(Indictment 7 i(k) .)

The OSHA regulations that MYR is accused of violating are 29
C.F.R. §§ 1910.269(a)(2)(i) and (ii), which indicate that
“[e]mployees shall be trained in and familiar with the safety-
related work practices, safety procedures, and other safety
requirements in this section that pertain to their respective job
assignments” and set out various procedures and techniques in which
employees should be trained. While the passive language of these
regulations allow for the required training to be provided by
someone other than the employee’s employer, 59 Fed. Reg. 4320, 4341
(Jan. 31, 1994) (“Clearly, the plain language of the standard
allows employees to be trained by other parties.”), ultimate
responsibility for compliance with these regulations is placed on
the employee’s employer, not the party providing the training. See
29 C.F.R. § 1910.269(a) (2) (iii) (“The employer shall determine,
through regular supervision and through inspections conducted on at
least an annual basis, that each employee is complying with the
safety-related work practices required by this section.”); 29
C.F.R. § 1910.269(a) (2) (vii) (“The employer shall certify that each
employee has received the training required by paragraph (a) (2) of
this section.”). Thus, only the employer of the deceased

employees, not the party providing the training, can be held liabie

for violations of the OSHA training requirements.? As the

* Such a reading is supported by OSHA’s discussion of the

training requirements during final rulemaking. See 59 Fed. Reg.
4320, 4341 (“The standard cannot specify requirements for every

4


another.” Id. at 982-83 (emphasis added). Because the doctrine is
derived from section 654(a) (2), it is not enough that the employer
simply creates a hazard, it must be hazard resulting from the
violation of an OSHA regulation. Here, as discussed above, the
indictment fails to allege an OSHA violation by MYR, because as
trainer, but not employer, of the deceased employees, it cannot
have violated the training regulations at issue. Thus, whether or
not the allegedly inadequate training was a hazard created by MYR,
it was not a hazard resulting from a violation of OSHA by MYR. The
multi-employer doctrine does not save the indictment as to MYR.
Til.

Finally, the government argues that MYR can be held liable
under the joint employer doctrine. Regardless of whether MYR was
a joint employer of L.E. Myers under the test laid out in the cases
cited by the government involving the National Labor Relations Act,
NLRB v. Western Temporary Services Inc., 821 F.2d 1258, 1266 (7th
Cir. 1987) (citing Lutheran Welfare Services v. NLRB, 607 F.2d 777,
778 (7th Cir. 1979), the government points to no case in which one
joint employer was held liable for OSHA violations of another joint
employer. The only case cited by the government involving OSHA is
Secretary of Labor v. C.T. Taylor Co., Nos. 94-3241 & 94-3327, 2003
WL 1961272 (O.S.H.R.C. Apr. 26, 2003). In that case, the OSH
Review Commission treated two employers as a single employer for

purposes of an OSHA violation. Id. at *4. The Seventh Circuit,


++. that the court can determine without a trial of the general
issue” can be raised in a pretrial motion. Fed. R. Crim. P.
12(b) (2). Regardless of the sufficiency of the indictment in
setting out the elements of a statutory violation, if the
government’s own facts establish that there is no violation, the
indictment may be dismissed. See United States v. Risk, 843 F.2d
1059, 1061 (7th Cir. 1988). Here, the allegations in the
indictment establish that MYR cannot be held liable under section
666(e) for the deaths of the two workers.

As noted above, section 666(e) makes liable “[a]ny employer”
whose willful violation of an OSHA regulation causes the death of
“any employee.” While MYR is an “employer” and the two deceased
workers are “employee[s]” under the OSH Act,* facts alleged in the
indictment establish that MYR did not violate the OSHA regulations
it is accused of violating. The indictment alleges that the
deceased workers were employees of L.E. Myers but does not allege
that they were employees of MYR. The indictment simply alleges
that MYR “was responsible for overseeing the safety program” at
L.E. Myers, “authored and published a Safety Manual and numerous
Safety Alerts for the use of employees of [L.E. Myers],” and, with
L.E. Myers, “[was] responsible for safety training, safety

instruction and safety enforcement for employees of [L.E. Myers].”

