M.C. Dean, Inc. v. Secretary of Labor

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13748
________________________
OSHC Docket No. 10-0549
M.C. DEAN, INC.,
Petitioner,
versus
SECRETARY OF LABOR,
Respondent.
________________________
Petition for Review of a Decision of the
Occupational Safety and Health Review Commission
_________________________
(February 1, 2013)
Before HULL, WILSON and HILL, Circuit Judges.
Case: 11-13748 Date Filed: 02/01/2013 Page: 1 of 18

-- 1 of 18 --

2
PER CURIAM:
M.C. Dean petitions for review of a final decision of the Occupational
Safety and Health Review Commission finding that M.C. Dean violated the
Occupational Safety and Health Act (“OSHA”) by failing to guard a skylight
which resulted in an employee’s fall and subsequent death. After careful review of
the record and briefs, and with the benefit of oral argument, we deny the petition
for review and affirm the Commission’s decision.
I. BACKGROUND
Because the facts underlying M.C. Dean’s citation are central to this appeal,
we recount them below.
A. The Underlying Incident
Petitioner M.C. Dean is an electrical contractor that, among other things,
services existing electrical installations. In August 2009, Ryder Transportation
Services (“Ryder”) hired M.C. Dean to perform electrical equipment upgrades and
maintenance at Ryder’s warehouse. Tommy McGregor, M.C. Dean’s service
group manager, selected a three-person team to complete the Ryder project: Boyd
Young, Lewis Quinn, and Sam Dittmore. Young and Quinn were both journeymen
electricians, while Dittmore was an apprentice electrician.
While McGregor was the team’s supervisor, a lead electrician was selected
to manage the Ryder project onsite. Because Young had more knowledge and
Case: 11-13748 Date Filed: 02/01/2013 Page: 2 of 18

-- 2 of 18 --

3
experience with motor controls, service panels, and breakers, Young became the
“lead” or “senior man” on the Ryder project.
As lead, Young served as the direct contact with Ryder and managed the
project onsite. A Ryder representative communicated directly to Young the tasks
to be performed at the job; Young then relayed that information to supervisor
McGregor. But if a new task was required, McGregor was not always called
before it was added to the task list, and Young had the latitude to service additional
work requests. Also in his capacity as lead, Young obtained any necessary
materials missing from the jobsite; answered any inquiries from Ryder; and
generally determined the manner in which the tasks of the job would be executed.
However, Young could not discipline any employee. That duty remained with
McGregor. McGregor was also responsible for safety.
The work required for the Ryder project included running conduit and
mounting junction boxes along the roof inside the warehouse. The work was
completed using an articulating boom lift inside the facility. While working inside
the warehouse, the crew noticed rectangular skylights located on the roof of the
building.
M.C. Dean’s crew had been onsite for approximately two weeks, when on
August 27, 2009, Dittmore completed the daily pre-task planner for the Ryder job.
The pre-task planner assessed the risks involved in the day’s tasks. After Dittmore
Case: 11-13748 Date Filed: 02/01/2013 Page: 3 of 18

-- 3 of 18 --

4
filled out the planner, Young and Quinn reviewed it, and all three crew members
signed it. The pre-task planner noted as safety hazards for the day “[o]thers
working in the area” and “finish unenergized circuits using lift.” In two places, the
pre-task planner noted that the crew would need “100% Fall Protection.”1 The pre-
task planner did not mention any hazard related to the skylights or roof. At the
time the crew completed the pre-task planner on August 27, they did not know they
would have to access the roof that day.
Later that morning, the crew learned that the facility’s exhaust fans did not
come on with the flip of the switch as they should have after the crew finished
rewiring. The crew determined it would have to access the roof to verify the
voltage at the exhaust fans. Prior to accessing the roof, Young discussed it with
Jeff Thompson, a Ryder employee. Thompson told Young that there was no roof
access, but the roof had been accessed in the past via a series of ladders.
As noted above, the Ryder facility’s roof had a number of skylights that
were apparent from the ground inside the building. However, on the roof, the
skylights were nearly invisible, as the color and texture of the corrugated roof and
skylight panels were virtually identical. The skylight panels were approximately
25 feet apart on the roof, and no skylight was within six feet of either exhaust fan
1 The term “100% Fall Protection” referred to an M.C. Dean six-foot rule whereby an
employee must be “tied off” (e.g., wear a harness) if the employee is working within six feet of a
fall hazard.
Case: 11-13748 Date Filed: 02/01/2013 Page: 4 of 18

