*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this opinion should not be published and is not precedent except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.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No.01-60743

Summary Calendar

 

MICA CORPORATION,

Petitioner,

 v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; ELAINE CHAO,

SECRETARY, DEPARTMENT OF LABOR,

Respondents,

--------------------

Petition for Review of an Order of the

Occupational Safety and Health Review Commission

--------------------

May 22, 2002

Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Petitioner MICA Corporation (“MICA”) appeals from the

Occupational Safety and Health Review Commission (“OSHRC”)’s Notice

of Final Order, in which the OSHRC declined to review a Decision

and Order of an Administrative Law Judge (“ALJ”). The ALJ’s

Decision and Order sustained two citations against MICA for alleged

violations of the Occupational Safety and Health Act, 29 U.S.C. §§
2

651-78. Finding that substantial evidence supports the ALJ’s

order, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

MICA engages in highway-related work, including the placement

and removal of concrete traffic barriers (“CTBs”) used on highway

construction projects. To remove a CTB, MICA uses a hydraulic

crane mounted on a truck; the crane lifts a CTB and transfers it to

another truck. A group of rotating trucks transports the barriers

to a storage area. 

While MICA ordinarily uses its own cranes and crane operators,

on April 4, 2000, MICA leased a crane and a crane operator, Michael

Grisham (“Grisham”), from RCT Leasing, Inc. (“RCT”) for a CTB

removal project. James Blalock (“Blalock”), MICA’s foreman on the

site, assigned the crew members their duties and drove one of the

trucks that MICA used to transport the CTBs to its stockpile, 15-30

minutes away. Blalock assigned Jason Owens, a MICA employee, to

drive the truck on which the crane was mounted. A fourth crew

member, Stewart Kugler (“Kugler”), marked the centers of the CTBs

and set clamps on the top of the CTBs that were to be moved by the

crane onto the trailer trucks.

Owens testified that in CTB removal operations all that the

crane truck driver can see in his side view mirror is the ground,

the CTB, the outriggers and the side of the crane, and that in

other CTB removal projects on which he had worked, the crane truck

driver was directed by hand signals from a ground man. In those
3

operations, a second ground man was charged with handling the CTB,

placing clamps on it, and guiding the CTB to the waiting truck. On

this occasion, only one ground man was assigned to the crew, as

MICA appears to have been shorthanded. Blalock had told Kugler to

assist the crane operator and crane truck driver, and Kugler

understood his job to include acting as a “spotter” watching out

for electrical power lines and other potential hazards. However,

Grisham rejected Kugler’s assistance. Kugler then focused solely

on the other ground person functions of handling the CTBs and

guiding them onto the trucks. 

Owens relied solely on Grisham to direct him when he was

backing up the truck. They agreed upon a system for coordination

between the two: when Grisham had completed a lift, he would leave

the back outriggers out and pick up the jacks. Once the jacks were

up, Owens was to take over control of the accelerator and back up

to the center of the next CTB. When Owens saw that the outrigger

and the CTB were lined up, or upon Grisham’s signal (honking the

horn), Owens would stop, put the engine in neutral, turn on the

parking brake, and turn accelerator control over to Grisham.

On the morning of April 4, after the crew had finished placing

a load of CTB on Blalock’s truck, an accident occurred. Owens

began to back up the crane carrier and, on Grisham’s signal,

stopped. At that point, Kugler, who was in the process of marking

a CTB, heard a noise behind him, looked up, and saw that the crane
1It is not clear from the record whether the crane contacted the power

cable as a direct result of Grisham’s operation of the crane, or of Owens’

backing up of the crane truck. 

4

cable had contacted a power line and was sparking.1 Grisham got

out of the operator’s cab and began walking around the back of the

crane towards Owens, when he fell to the ground due to a surge of

electricity. Blalock walked over and grabbed Grisham’s leg, but he

was knocked unconscious by a second surge of electricity. Owens

was also thrown to the ground by the surge, and when it stopped he

ran away. Blalock and Grisham died from their injuries. Kugler

was burned, and Owens was taken to the hospital.

Citations were initially issued against both RCT and MICA for

operating the crane too close to the power line and for failing to

designate an observer. The Secretary later dismissed the citations

against RCT and proceeded solely against MICA. After a hearing,

the ALJ affirmed two citations against MICA, combining them for

purposes of assessing a single penalty of $3,500.00. Upon a

petition for review by MICA, the OSHRC declined to review the ALJ’s

decision. MICA appeals.

DISCUSSION

“We are bound by the OSHRC's findings on questions of fact and

reasonable inferences drawn from them if they are supported by

substantial evidence on the record considered as a whole even if

this court could justifiably reach a different result de novo. . .