2 Employer is defined as “a person [including a corporation]

engaged in a business affecting commerce who has employees.” 29
U.S.C. § 652(5), (4). Employee is defined as “an employee of an
employer who is employed in a business of his employer which
affects commerce.” 29 U.S.C. § 652(6).

3


indictment alleges only that MYR is an employer under the OSH Act,
but not the employer of the deceased workers, the indictment fails
to allege an OSHA violation by MYR, and consequently fails to
allege an offense under section 666(e) as to MYR.

II.

The government argues that MYR can be held liable under the
multi-employer doctrine. This doctrine, recently endorsed by the
Seventh Circuit, states that “on multi-employer work sites, an
employer who creates a safety hazard can be liable under the [OSH]
Act regardless of whether the employees threatened are its own or
those of another employee on the site.” United States v. Pitt-Des
Moines, Inc., 168 F.3d 976, 982 (7th Cir. 1999). In Pitt-Des
Moines, defendant PDM had contracted to erect structural steel for
a building project. An OSHA regulation required PDM to use two
bolts tightened with nuts to connect certain steel beams during one

phase of the project. PDM failed to do so and a beam dropped,

hazard the employee faces in performing electric power generation,
transmission, or distribution work. Employers must fill in this
gap by training their employees in hazards that are anticipated
during the course of jobs they are expected to perform.”); Id. at
4343 (“These provisions will require employers to take steps to
assure that employees comprehend what they have been taught and
that they are capable of performing the work practices mandated by
the standard.”). Further, failing to extend OSHA training
regulations to cover parties providing training to another party’s
employees is consistent with cases failing to extend OSHA
regulations to cover manufacturers and suppliers of tools and
equipment that are allegedly in violation of those regulations.
See Vulcan Tools of P.R., Inc. v. Makita U.S.A., Inc., Civ. No. 89-
148 (RLA), 1993 WL 719565, at *8 (D.P.R. Sept. 1, 1993); Bazdar v.
Koppers Co., 524 F. Supp. 1194, 1200 (N.D. Ohio 1981).

5


however, has cautioned against blurring the distinction between the
concepts of joint employer and single employer. W. Temp. Servs.,
821 F.2d at 1266. The OSH Review Commission applied the single
employer, not the joint employer, concept in C.T. Taylor Co. Thus,
the government cites no case applying the joint employer concept to
OSHA violations. As my own research likewise reveals no cases
applying the joint employer concept in the OSHA context, and the
government provides no compelling reason to do so here (it
apparently abandoned its joint employer argument before filing its
reply brief), the joint employer doctrine cannot defeat dismissal
of the indictment as to MYR.
Iv.

Because the indictment fails to allege an offense by MYR, the

magistrate judge’s decision dismissing the indictment as to MYR is

AFFIRMED.

ENTER ORDER:

Elaine E. Bucklo
United States District Judge

Dated: July Q§, 2003


Minute Order Fo (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud; i Sitting Judge if Other
vor Magistrate Judge Elaine E. Bucklo than Assigned Judge
CASE NUMBER 02 CR 1205 - 1 DATE 7/25/2003
CASE USA vs. MYR Group, Inc.
TITLE

[In the following box (a) indicate the party filing the morion, e.g, plai
of the motion being presented,]

iff, defendant, 3rd party plafatiff, and (b) state briefly the nature

MOTION:

DOCKET ENTRY:

ad oO Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) oO Answer brief to motion due__. Reply to answer brief due

(4) Oo Ruling/Hearingon___—_setfor__—_at

(5) im Status hearing[held/continued to] [set for/re-set for]on set for att

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—setfor__ at.
(7) QO Trial[set for/re-set for]on at _

(8) Oo [Bench/Jury trial] [Hearing] held/continued tos at_

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4¢n) OC Local Rule 41.1 OFRCP41(a)(1) [1 FRCP41(a)(2).

co) [Other docket entry] Enter Memorandum Opinion and Order affirming Magistrate Judge Geraldine
Soat Brown’s decision dismissing the indictment as to MYR Group, Inc.

ab [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
2

No notices required.
umber of norices

V | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
MPI deputy’s
initials

Date/time received in
central Clerk’s Office

mailing deputy itifels



triggering the collapse of part of the steel structure. Two
workers were killed, one of whom was not employed by PDM. PDM was
convicted under section 666(e), and the Seventh Circuit affirmed,
citing the multi-employer doctrine.

