* *

United States of America

*OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION*

1120 20^th Street, N.W., Ninth Floor

Washington, DC 20036-3457

* *

_ _

SECRETARY OF LABOR,

	

 

Complainant,

	

 

v.

	

OSHRC Docket No. 10-0359

AMERICAN ENGINEERING & DEVELOPMENT CORP.,

	

 

Respondent.

	

 

 

ON BRIEFS:

Louise McGauley Betts, Attorney; Heather R. Phillips, Counsel for
Appellate Litigation; Joseph M. Woodward, Associate Solicitor of Labor
for Occupational Safety and Health; M. Patricia Smith, Solicitor of
Labor; U.S. Department of Labor, Washington, DC

            For the Complainant

 

Kenneth A. Knox, Esq.; Fisher & Phillips, LLP, Fort Lauderdale, FL

            For the Respondent

*DECISION***

Before:  ROGERS, Chairman; ATTWOOD, Commissioner.

BY THE COMMISSION:

American Engineering & Development Corporation (“AEDC” or “the Company”)
was replacing underground utilities at a worksite in Miami, Florida. 
During an inspection of the worksite by the Occupational Safety and
Health Administration (“OSHA”), two AEDC employees were observed working
in an excavation without cave-in protection.  As a result, OSHA issued
the Company a citation alleging a repeat violation of 29 C.F.R.
§ 1926.652(a)(1),[1] <#_ftn1> for failing to provide the required
protection.  Following a hearing, Administrative Law Judge Sharon D.
Calhoun issued a decision affirming the citation and assessing the
$25,000 proposed penalty.

            On review, AEDC argues that the judge erred in concluding
that the Company had knowledge of the violative condition.  AEDC also
argues that, even if it had such knowledge, it proved the affirmative
defense of unpreventable employee misconduct (“UEM”).  For the reasons
that follow, we conclude that the Company had knowledge but vacate the
citation based on its UEM defense.

*BACKGROUND*

AEDC, a Florida company specializing in infrastructure work, was
replacing underground utilities as part of the Florida Department of
Transportation’s Biscayne Boulevard project in Miami.  AEDC Assistant
General Superintendent Eric Garcia was in charge of this project and
several other ongoing AEDC projects.  Typically, each of the projects
was staffed by an AEDC foreman who reported to Garcia and supervised the
other workers onsite.  However, several backhoe operators at AEDC
worksites were not supervised by any AEDC foremen and instead reported
directly to Garcia.  Guspar Coll-Gonzales was one of these operators.

Garcia testified that on November 18, 2009, he instructed Coll-Gonzales
not to access three trenches at the worksite that Garcia considered
unsafe.  At the hearing, Coll-Gonzales confirmed that Garcia told him
not to enter these trenches.  Nonetheless, after Garcia left the
worksite, Coll-Gonzales admitted that he directed two AEDC employees,
Carlos Prieto and Eric Guzman, to enter one of the three trenches
because Coll-Gonzales “felt that the slope was okay.”  Shortly
thereafter, in response to a complaint from the Miami Fire Department
regarding unsafe excavations, two OSHA compliance officers (“COs”)
visited the worksite and observed Prieto and Guzman in the trench, which
was more than five feet deep with no cave-in protection.  The COs
approached Coll-Gonzales, who was operating an excavator, and asked who
was in charge.  Coll-Gonzales responded that Garcia was in charge of the
worksite, but he was not there.  One of the COs asked, “If . . . Garcia
is not at the site, who is in charge?”  Coll-Gonzales responded, “That
was me.”  And when the COs asked Guzman who his supervisor was, Guzman
identified Coll-Gonzales.

            Ten to fifteen minutes later, Garcia arrived at the worksite
and identified himself to the COs as the assistant general
superintendent.  He told them that he was in charge of the employees at
the worksite, and then clarified that he was not in charge while he was
gone.  Rather, Garcia said he left Coll-Gonzales in charge of Prieto and
Guzman, and Coll-Gonzales had the authority to direct their work. 
Garcia later testified that Coll-Gonzales was only authorized to relay
orders from Garcia.  As he explained, Prieto and Guzman “would take the
orders from [Coll-Gonzales] because I’ve given the orders and I’ve
already determined where they’re working,” and so “those guys worked
with [Coll-Gonzales] . . . to make sure that that task gets done.”

*DISCUSSION*

*I.                   **Knowledge*

It is well-established that “[t]o meet her burden of establishing
employer knowledge, the Secretary must show that the cited employer
either knew or, with the exercise of reasonable diligence, could have
known of the presence of the violative condition.”  /N&N Contractors,
Inc./, 18 BNA OSHC 2121, 2122, 2000 CCH OSHD ¶ 32,101, p. 48,239 (No.
96-0606, 2000), /aff’d/, 255 F.3d 122 (4th Cir. 2001).  And “knowledge
can be imputed to the cited employer through its supervisory employee.”
 /Access Equip. Sys., Inc./, 18 BNA OSHC 1718, 1726, 1999 CCH OSHD ¶
31,821, p. 46,782 (No. 95-1449, 1999).  “Therefore, the Secretary
establishes a prima facie showing of knowledge by proving that a
supervisory employee was responsible for the violation.”  /Aquatek Sys.,
Inc./, 21 BNA OSHC 1400, 1401, 2006 CCH OSHD ¶ 32,794, p. 52,442 (No.
03-1351, 2006).  Here, the judge found that the Company knew of the
unprotected excavation through Coll-Gonzales, whom the judge determined
was a supervisor whose knowledge could be imputed to AEDC.[2] <#_ftn2> 
On review, the Company argues that Coll-Gonzales’s knowledge cannot be
imputed because he was just a backhoe operator who merely relayed
instructions from Garcia.

The Commission has long recognized that “an employee who has been
delegated authority over other employees, even if only temporarily, is
considered to be a supervisor” for the purpose of establishing
knowledge.  /Access Equip. Sys./, 18 BNA OSHC at 1726, 1999 CCH OSHD at
p. 46,782.  In deciding whether an employee qualifies as a supervisor,
“[i]t is the substance of the delegation of authority that is
controlling, not the formal title of the employee having this
authority.”  /Dover Elevator Co./, 16 BNA OSHC 1281, 1286, 1993 CCH OSHD
¶ 30,148, p. 41,480 (No. 91-862, 1993).  Although the record shows that
Coll-Gonzales was not authorized to give orders other than those given
to him by Garcia, and could not hire, fire, or discipline employees, we
find that the testimony of both Garcia and Coll-Gonzales supports the
judge’s conclusion regarding Coll-Gonzales’s supervisory status. 