. The OSHRC's legal conclusions are reviewed as to whether they
1This section provides:

“Except where electrical distribution and transmission lines have been

deenergized and visibly grounded at point of work or where insulating

barriers, not part of or an attachment to the equipment or machinery, have

been erected to prevent physical contact with the lines, equipment or machines

shall be operated proximate to power lines only in accordance with the

following:

...

(i) For lines rated 50kV or below, minimum clearance between the lines

and any part of the crane or load shall be 10 feet.”

5

are arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law. . . . We review the Secretary's

interpretation of an OSHA regulation to assure that it is

consistent with the regulatory language and is otherwise

reasonable.” Trinity Marine Nashville, Inc. v. OSHRC, 275 F.3d 423,

426-27 (5th Cir. 2001). 

MICA was cited for alleged violations of two OSHA standards.

The first, 29 C.F.R. §1926.550(a)(15)(i)1 (the “clearance”

standard), requires that a 10 foot clearance be maintained between

any part of the crane or load and the lines. The second, 29 C.F.R.

§ 1926.550(a)(15)(iv) (the “designation” standard), provides that

“[a] person shall be designated to observe clearance of the

equipment and give timely warning for all operations where it is

difficult for the operator to maintain the desired clearance by

visual means.”

We find that substantial evidence supports the Commission’s

acceptance of the ALJ’s conclusions that MICA violated both

standards. 
6

MICA argues that substantial evidence does not support the

finding that MICA was subject to, or violated, the clearance

standard, because Grisham (an RCT employee), not MICA, was in

control of the clearance. However, the crane operated by Grisham

and the truck driven by Owens functioned as a single piece of

equipment and the clearance standard applied to the operation of

both. While it may not be clear which piece of the equipment was

the last to move before the power line was contacted, the fact that

any part of the combined equipment was within the 10 foot clearance

zone is a result of the joint operation of the two pieces of

equipment. In addition, the ALJ correctly noted that MICA could

have abated the hazard, as the operation was being performed at its

worksite, and its employees had expertise that would have allowed

them to identify and abate the hazard. Moreover, the fact that

Grisham refused an observer does not mean that, had a spotter been

specifically designated, Grisham would have ignored his warnings.

Thus, substantial evidence supports the ALJ’s finding that MICA had

sufficient control over the clearance so as to be held liable for

the clearance violation.

MICA also argues that the designation standard did not require

the designation of an observer, because the crane operator,

Grisham, had an unobstructed view in all directions. But this fact

is irrelevant; Owens, the operator of the truck, had no view of

overhead hazards behind the truck, so an observer was required to

be designated to assist Owens. 
7

In the alternative, MICA asserts that substantial evidence

does not support the finding that MICA violated the designation

standard, as it claims that Kugler was designated as an observer.

The OSHRC has previously stated that the designation standard

requires that “affirmative action... be taken by the employer.”

Secretary of Labor v. Halmar Corp., 18 O.S.H. Cas. (BNA) 1014 (Rev.

Comm’n. 1997) (citing Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d

1340 (2d Cir. 1974) (holding that 'designate' requires specific and

positive action by employer to inform an employee of the existence

and nature of his duties)). And the Secretary interpreted the

regulation as requiring that, at the very least, the designated

employee must be made to appreciate that his or her watch-and-warn

duties persist for the duration of the exposure to the hazards

associated with operating a crane where it may encounter power

lines. Because this interpretation of the standard is consistent

with the regulatory language and reasonable, we defer to it. See

Martin v. OSHRC, 499 U.S. 144, 154-56 (1991); United Steelworkers

of America v. Schuylkill Metals Corp., 828 F.2d 314, 319 (5th Cir.

1987). In this case, the record shows only that Blalock gave a

vague direction to Kugler to help Grisham, and did not inform

Kugler of his duty to ensure that the clearance be maintained

throughout the duration of the operation. Thus, substantial

evidence supports the finding of a violation of the designation

standard.
8

Finally, MICA argues that substantial evidence does not

support the finding that MICA knew or should have known of the

violative conditions. Trinity Indus., Inc. v. OSHRC, 206 F.3d 539,

542 (5th Cir. 2000) (“[T]he Secretary must show that the employer

knew of, or with exercise of reasonable diligence could have known

of the non-complying condition.”). Because MICA regularly worked

on CTB removal, MICA was well aware of the common danger of

overhead power lines, and of the fact that Owens’ view would be

restricted. Thus, MICA knew or should have known that a spotter

would be required. Given his vague instructions to Kugler, his

status as a supervisor, and the composition of the crew (with only

one groundperson, rather than two), Blalock should have checked to

ensure that the removal operation was being conducted with proper

safeguards. And had he checked, Blalock could have known of the

lack of a spotter. Thus, substantial evidence supports the finding

that MICA had knowledge of the non-complying conditions.

CONCLUSION

Because substantial evidence supports the ALJ’s findings,

affirmed by the OSHRC, we AFFIRM the OSHRC’s decision.