The multi-employer doctrine is based on section €654(a) of the
OSH Act. Id. That section states:

Each employer--

(1) shall furnish to each of his employees empioyment and

a place of employment which are free from recognized hazards

that are causing or are likely to cause death or serious

physical harm to his employees;

(2) shall comply with occupational safety and health

standards promulgated under this chapter.
29 U.S.C. § 654(a). Section 654(a) (1) places a general duty on an
employer to provide a workplace free from hazards, but the duty is
owed only “to each of his employees.” Pitt-Des Moines, Inc., 168
F.3d at 982. In contrast, section 654(a) (2) places a specific duty
on employers to comply with OSHA regulations, but the absence of
the “to each of his employees” language implies that the duty is
owed to a broader class of people. Id. Thus, “[(u]nlike Section
654(a) (1), which imposes a general duty to a specific class,
654(a) (2) implies a specific duty to a more general class.” fd.
The multi-employer doctrine arises from section 654(a) (2), and thus
amore correct statement of the doctrine is “that when an employer
on a work site violates a safety regulation, it can face liability

under the [OSH] Act regardless of whether those exposed to the

resulting danger were the employer’s own employees or those of


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
are

No. 02 CR 1205
MYR GROUP, INC. and THE L.E. MYERS

COMPANY , Dp.
Defendants. My 25 aD
MEMORANDUM OPINION AND ORDER “tty
The United States indicted MYR Group, Inc. (“MYR”) and a
wholly-owned subsidiary, The L.E. Myers Company (“L.E. Myers”), on

two counts each under section 666(e) of the Occupational Safety and
Health Act (“OSH Act”), 29 U.S.C. §§ 651-78. Section 666(e) states
that “[a]ny employer who willfully violates any [Occupational
Safety and Health Administration (“OSHA”) regulation], and that
violation caused death to any employee, shall, upon conviction, be
punished by a fine of not more than $10,000 or by imprisonment for
not more than six months, or by both.” The indictment alleged that
MYR knowingly and willfully violated two OSHA regulations relating
to safety training of employees in the electric power industry
while it was responsible for safety training of employees of L.E.
Myers. The indictment further alleged that these violations caused
the deaths of two L.E. Myers employees. Both defendants consented
to proceed before a magistrate judge, who dismissed the indictment
as to MYR for failing to set out any basis for criminal liability

on the part of MYR. Magistrate Judge Geraldine Soat Brown held


that the OSH Act and OSHA regulations create obligations of
employers to employees, and that while MYR was technically an
employer as defined by the Act, it was not the employer of the
deceased workers and could therefore not be liable for their
deaths. The magistrate judge also held that MYR did not fall
within two exceptions to the rule that an employer must be the
employer to establish criminal liability, the multi-employer
worksite and joint employer exceptions. The government now appeals
Judge Brown’s ruling. I affirm her decision.
I.

A ruling on a motion to dismiss an indictment is a ruling on
a question of law and subject to de novo review. United States v.
Prewitt, 34 F.3d 436, 440 (7th Cir. 1994).1 The government argues
that the indictment is sufficient because it alleges all the
elements of 29 U.S.C. § 666(e), and therefore should not have been
dismissed. Cf. United States v. McLeczynsky, 296 F.3d 634, 636
(7th Cir. 2002) (“An indictment is deemed sufficient if it: (1)
states the elements of the offense charged; (2) fairly informs the
defendant of the nature of the charge so that he may prepare a
defense; and (3) enables him to plead an acquittal or conviction as
a bar against future prosecutions for the same offense.”).
Pretrial motions to dismiss are not limited to challenging the

technical sufficiency of the indictment, however. “[A]ny defense

t The scope of an appeal from a magistrate judge to a

district court is the same as in an appeal from a district court to
a court of appeais. Fed. R. Crim. P. 58(g) (2) (D).

2