Garcia acknowledged that Coll-Gonzales was expected to instruct Prieto
and Guzman about “[w]hat the task at hand was and what they should be
doing,” and Garcia “expected that [Prieto and Guzman] would adhere to
[Coll-Gonzales’s] direction.”  And Coll-Gonzales admitted that he was in
charge of the workers in Garcia’s absence, stating that “[w]henever I
tell [Prieto and Guzman] to do this or that, they do that,” because “I
have more experience working than them,” so “they go wherever I am to
ask.”  This testimony corroborates that of one of the COs, who stated
that Garcia told him during the inspection that Coll-Gonzales was in
charge of Prieto and Guzman, and it is consistent with Guzman’s
identification of Coll-Gonzales as his supervisor when questioned by the
CO. 

Taken together, we find that these facts establish that Garcia delegated
authority to Coll-Gonzales to direct the work of Prieto and Guzman in
his absence and, thus, conclude that Coll-Gonzales was a supervisor
whose knowledge can be imputed to AEDC.[3] <#_ftn3>  /See Access Equip.
Sys./, 18 BNA OSHC at 1726, 1999 CCH OSHD at p. 46,782 (knowledge
imputed from “a leadman . . . ‘in charge of’ . . . two [other]
employees,” whom the employer’s general manager “considered . . . to be
‘like the lead person for’ [those two employees]”); /Iowa S. Utils.
Co./, 5 BNA OSHC 1138, 1139, 1977-78 CCH OSHD ¶ 21,162, p. 25,945 (No.
9295, 1977) (knowledge imputed from a “temporary working foreman . . .
vested with some degree of authority over the other crew members
assigned to carry out the specific job involved”); /Mercer Well Serv.,
Inc./, 5 BNA OSHC 1893, 1894, 1977-78 CCH OSHD ¶ 22,210, p. 26,722 (No.
76-2337, 1977) (imputing knowledge of employee “considered to be in
charge of the crew when [his supervisor] was not present”).

*II.                **Unpreventable Employee Misconduct*

            AEDC contends that if it is found to have had knowledge of
the violative condition, the violation was the result of UEM on the part
of Coll-Gonzales, who disregarded Garcia’s instruction to stay out of
the trench at issue here.  To establish this affirmative defense, an
employer must show that it “(1) has established work rules designed to
prevent the violation; (2) has adequately communicated the rules to its
employees; (3) has taken steps to discover violations of the rules; and
(4) has effectively enforced the rules when violations were detected.” 
/Rawson Contractors, Inc./, 20 BNA OSHC 1078, 1081, 2002-04 CCH OSHD ¶
32,657, p. 51,326 (No. 99-0018, 2003).[4] <#_ftn4>

Here, the judge concluded that AEDC established the first three UEM
elements, but she rejected the defense based on her finding that the
Company did not effectively enforce its safety rules, as evidenced
primarily by AEDC’s decision to delay disciplining Coll-Gonzales,
Prieto, and Guzman for their November 18, 2009, violation until January
25, 2010, approximately two months later.  On review, the Secretary does
not challenge the judge’s factual findings relating to the first three
elements of AEDC’s UEM defense.  Therefore, we do not revisit those
findings here.  At issue, then, is only the judge’s ruling on the fourth
element of the UEM defense—effective enforcement of work rules.  In that
regard, we agree with AEDC that the judge erred in concluding that the
evidence here established that the Company failed to effectively enforce
its safety rules.

As we recently observed in /Thomas Industrial Coatings, Inc./, No.
06-1542, 2012 WL 1777086 (OSHRC Feb. 28, 2012), post-inspection
discipline alone is not necessarily determinative of the adequacy of an
employer’s enforcement efforts.  In /Thomas/, against a backdrop of
evidence that the employer’s pre-inspection enforcement efforts were
extensive, we rejected the judge’s conclusion that the employer’s
“decision to forgo discipline . . .  in this one instance” established
that “discipline was not universally administered.”  /Id./ at *7.; /see
Precast Serv., Inc./, 17 BNA OSHC 1454, 1456, 1995-97 CCH OSHD ¶ 30,910,
p. 43,036 (No. 93-2971, 1995) (evaluating employer’s disciplinary
measures in context of UEM defense and noting that “Commission precedent
does not rule out consideration of /post-/inspection discipline,
provided that it is viewed in conjunction with pre-inspection
discipline”), /aff’d per curiam/, 106 F.3d 401 (6th Cir. 1997)
(unpublished table decision).//

Here the judge found, and the Secretary does not dispute on review,
that: (1) AEDC had a progressive disciplinary program; (2) AEDC issued
fifty to seventy written warnings, suspensions, and terminations to
employees who had violated safety rules in the year prior to the
incident at issue; and (3) seventeen employee warning notices for
trenching violations covering the period from April 2008 through August
2009 resulted in oral and written warnings, counseling, and a
suspension.  And although AEDC waited until two months after the
inspection, it eventually disciplined all three employees involved in
the violation at issue for “entering a trench after being told not to by
a supervisor.”  There is no evidence that any of these employees had
ever before violated a Company work rule or disobeyed a safety
instruction.  Moreover, there is nothing in the record to suggest that
AEDC had previously forgone imposing discipline following such an
infraction.  Under these circumstances, we conclude that the judge erred
in relying on AEDC’s single instance of delayed discipline to find that
the Company failed to adequately enforce its safety rules.  /See Thomas,
/2012 WL 1777086, at *7 (“Given the record as a whole, we find that
[Thomas’s] decision to forgo discipline for these particular employees
in this one instance does not support a finding that it failed to
exercise reasonable diligence . . . .”).

The judge also noted that “the number of employees who felt comfortable
violating” AEDC’s rules evidenced lax enforcement.  And the Secretary
echoes that point, contending that the fact that Coll-Gonzales, Prieto,
and Guzman violated AEDC’s safety rule together shows they did not fear
discipline from the Company, and Coll-Gonzales’s participation in the
violation, as a supervisor, suggests ineffective enforcement of safety
rules.  /See GEM Indus., Inc./, 17 BNA OSHC 1861, 1865, 1995-97 CCH OSHD
¶ 31,197, p. 43,690 (No. 93-1122, 1996) (“Where all the employees
participating in a particular activity violate an employer’s work rule,
the unanimity of such noncomplying conduct suggests ineffective
enforcement of the work rule.”), /aff’d/, 149 F.3d 1183 (6th Cir. 1998);
/Jensen Constr. Co./, 7 BNA OSHC 1477, 1480, 1979 CCH OSHD ¶ 23,664, p.
28,695 (No. 76-1538, 1979) (“[A] supervisor’s breach [of] a company
safety policy is strong evidence that the implementation of the policy
is lax.”).  But here, Coll-Gonzales had a clean safety record with AEDC
for three years before this violation, and he was supervising two
employees, Prieto and Guzman, who had been working for AEDC for only
fifteen days and who would “go wherever [Coll-Gonzales] ask[ed].”  In
these circumstances, we find that their conduct on this one occasion is
not sufficient to undermine the Company’s evidence that it consistently
enforced its safety program.

