc. v. NLRB, 887 F.2d 739 (7th Cir. 1989).

That, however, was a veil-piercing case, where we said that

“it is solely where a parent disregards the separate legal

personality of its subsidiary (and the subsidiary’s own decisionmaking ‘paraphernalia’), and exercises direct control

over a specific transaction, that derivative liability for the

subsidiary’s unfair labor practices will be imposed under

the theory adopted by the Board in the present case.” Id. at

757. At argument the government made clear that it is not

attempting to pierce the corporate veil and by doing so

attribute the subsidiary’s acts to the parent, consistent with

the principles of corporate law.
No. 03-3250 3

Breathtaking vistas of both criminal and civil liability (the

latter not dependent on proof that the violation was willful,

29 U.S.C. §§ 666(b), (c); S.A. Healy Co. v. OSHRC, 138 F.3d

686, 688 (7th Cir. 1998)) open before our eyes. Were LEM to

hire the Illinois Institute of Technology to train LEM’s

employees in the hazards of uninsulated high-voltage electrical cables, and IIT fell down on the job and an employee

of LEM was electrocuted as a result, IIT would, if the government is right, be either criminally or civilly liable for

having violated OSHA. It would be so merely by virtue of

having employees, even though those were not the workers

endangered by its violation. It is true that LEM and IIT are

not affiliates, but the government’s lawyer acknowledged

that this would make no difference, for remember that it

is not arguing that MYR did anything that would justify

treating LEM as if it were really just a division of MYR

rather than a separate corporation.

The government’s argument is not limited to service providers. A firm (provided only that it had employees) that

sold a defective espresso machine to a coffee shop would be

subject to OSHA liability if the machine exploded and

scalded a waiter. OSHA would become a products-liability

statute—with criminal sanctions for its willful violation.

The government points to our decision in United States v.

Pitt-Des Moines, Inc., 168 F.3d 976, 984-85 (7th Cir. 1999),

which holds that a contractor at a construction site can be

prosecuted under section 666(e) if by violating an OSHA

regulation he causes the death of an employee of another

contractor at the same site. However, the point of this

“multi-employer” gloss (cf. Universal Construction Co. v.

OSHRC, 182 F.3d 726, 728-30 (10th Cir. 1999); R.P. Carbone

Construction Co. v. OSHRC, 166 F.3d 815, 818 (6th Cir. 1998);

Beatty Equipment Leasing, Inc. v. Secretary of Labor, 577 F.2d

534, 536-37 (9th Cir. 1978); Marshall v. Knutson Construction
4 No. 03-3250

Co., 566 F.2d 596, 599-600 (8th Cir. 1977) (per curiam);

Brennan v. OSHRC, 513 F.2d 1032, 1037-39 (2d Cir. 1975); but

see Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 710-

11 (5th Cir. 1981)) is that since the contractor is subject to

OSHA’s regulations of safety in construction by virtue of

being engaged in the construction business, and has to

comply with those regulations in order to protect his own

workers at the site, it is sensible to think of him as assuming

the same duty to the other workers at the site who might be

injured or killed if he violated the regulations. From a safety

standpoint, it is a joint-employment case. A crane operator

might be killed because the contractor responsible for

leveling the ground at the worksite violated a regulation

requiring that the surface beneath the crane be planed

smooth, and a bulldozer driver might be killed when a

crane fell on him because the crane contractor had failed to

comply with regulations governing the safe operation of

cranes. Each employer at the worksite controls a part of the

dangerous activities occurring at the site and is the logical

person to be made responsible for protecting everyone at

the site from the dangers that are within his power to

control. See Universal Construction Co. v. OSHRC, supra, 182

F.3d at 730; Brennan v. OSHRC, supra, 513 F.2d at 1038. This

case is not like that. No employee of MYR was engaged in

repairing high-voltage lines, any more than a professor of

electrical engineering at IIT who trained employees in the

hazards of electricity would be present at the worksite.

The government’s attempt to stretch the statute by filing

a criminal indictment is especially questionable. Surely the

proper way to proceed, if the government really thinks the

statute can be stretched this far, would be to amend the

regulations to bring the third-party case under them.

And who by the way is “the government” in this case? No

representative of the Occupational Safety and Health

Administration, or for that matter anyone outside the office
No. 03-3250 5

of the U.S. Attorney for this district, signed the government’s brief. The Solicitor General of the United States had

to approve the appeal, 28 C.F.R. § 0.20(b); but we have

not even been told whether OSHA approves, or for that

matter knows of, the extension of liability urged by the U.S.

Attorney!

The dismissal of the indictment against the MYR Group is

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-16-04