           


 

Therefore, we find that the judge erred in rejecting the UEM defense for
lack of enforcement.  Accordingly, we vacate the citation.

 

SO ORDERED.

 

 

___/s/__________________________­

                                                                                   
Thomasina V. Rogers

                                                                                   
Chairman

 

 

 

                                                                                   
__/s/___________________________

                                                                                   
Cynthia L. Attwood

Dated:August 27, 2012                                            
Commissioner


 

ATTWOOD, Commissioner, concurring:

Based on evidence that AEDC employee Guspar Coll-Gonzales disobeyed
explicit instructions when he directed two laborers to work in an unsafe
trench, I join in the decision.  But there are a number of unanswered
questions about these instructions and AEDC’s enforcement of its safety
policy that I find troubling.  AEDC had twelve open trenches on the
morning of the OSHA inspection, three of which AEDC Assistant General
Superintendent Eric Garcia deemed unsafe and declared off-limits. Around
noon that day, Lieutenant Frank Mainade of the Miami Fire Department
responded to a complaint about unsafe trenching practices at the AEDC
worksite.  Upon his arrival at the site, Mainade observed an individual
working in an 8-foot deep unprotected trench.  Although it is undisputed
that this was one of the trenches that Garcia had declared off-limits,
two individuals—one of whom Mainade believed to be a supervisor and the
other a site engineer—stated that they had an engineer’s letter
certifying the trench and did not need a trench box.  And one of the
individuals Mainade met with was AEDC Grading Superintendent Brian
Burkhalter.

Following Lieutenant Mainade’s warning that he planned to contact OSHA,
the trench was covered and, based on instructions from AEDC’s safety
manager, Burkhalter declared /all/ trenches off-limits until a safety
assessment could be performed later in the day.  Yet soon thereafter,
and not long before OSHA arrived around one o’clock to inspect the
worksite, Coll-Gonzalez directed the two laborers he supervised to work
in another of the three trenches originally deemed unsafe. 

During the OSHA inspection of this other trench, Garcia—who returned to
the site shortly after OSHA arrived—provided differing explanations when
asked by the CO about the absence of any trench protection.  First, he
stated that it was Coll-Gonzales’s responsibility to install cave-in
protection.  Then he asserted, as others had earlier that morning, that
the Company could “go up to 15 feet without cave-in protection because
an engineer signed a letter [to that effect],” a statement Burkhalter
echoed when the CO spoke with him.  There is no evidence, however, that
during the inspection Garcia ever attributed the non-complying condition
to disobedience of an instruction not to enter the trench. 

At the hearing, Garcia never mentioned that an engineer had approved the
trench, but neither did he indicate that he had not said so to the CO. 
Instead, he testified that he was angry to learn that someone disobeyed
his order by entering “an illegal trench,” and acknowledged that he
approved of the disciplinary measures that AEDC ultimately imposed. 

In these circumstances, I question whether Coll-Gonzales really
disobeyed any instructions, or whether AEDC consistently enforced its
safety rules.  The judge found the Company’s explanation for its delay
in disciplining Coll-Gonzales and the two laborers incredible.  But she
did not find, and the Secretary has not argued, that testimony
concerning Garcia’s admonition against entering the three trenches was
not credible, or that the presence of a worker in one of the unsafe
trenches a short time earlier in the day—which purportedly led AEDC to
/again/ direct employees to stay out of the trenches—showed lax
enforcement.  In the absence of certain vital details regarding that
earlier incident—such as the identity of the worker in the trench and
his supervisor—and other credibility determinations by the judge, the
evidence that Coll-Gonzales engaged in misconduct stands unrebutted. 

 

 

 

                                                                       
___/s/__________________________

                                                                       
Cynthia L. Attwood

Dated:August 27, 2012                                           
Commissioner

 


United States of America

*OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION*

1924 Building - Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia 30303-3104

 

 

 

Secretary of Labor,

	

 

     Complainant,

	

 

          v.

	

           OSHRC Docket No. *10-0359*

American Engineering & Development Corporation,

	

 

     Respondent.

	

 

 

Appearances:

 

                Yasmin K. Yanthis-Bailey, Esq., Office of the Solicitor,
U. S. Department of Labor, Atlanta, Georgia

                For Complainant

 

Kenneth A. Knox, Esq., Fisher & Phillips, LLP,Ft. Lauderdale, Florida

                For Respondent

 

Before:     Administrative Law Judge Sharon D. Calhoun

 

*DECISION AND ORDER*

 

            American Engineering & Development Corporation (American
Engineering), is a construction contractor specializing in
infrastructure work, including water, sewer, paving and drainage work
(Tr. 173).  For more than a year, American Engineering was working on
the FDOT Biscayne Boulevard project at the jobsite located at US1 and SW
30 Street in Miami, Florida, putting in new infrastructure, taking out
existing utilities and replacing them with new utilities (Tr. 204).  On
November 18, 2009, Occupational Safety and Health Administration (OSHA)
compliance officers Hernaldo Carpio and Angel Diaz conducted an
inspection of the jobsite in response to a complaint from the City of
Miami Fire Department.  As a result of the inspection conducted by
Carpio and Diaz, the Secretary of Labor on January 26, 2010, issued a
citation to American Engineering alleging one repeat violation of the
Occupational Safety and Health Act of 1970 (Act) asserting a violation
of § 1926.652(a)(1) for failing to provide an adequate protective system
to protect employees working in the excavation from
cave-in.                                


            The undersigned held a hearing in this matter on July30,
2010, in Miami, Florida.  The parties have submitted post-hearing
briefs.  American Engineering contests the citation and proposed penalty
asserting it had no knowledge of the violation and that the violation
was as a result of an isolated incident of employee misconduct.  For the
reasons that follow, Citation 1, item 1 is affirmed.

*Jurisdiction*

            At the hearing, the parties stipulated that jurisdiction of
this action is conferred upon the Occupational Safety and Health Review
Commission pursuant to § 10(c) of the Act.  The parties also stipulated
that at all times relevant to this action, Respondent was an employer
engaged in a business affecting interstate commerce within the meaning
of § 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 7).

*Background*

            On the morning of November 18, 2009, Frank Mainade,
Lieutenant Paramedic, City of Miami Fire Department went to the jobsite
located at US 1and SW 30 Street in Miami, Florida,  in response  to a
phone call from the Fire Department’s hazardous materials team regarding
concerns about a trench they had seen on the jobsite (Tr. 17-18).  Once
on the site, Mainade observed an employee in a trench.  He was concerned
about the depth of the trench, as there was no sheeting or protection
for the worker (Tr. 18-19).  Mainade estimated the depth of the trench
to be approximately 8 feet, a little deeper where the back hoe was
operating (Tr. 15, 18-19).  Mainade told the men he felt that they were
operating unsafely and he would have to forward this to OSHA.  At that
time, the men began closing down the trench by removing the employees
and covering it with steel plates (Tr. 24).  Mainade telephoned OSHA
regarding the conditions he observed in the trench.  Following Mainade’s
telephone complaint to OSHA, Assistant Area Director Jaime Lopez
assigned compliance officer Hernaldo Carpio to investigate the complaint
(Tr. 53, 80, 112).  Compliance Officer Angel Diaz assisted with the
inspection^1 <#_ftn5> (Tr. 112). 

            Both compliance officers arrived at the site on the morning
of November 18, 2009, and observed  two  employees working in an
excavation (Tr.  54, 113).  The trench was not the same trench inspected
by Mainade (Tr. 205, 292).  There were three trenches open at the time
of the inspection.  The trench inspected by Mainade was identified by
Eric Garcia, Assistant Superintendent of American Engineering, as a deep
trench and had water accumulating in it (Tr. 293).  On the day of the
inspection American Engineering was performing backfilling and
compaction work at the site.  Its employees were laying a felt fabric in
the trench which was inspected by OSHA (Tr. 57).  

            Once on the jobsite, Carpio approached  Guspar
Coll-[Gonzales]^2 <#_ftn6> who was operating the excavator.  Carpio
asked him who was in charge and Coll-Gonzales said Eric Garcia, but he
was not at the site, and if Garcia was not there, then he was in charge
(Tr. 54).  In response to inquiries from Carpio regarding cave-in
protection, Coll-Gonzales said they did not have cave-in protection
because his job was to backfill the trench and he did not need the
trench box to backfill.   Further, Coll-Gonzales said he did not measure
the depth of the trench, did not take a soil sample, and did not slope
because they were working on solid rock and since the employees were
inside for only 20 to 30 minutes to lay the felt fabric, sloping the
trench was not needed (Tr. 57).

            While Carpio was conducting his inspection, Garcia arrived
at the site.  He told Carpio he was in charge of the employees but he
had left Coll-Gonzales in charge while he was away from the jobsite (Tr.
67-68).  Further, Garcia told Carpio that Coll-Gonzales had authority to
direct the work of the individuals at the worksite and was responsible
for putting cave-in protection in the trench (Tr. 68).  Garcia also
advised that he last inspected the trench on Thursday, the day before
the OSHA inspection (Tr. 70).            

            During the inspection, Carpio took several measurements of
the trench in several areas and found it to be10-feet deep in some areas
and 5-feet deep in other areas.  The width was 24 feet and the length
was 41 feet.  He did not measure the slope.  Carpio stated the trench
was required to have a 45-degree slope, which it did not have (Tr.
65-66).  

            As a result of Carpio’s and Diaz’s inspection, the Secretary
issued the citation that gave rise to the instant case.


*DISCUSSION*

*Citation No. 1*

            The Secretary alleges that American Engineering violated one
of OSHA’s construction standards on excavations.

To prove a violation of an OSHA standard, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies; (2)
there was noncompliance with its terms; (3) employees had access to the
violative conditions; and (4) the cited employer had actual or
constructive knowledge of those conditions.            

/Southwestern Bell Telephone Co., /19 BNA OSHC 1097, 1098 (No. 98-1748,
2000).

*Item 1: Alleged Violation of § 1926.651(c)(2)*

            The Secretary charges American Engineering with violating §
1926.652(a)(1).  The citation

alleges:

Each employee in an excavation was not protected from cave-ins by an
adequate protective system designed in accordance  with 29 CFR
1926.652(c).  The employer had not complied with provisions of 29 CFR
1926.652(b)(1)(i) in that the excavation was sloped at an angle steeper
than one and one half horizontal to one vertical (34 degrees measured
from the horizontal): 

 

On or about 11/18/2009, at the intersection of Biscayne Blvd. and 30^th
St. in the city of Miami Beach, FL two employees were working inside an
excavation at approximately 10 feet deep without cave-in protection. 
American Engineering & Development Corp. was previously cited for a
violation of this Occupational Safety and Health Standard or its
equivalent standard 1926.652(a)(1), which was contained in OSHA
inspection number 311086177, citation number 1, item number 3, and was
affirmed as final order on 03//21/2008, with respect to a workplace
located at 4855 Technology Way, in Boca Raton, FL 33431.

 

Section 1926.652(a)(1) provides:

 

Each employee in an excavation shall be protected from cave-ins by an
adequate protective system designed in accordance with paragraph (b) or
(c) of this section except when (i) excavations are made entirely in
stable rock; or (ii) excavations are less than 5 feet (1.52m) in depth
and examination of the ground by a competent person provides no
indication of a potential cave-in.

 

/Applicability of the Standard/

            In proving whether there is a violation, first it must be
determined whether the cited standard applies.  The Secretary cited
American Engineering for a violation of § 1926.652(a)(1), a construction
standard which addresses the protection of employees working in
excavations.  Applicability of the standard is not disputed.   American
Engineering created the trench and at the time of the inspection was
laying felt fabric in the trench  (Tr. 117).  This work activity
establishes American Engineering was engaged in construction work
involving trenches on the jobsite.  Therefore, the excavation standard
applies to the work performed by American Engineering at the jobsite.

/Noncompliance with the Terms of the Standard/

            The Secretary also must prove there was noncompliance with
the terms of cited standard, § 1926.652(a)(1).  There is no real dispute
that the terms of the standard were violated.  Coll-Gonzales advised
Carpio they did not have cave-in protection.  Further, he advised he did
not slope because they were working on solid rock and since the
employees were inside for only 20 to 30 minutes to lay the felt fabric,
sloping the trench was not needed (Tr. 57).             

            Carpio measured the trench in several areas and found it to
be 10-feet deep in some areas with 5 feet being the smallest depth
measurement.  The width was 24 feet and the length was 41 feet. 
Although he did not measure the slope, Carpio testified the trench was
required to have a 45-degree slope (Tr. 65-66).   Because the excavation
was at least 5 feet in depth, a protective system is required for
employees working in the excavation, unless the entire excavation
consisted of stable rock.  This trench was not entirely in stable rock,
as the soil analysis from OSHA’s laboratory in Salt Lake City revealed
the soil in the trench was Type B soil (Tr.  78).  Because the trench
was greater than 5-feet deep and not in solid rock, neither of the
exceptions to the standard apply.  The evidence shows Respondent did not
use a trench box in the excavation.  Since the excavation was not
properly sloped and there was no trench box in use, the undersigned
finds the Secretary has established that American Engineering failed to
provide an adequate protective system for employees working in an
excavation as provided for by the standard./__/


/Exposure or Access/

          As an element of the Secretary’s burden of proof, the record
must show that employees were exposed or had access to the violative
condition.  /Walker Towing Corp/., 14 BNA OSHC 2072 (No. 87-1359,
1991).  Carpio and Diaz testified that they observed employees working
in the excavation (Tr. 54, 113; Exhs. C-1, C-2, C-8).  This fact too is
not disputed by Respondent.   Employees Carlos Prieto and Eddie Guzman
were working in the unprotected trench in the presence of the excavator
operator Coll-Gonzales, who had been left in charge at the time of the
inspection (Tr. 54).  Coll-Gonzales testified that employees were in the
trench no more than five minutes when OSHA showed up.  They had just
started after lunch (Tr. 151).  The Secretary has established exposure./__/

/Knowledge/

            Finally, the Secretary must establish actual or constructive
knowledge of the violative conditions by American Engineering.  In order
to show employer knowledge of a violation the Secretary must show the
employer knew, or with the exercise of reasonable diligence could have
known of a hazardous condition.  /Dun Par Engineered Form Co/.,12 BNA
OSHC 1962, 1965-66 (No. 82-928, 1986).  An employer is chargeable with
knowledge of conditions which are plainly visible to its supervisory
personnel.  /A.L. Baumgartner Construction Inc/., 16 BNA OSHC 1995, 1998
(No. 92-1022, 1994).  “Because corporate employers can only obtain
knowledge through their agents, the actions and knowledge of supervisory
personnel are generally imputed to their employers, and the Secretary
can make a prima facie showing of knowledge by proving that a
supervisory employee knew of or was responsible for the violation.” 
/Todd Shipyards Corp/., 11 BNA OSHC 2177, 2179 (No. 77-1598, 1984).
/See/ also/Dun Par Engineered Form Co/., 12 BNA OSHC 1962 (No. 82-928,
1986)(the actual or constructive knowledge of an employer’s foreman can
be imputed to the employer).

             Coll-Gonzales was left in charge when Garcia left the
jobsite on the morning of November 18, 2009.  However, Respondent
asserts that Coll-Gonzales is not a supervisor for American Engineering
and his knowledge of the violative conditions of the trench cannot be
imputed to it (Respondent’s Brief, pp. 15-16).  Coll-Gonzales testified
at the hearing.  Spanish is his native language and he is not fluent in
English, therefore, Coll-Gonzales testified in Spanish with the aid of a
translator, who posed counsels’ and the undersigned’s questions to him
in Spanish, and who then translated his Spanish responses into English. 
Coll-Gonzales testified he is an operator and he has been employed by
American Engineering for three years and was rehired in October 2009. 
He is not a supervisor or a foreman and he does not have the authority
to hire, fire, or discipline employees (Tr. 140-142).  Further,
Coll-Gonzales testified Eric Garcia, his supervisor, told him on the
morning of November 18, 2009, “there were some trenches that could not
be accessed, you know, we couldn’t go into them.”  The trench that the
laborers were working in when OSHA got there was one that was not to be
accessed (Tr. 148-149).  Garcia testified that he left the jobsite at
7:00 a.m. and gave instructions to Coll-Gonzales regarding not entering
the trench at issue and other trenches that Garcia felt were problematic
(Tr. 265-266).  He did not assign a foreman to the crew in which
Coll-Gonzales was working, but testified that Coll-Gonzales had the
authority to give instructions to the laborers who were working with him
(Tr. 264, 281-283).  Coll-Gonzales testified that he directed the two
laborers to work in the trench (Tr. 149).

            Although, Respondent disputes Coll-Gonzales was a
supervisor, it cannot be disputed that  he was left in charge when
Garcia left the jobsite on November 18, 2009.  Carpio testified that
Coll-Gonzales told him he was in charge when Garcia was not onsite (Tr.
54).  Whether Respondent considered Coll-Gonzales to be a supervisor or
not, he was under the impression that he was in charge when Garcia was
not onsite.  Garcia testified that Coll-Gonzales did not have a foreman
on site to report to and that he reported directly to him (Tr. 264). 
Further, Coll-Gonzales testified the two men in the trench are his
helpers when he is the operator.  “Whenever I tell them to do this or
that, they do that . . . I can ask for help from them and they obey me
and they do what I tell them to do.”  (Tr. 160-161).  An employee who
has been delegated authority over another employee, even if only
temporarily, is considered to be a supervisor for purposes of imputing
knowledge to an employer.  /Tampa Shipyards, Inc.,/ 15 BNA OSHC 1533
(Nos. 86-360 and 86-469, 1992).  The undersigned finds that
Coll-Gonzales was a supervisor for purposes of imputing knowledge to
American Engineering.  Accordingly, the undersigned finds that the
Secretary has met her burden of employer knowlege and has established a
prima facie case as to the cited standard.

            An employer may rebut the Secretary’s prima facie showing of
knowledge with evidence that it took reasonable measures to prevent the
occurrence of the violation.  In particular, the employer must show that
it had a work rule that satisfied the requirements of the standard,
which it adequately communicated and enforced.  /Aquatek Systems, Inc./,
21 BNA OSHC 1400, 1401-1402 (No. 03-1351, 2006).  Moreover, “[w]hen the
alleged misconduct is that of a supervisory employee, the employer must
also establish that it took all feasible steps to prevent the accident,
including adequate instruction and supervision of its employee.” 
/Archer-Western Contractors Ltd./, 15 BNA OSHC  1013, 1016-1017 (No.
87-1067, 1991).  As set forth below, American Engineering has not put
forth sufficient evidence to show that it had a work rule which was
adequately communicated and enforced and, therefore, has not made the
requisite showing to rebut the Secretary’s prima facie case.**

*Employee Misconduct (Isolated Incident) *

              Respondent contends that the violation was the result of
an isolated incident of employee misconduct.^3 <#_ftn7>  In order to
establish the affirmative defense of unpreventable employee misconduct,
an employer is required to prove that it has:  (1) established work
rules designed to prevent the violation; (2) adequately communicated
these rules to its employees; (3) taken steps to discover violations;
and (4) effectively enforced the rules when violations are discovered. 
/American Sterilizer Co/., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997);
/e.g./, /Danis Shook Joint Venture XXV, /19 BNA OSHC 1497, 1502 (No.
98-1192, 2001)/, aff’d /319 F3d 805 (6^th Cir. 2003)/; Precast Services,
Inc/., 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995), /aff’d without
published opinion/, 106 F.3d 401 (6th Cir. 1997).  /Oil Well Serv., /15
BNA OSHC 1809, 1816 (No 87-692, 1992).  Also /see/ /Nooter Construction
Co./ 16 BNA OSHC 1572, 1578 (No. 91-0237, 1994).  An employer may defend
on the basis that the employee's misconduct was unpreventable.  In order
to establish the defense, the employer must show that the action of its
employee represented a departure from a work rule that the employer has
uniformly and effectively communicated and enforced. /Frank Swidzinski
Co.,/ 9 BNA OSHC 1230,  (No. 76-4627, 1981); /Merritt Electric Co./, 9
BNA OSHC 2088 (No. 77-3772, 1981); /Wander Iron Work/, 8 BNA OSHC 1354
(No. 76-3105, 1980), /Mosser Construction Co./  15 BNA OSHC 1408, 1414
(No. 89-1027, 1991) .

 /Work Rule/

            The Secretary does not dispute that American Engineering had
an applicable work rule (Secretary’s Brief, p.11). American Engineering
has a Safety Manual which contains safety rules specific to excavation,
trenching and shoring (Exh. R-6).  Those rules are supplemented
periodically by Safety Memos and Construction Tool Box Talks on a
regular basis (Exh. R-6, pp. 17, 23-25).  Paragraphs 14, 15, and 21of
Respondent’s Excavation, Trenching and Shoring Rules provide:

14.  A competent person shall conduct daily inspections on excavatins
and on an ‘as needed basis’ throughout the shift.  If unsafe situation
exists (cave-ins, slides, etc.), all work shall cease until required
safeguards have been taken . . . If there are indications of water
accumulation, sloughing, cave-ins, water seepage, soil cracks, hazardous
atmospheres, or protective system failure, work shall stop immediately
until the necessary control measures are in place to safeguard workers. 

 

15.  All soil in Florida is the least stable - Type C.  All trenches of
5 feet or deeper and must be appropriately sloped.

 

21.  A protective system shall be used to protect worker in excavations
from cave-ins.  All vertical cut walls greater than 5 feet deep shall be
sloped, braced, (timber, shoring, aluminum shoring, or trench boxes) or
protected by a system designed by a professional engineer.  

 

(Exh. R-6, pp.  23-24). 

            A work rule is defined as “an employer directive that
requires or proscribes certain conduct and that is communicated to
employees in such a manner that its mandatory nature is made explicit
and its scope clearly understood.” /J.K. Butler Builders, Inc/., 5 BNA
OSHC 1075, 1076 (No. 12354, 1977).  An employer’s work rule must be
clear enough to eliminate the employees’s exposure to the hazard covered
by the standard and must be designed to prevent the cited violation. 
/Beta Construction Co./, 16 BNA OSHC 1434, 1444 (No. 91-102, 1993).  The
undersigned finds that Respondent had a work rule designed to prevent
the cited violation.*__*

/Adequately Communicated/

            The second element of the misconduct defense is met when the
employees were well-trained, experienced and knew the work rules. 
/Texland Drilling Corp/., 9 BNA OSHC 1023, 1026 (No. 76-5037, 1980). 
The employer must show that it has communicated the specific rule or
rules that are in issue.  /Hamilton Fixtures/, 16 BNA OSHC 1073, 1090
(No. 88-1722, 1994); /New York State Electric & Gas Corp/., 17 BNA OSHC
1129, 1134 (No. 91-2897, 1995).  /See/ /Propellex Corp./, 18 BNA OSHC
1677, 1682 (No. 96-0265, 1999) (although the record shows that the
employees received training on general safety matters and procedures,
the evidence is insufficient to establish that the specific rule was
communicated to employees).

            American Engineering communicates its work rules to
employees in several ways including  mandatory training which includes
safety orientation, weekly safety talks and specific training on issues
such as confined space, etc. (Tr. 184).   Initially when hired,
employees must go through a new employee safety orientation (Tr. 185). 
As to trenches, the new employee orientation provides “trench walls must
be sloped in accordance with OSHA regulations, or you must be working in
a trench box.” (Exhs. R-1, R-4 and R-5).  As reflected by their
signatures on the New Employee Safety Orientation forms, Coll-Gonzales
and laborers Prieto and Guzman each received the new employee safety
orientation (Exhs. R-1, R-4 and R-5).  Daniel Westbrook, Safety Manager
for American Engineering, testified that during safety orientations,
employees review the safety manual and go through certain topics in it
(Tr. 189).  Because American Engineering has a large number of Spanish
speaking employees, its safety classes are taught in Spanish and
documents are translated into Spanish for those employees who do not
speak English (Tr. 171-172, 187).  Tool Box Talks, also mandatory, are
held weekly on Mondays or Fridays and cover topics that need to be
addressed and also are translated into Spanish (Tr. 192-194; Exh. R-7).

            The evidence shows that the employees involved with the
trench at issue here received training.  The employee left in charge, 
Coll-Gonzales, testified he received safety training, attended tool box
talks and  he is familiar with the company’s trenching safety policy
(Tr. 144-146 ). Further, in addition to new employee safety orientation,
laborers Prieto and Guzman, although employed for only two weeks at the
time of the inspection, told OSHA investigator Diaz they had received
safety training (Tr. 118).  Moreover, according to Garcia, both attended
tool box training (Tr. 230, 257).  It is noted, however, no documents
were introduced reflecting their signatures for said training.  The
undersigned finds that American Engineering has effectively communicated
its work rules in both English and Spanish to its employees.

/Steps to Discover Violations/

            In addition to an effectively communicated work rule, an
employer must take steps to discover violative conditions on the
worksite.  American Engineering’s Safety Manager, Daniel Westbrook,
testified he drives and walks the jobsites daily looking for safety
violations and does inspections and audits daily  (Tr. 194, 224).  In
addition, Assistant General Superintendent Garcia helps to enforce
safety rules and trains new personnel (Tr. 241).  He talks with
Westbrook daily regarding safety issues (Tr. 248).  When in the field
and noticing safety concerns, he addresses them immediately and expects
the foreman to do the same (Tr. 256).  Garcia testified that he looks at
trenches everyday and requests trenching reports daily to make sure the
inspections are being conducted daily (Tr. 258).  The main line foremen,
pipe foremen and superintendents are responsible for looking at trench
conditions (Tr. 259).  The testimony further revealed that supervisory
employees communicate by cell phone and radio regarding jobsite
conditions (Tr. 255).  Garcia was at the jobsite the night before OSHA’s
inspection and did not leave until 7:00 a.m. the morning of the
inspection (Tr. 264-265).  Before he left, he determined that three
trenches were unsafe and gave instructions to Coll-Gonzales that those
trenches were not  to be entered, including the trench at issue here
(Tr. 265-267).  

            Effective implementation of a safety program requires “a
diligent effort to discover and discourage violations of safety rules by
employees.” /Propellex Corp./, 18 BNA OSHC 1677, 1682 (No. 96-0265,
1999); /American Sterilizer Co/., 18 BNA OSHC 1082, 1087 (No. 91-2494,
1997).

Based on Garcia’s discovery of the conditions the night before, his and
Westbrooks’s  frequent monitoring visits, the requirement of examination
of the trenches by foremen, and the lack of a basis requiring more
intensive supervision, American Engineering’s safety monitoring program
was adequate. / See/ /New York State Electric & Gas Corp/., (No.
91-2897, Oct. 27, 2000); /Texas A.C.A., Inc./, 17 BNA OSHC 1048, 1050
(No. 91-3467, 1995) (employer’s duty is to take reasonably diligent
measures to detect hazardous conditions through inspections of
worksites; it is not obligated to detect or become aware of every
instance of a hazard).  The undersigned finds that American Engineering
took reasonable measures to prevent the occurrence of the violation.

/Effectively Enforced *                           */

/            /American Engineering asserts that it has an effective
progressive disciplinary program (Respondent’s Brief, p. 23).  Westbrook
testified the safety policies are enforced by verbal warnings, written
warnings, suspensions and terminations, and that in the past year
approximately 50 to 70 written warnings, suspensions and discharges have
been issued, some for violations of the trenching policy  (Tr. 196,
199).    Garcia testified as to the progressive nature of the policy
stating that a verbal warning is given for a first violation, second
offense results in a written warning, third offense results in a
suspension and the fourth time you may get terminated (Tr. 261). 
Adequate enforcement is a critical element of the defense of employee
misconduct.  For instance, an employer may show a progressive
disciplinary plan consisting of increasingly harsh measures taken
against employees who violate the work rule.  /See/ /Asplundh Tree
Expert Company/, 7 BNA OSHC 2074 (No. 16162, 179).  To prove that its
disciplinary system is more than a paper program an employer must show
evidence of having actually administered the discipline outlined in its
policy and procedures.  /E.G. Connecticut Light & Pwr. Company/, 13 BNA
OSHC 2214 (No. 85-1118, 1989)(reprimand letters issued). 

            It is not disputed that Coll-Gonzales, Prieto and Guzman
were disciplined.  However, they were not disciplined until January 25,
2010, more than two months after the inspection and not until five days
after Respondent’s [informal] conference with OSHA (Tr. 215, 227). 
Westbrook testified that the delay in disciplining them was so that he
could weigh all of the information, stating it takes time to investigate
and he does not take these matters lightly (Tr. 215-216).  Eventually,
Coll-Gonzales was disciplined with a written warning and counseling (
Exh. R-2).  Further, he was given  another orientation program after the
incident which focused on safety issues relating to trenches, and he
received a tool box training after the incident. (Tr. 152).  Laborers
Prieto and Guzman each were given a written warning and counseling
(Exhs. R-9, R-10).  “Commission precedent does not rule out
consideration of post inspection discipline, provided that it is viewed
in conjunction with pre-inspection discipline.”  /Precast Services
Inc./, 17 BNA OSHC 1454, 1456 (No. 93-2971, 1995) /aff’d/ without
published opinion, 106 F.3d 401 (6^th Cir. 1997). 

            The undersigned has reviewed and considered in conjunction
both the pre-and post inspection discipline in this case.  Of 17
employee warning notices for trenching violations covering the period
April 2008 through August 2009 resulting in verbal and written warnings,
counseling and a suspension, all but two were issued on the same date of
the incident.  The other two were issued the day after the incident
(Exh. R-8).  This indeed reflects positively on Respondent’s
disciplinary program prior to OSHA’s inspection.  However, the post
inspection discipline documents in the record tell a different story. 

            After the inspection, the three employees were not
disciplined until more than two months after the incident  (Tr. 215,
227).   This suggests lax enforcement and inconsistency in Respondent’s
discipline program.  Further, such a lengthy delay adversely impacts the
significance of the discipline and its relationship to safety.  Since
discipline was issued on the same or next day in other incidents
involving similar trench violations, the undersigned finds Westbrook’s
testimony that the delay in disciplining the employees in the November
18, 2009 incident was so that he could weigh all of the information and
investigate the incident, not credible.  The testimony reveals that
Respondent’s managers Westbrook and Garcia were aware of the incident on
the day it occurred.  Moreover, issuance of the employee warning notices
shortly after the informal conference with OSHA on January 20, 2010,
suggests the discipline may have been issued in an effort to defend the
OSHA citation in this case.  Also adversely impacting the effectiveness
of Respondent’s discipline program is the fact that three of its
employees were involved in the incident that resulted in the issuance of
the citation.  The number of employees who felt comfortable violating
American Engineering’s work rules indicates a problem with adequate
enforcement.  The undersigned finds American Engineering has not
demonstrated an effectively enforced discipline program, and therefore
has not rebutted the Secretary’s prima facie case. 

*Classification*

            The Review Commission has long considered a violation as a
repeated violation under § 17 of the Act, if at the time of the alleged
repeated violation, there was a Commission final order against the same
employer for a substantially similar violation.  /Potlatch Corp., /7 BNA
OSHRC No.1061, 1063 (No. 16183, 1979)./  / American Engineering does not
dispute and the record shows it was issued a serious citation for a
violation of § 1926.652(a)(1) on February 12, 2008, at a worksite at
4855 Technology Way in Boca Raton, Florida, for employees working in an
8-foot excavation without adequate cave-in protection  (Exh. C-10). 
According to the OSHA Worksheet, the trench was steeper than 34 degrees,
employees were laying drainage and sewer pipes and the foreman was on
the sideline observing the unsafe work practice (Exh. C-9).   This prior
citation was resolved by an Informal Settlement Agreement reflecting no
changes to the issued citation and proposed penalty, which became a
final order of the Review Commission on March 21, 2008 (Exh. C-9).  A
repeated violation of § 1926.652(a)(1) is established by the Secretary.

*Penalty Determination*

            The Commission is the final arbiter of penalties in all
contested cases. / Secretary v. OSHRC and Interstate Glass Co./, 487
F.2d 438 (8th Cir. 1973).  The Commission must determine a reasonable
and appropriate penalty in light of § 17(j) of the Act and may arrive at
a different formulation than the Secretary in assessing the statutory
factors.  Section 17(j) of the Act requires the Commission to give “due
consideration” to four criteria when assessing penalties:  (1) the size
of the employer's business; (2) the gravity of the violation; (3) the
good faith of the employer; and (4) the employer's prior history of
violations. / 29 U.S.C. § 666(j)/.  Gravity is the primary consideration
and is determined by the number of employees exposed, the duration of
the exposure, the precautions taken against injury, and the likelihood
of an actual injury. / J. A. Jones Construction Co./, 15 BNA OSHC 2201
(No. 87-2059, 1993).

            In arriving at the proposed penalty Carpio determined that
the violation was of high severity, based on the severity of injury
because the hazard of cave-in would most likely result in suffocation
that could lead to death in the event of a trench collapse.  Because of
the presence of underground utilities, previously disturbed soil, the
vibration from the excavator and vehicles on the road, Carpio determined
the probability of injury to be greater (Tr.73).  Carpio’s testimony
further reveals Respondent was not given a penalty reduction for size
since it has in excess of 250 employees (Tr. 74). Nor was Respondent
allowed a reduction for history because it had been issued a prior
citation in October 2007 (Tr. 73).  No reduction for good faith was
allowed because this was a repeat citation (Tr. 74).


            The undersigned finds that a high gravity is appropriate
here because two employees worked in the trench for 20 to 30 minutes
without an adequate protective system, exposing themselves to potential
cave-in and serious injury or death.  Further, American Engineering was
previously cited for this same standard exposing employees to
substantially similar hazards.  American Engineering is not a small
employer, as it has approximately 300 employees.  These factors weigh
against a small penalty.  Although there is no evidence that American
Engineering failed to cooperate with the investigation, the fact remains
that it did not adequately enforce its discipline program and did not do
so until the issuance of OSHA citations became imminent. This weighs
negatively as to good faith.  Considering these facts and the statutory
elements, a proposed penalty of $25,000 is appropriate.            
*FINDINGS OF FACT AND CONCLUSIONS OF LAW*

            The foregoing decision constitutes the findings of fact and
conclusions of law in accordance with Rule 52(a) of the Federal Rules of
Civil Procedure.

*ORDER*

            Based upon the foregoing decision, it is ORDERED that:

            Item 1, alleging a violation of § 1926.652(a)(1), is
affirmed and a penalty of $25,000 is assessed.

           

 

                                                                       
_        /s/                                      _

                                                                       
*SHARON D. CALHOUN*

Judge

 

Date:   December 21, 2010

            Atlanta, Georgia

 


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

[1] <#_ftnref1>The standard provides, in pertinent part:

(a) /Protection of employees in excavations./ (1) Each employee in an
excavation shall be protected from cave-ins by an adequate protective
system designed in accordance with paragraph (b) or (c) of this section
except when:

(i) Excavations are made entirely in stable rock; or

(ii) Excavations are less than 5 feet (1.52m) in depth and examination
of the ground by a competent person provides no indication of a
potential cave-in.

29 C.F.R. § 1926.652(a)(1).

[2] <#_ftnref2>The judge concluded that the remaining elements of the
Secretary’s /prima facie/ case were established and those findings
arenot at issue here.  /See //Astra Pharm. Prods., Inc./, 9 BNA OSHC
2126, 2129, 1981 CCH OSHD ¶ 25,578, pp. 31,899-900 (No. 78-6247, 1981)
(stating that, in addition to employer knowledge, the Secretary must
establish “(1) the cited standard applies, (2) there was a failure to
comply with the cited standard, [and] (3) employees had access to the
violative condition”), /aff’d in pertinent part/, 681 F.2d 69 (1st Cir.
1982).

[3] <#_ftnref3>Contrary to AEDC’s claims, case law from the Eleventh
Circuit—to which this case could be appealed as AEDC’s offices and the
cited worksite are located in Florida—does not require a different
result.  /See Kerns Bros. Tree Serv./, 18 BNA OSHC 2064, 2067, 2000 CCH
OSHD ¶ 32,053, p. 48,003 (No. 96-1719, 2000) (“Where it is highly
probable that a Commission decision would be appealed to a particular
circuit, the Commission has generally applied the precedent of that
circuit in deciding the case—even though it may differ from the
Commission’s precedent.”).  In /Daniel International Corp. v. OSHRC/,
683 F.2d 361 (11th Cir. 1982), the court held, in considering a UEM
defense, that an employee’s “position as leadman did not place him in a
supervisory role,” such that his noncompliance with a safety rule
suggested lax enforcement of such rules.  683 F.2d at 365.  But /Daniel/
is factually distinguishable from the present matter.  Unlike Assistant
General Superintendent Garcia’s actions here, the supervisor in /Daniel/
did not delegate his authority to the “leadman” while he was away from
the worksite, nor did the crew consider the leadman to be in charge. 
Rather, the supervisor in /Daniel/ gave detailed instructions directly
to the crew, personally oversaw the first part of the task he had
assigned, and then remained onsite, sitting at a desk located only about
ninety feet away from the work area.  /Id./ at 362-63, 365.  In these
circumstances, we conclude that Eleventh Circuit precedent does not
preclude us from imputing Coll-Gonzales’s knowledge here.

[4] <#_ftnref4>AEDC argues that Fifth Circuit precedent holding that the
“Secretary, not [the employer], bears the burden to establish that the
supervisor’s violative conduct was foreseeable,”/W.G. Yates & Sons
Construction Co. v. OSHRC/, 459 F.3d 604, 607, 609 (5th Cir. 2006), is
controlling here because that circuit had jurisdiction over cases
arising in Florida before the circuit split.  And AEDC contends that the
Fifth Circuit’s reliance in /Yates /on a prior Fifth Circuit case
decided before the advent of the Eleventh Circuit—/Horne Plumbing &
Heating Co. v. OSHRC/, 528 F.2d 564 (5th Cir. 1976)—means that the
Eleventh Circuit would interpret /Horne/, which is binding precedent in
that circuit, in the same manner the Fifth Circuit did in /Yates/.  But
the Commission has recognized that where“[t]he Eleventh Circuit has
neither decided nor directly addressed [an] issue[,] . . . Fifth Circuit
cases . . . do not preclude us from following Commission precedent.” 
/McDevitt Street Bovis, Inc./, 19 BNA OSHC 1108, 1110-12, 2000 CCH OSHD
¶ 32,204, p. 48,781 (No. 97-1918, 2000).  The Eleventh Circuit has not
decided whether, in cases in which a supervisor’s conduct is the basis
of a violation, UEM is an affirmative defense or the Secretary must show
that the conduct was foreseeable.  As a result, we follow our own
precedent here, which treats UEM as an affirmative defense that must be
established by AEDC.

^1 <#_ftnref5>  Compliance Officer Angel Diaz was at lunch with Carpio
when Carpio received the call to conduct the inspection relating to
American Engineering and accompanied him to assist with the inspection
(Tr. 112).

^2 <#_ftnref6>  Guspar Coll also was referred to as Gonzales during the
hearing.  The testimony revealed American Engineering records identify
him as Mr. Guspar Coll.  During the hearing, Mr. Gonzales identified
himself as Guspar Coll Gonzales.  Mr. Guspar Coll Gonzales will be
identified herein as Coll-Gonzales.

^3 <#_ftnref7> As the Secretary argues in her brief, Respondent did not
allege the defense of an isolated incident of employee misconduct in its
Answer.  Commission rules require that all affirmative defenses are to
be pled in the Answer. § 2200.34.   At the hearing, Respondent moved to
amend its Answer to allege the affirmative defense of unpreventable
employee misconduct.  The undersigned permitted the Secretary an
opportunity to respond at the hearing.  In her response the Secretary
stated that “the Secretary  has been informed of this affirmative
defense they planned to assert for a significant amount of time” (Tr.
12).  Based on the Secretary’s representation, the undersigned
determined Respondent’s failure initially to plead unpreventable
employee misconduct in its Answer did not result in any prejudice to the
Secretary.  Accordingly, the undersigned granted Respondent’s Motion to
Amend its Answer.  The undersigned rejects the Secretary’s argument in
her brief that the Secretary was prejudiced by Respondent’s presentation
of evidence on the defense at trial.