-- 4 of 18 --

5
that the crew would be required to access. Thompson and Young did not discuss
the skylights on the roof, and Young did not inquire as to whether the skylights had
a guardrail or screen, or whether they were clearly marked.
The crew decided to access the roof using the boom lift. Because Quinn had
the most experience with the lift, Quinn used the lift to access the roof. Quinn
wore a safety harness (i.e., fall protection) while transported in the lift from the
ground to the roof. Once he exited the lift onto the roof, Quinn did not use a
harness. Quinn was on the roof for 15 or 20 minutes and remained in constant
radio contact with Young. After testing the two exhaust fans, Quinn fell through a
skylight 25 feet to the facility’s concrete floor below. Two weeks later, Quinn died
from his injuries.
B. The OSHA Inspection and Citation
On September 11, 2009, Reinaldo White, an OSHA compliance officer,
conducted an investigation at the Ryder facility after Quinn’s death. After his
investigation, White recommended, and the Secretary of Labor issued, a single
“serious” citation to M.C. Dean for failing to guard the skylight openings in
violation of 29 C.F.R. § 1910.23(a)(4).2 White recommended its categorization as
a “serious” violation because of Quinn’s death. The proposed penalty was $7,000.
2 The Secretary also cited Ryder, alleging violation of the same provision. In a decision
and order dated February 28, 2011, another administrative law judge vacated the citation. The
Secretary requested and was granted review of the decision by the Occupational Safety and
Health Review Commission, before which it remains pending.
Case: 11-13748 Date Filed: 02/01/2013 Page: 5 of 18

-- 5 of 18 --

6
M.C. Dean contested the citation and penalty to an administrative law judge of the
Occupational Safety and Health Review Commission (the “Commission”).3
C. The Administrative Law Hearing and Decision
On September 2 and 3, 2010, an administrative hearing was held before an
administrative law judge (“ALJ”). The ALJ heard testimony from Reinaldo White,
Boyd Young, Tommy McGregor, and M.C. Dean’s Vice-President of Safety John
Bennett.
Boyd Young testified as to the events of August 27, 2009. Young estimated
that the skylights were located 25 feet away from the exhaust fans on the roof.
Young also testified about the six-foot rule, and stated that he and Quinn had been
trained on the six-foot rule. Young had no reason to believe Quinn would go
within six feet of any of the skylights. But Young testified that he had never
before seen those kinds of flush skylight panels.
Tommy McGregor testified that on the day of the accident, Young was
designated lead, but neither Quinn nor Young were considered supervisors.
McGregor defined the term “field supervisor” as a “general term” referring to
when “someone is watching over or dictating the task.” But if a serious problem
3 The Commission is an independent adjudicative forum for citation disputes. 29 U.S.C.
§§ 659, 661. When an employer contests an OSHA citation by the Secretary, a hearing is held
by an administrative law judge of the Commission. A party dissatisfied with the decision of the
administrative law judge may then petition for discretionary review by a three-member
Commission panel. 29 U.S.C. §§ 659(c), 661(j).
Case: 11-13748 Date Filed: 02/01/2013 Page: 6 of 18

-- 6 of 18 --

7
arose on the jobsite, the crew would have called McGregor, as it was his duty to
take care of those issues. Specifically, if an employee violated safety
requirements, it was McGregor’s responsibility to take care of it. McGregor would
visit jobsites, but it would vary as to how often he visited. McGregor did not go to
the Ryder jobsite until after the accident.
McGregor testified that on the day of the accident, he was not aware that the
crew was going to go on the roof as it was not part of the original scope of work.
McGregor also testified that it was rare for M.C. Dean employees to be required to
access a roof, and that after the incident, M.C. Dean instituted a roof permitting
process whereby employees must obtain a roof access permit before accessing a
roof.
John Bennett testified to M.C. Dean’s extensive safety training program,
including its emphasis on fall protection. Bennett also testified that he would
consider the persons in charge of safety on a jobsite to be those present: “I would
look at Lewis Quinn and Boyd Young as being equally responsible because they
were at equal levels, but taking in consideration of the fact that Tommy assigned
Boyd as the lead person because he was more familiar with the type of work at that
time.”
After the hearing and after reviewing the parties’ post-hearing briefs, the
ALJ affirmed the citation and assessed the recommended penalty of $7,000. The
Case: 11-13748 Date Filed: 02/01/2013 Page: 7 of 18

-- 7 of 18 --

8
ALJ determined that the Secretary had met her burden of showing M.C. Dean had
knowledge of the fall hazard posed by the skylight. The ALJ found that M.C.
Dean had that knowledge through the constructive knowledge of Young, whom
she deemed an onsite supervisor. Specifically, the ALJ found that (1) M.C. Dean
had assigned Young as the onsite field supervisor or lead for the day of the
accident; (2) Young controlled the “method and manner” in which the crew
performed the assigned tasks and he maintained the ability to assign tasks to other
employees, including other journeymen; (3) McGregor relied on Young to
determine the tasks to be performed at the warehouse; (4) Young served as M.C.
Dean’s contact with Ryder and had the “latitude” to agree on changes or
modifications to the project; and (5) M.C. Dean’s Vice-President of Safety Bennett
testified McGregor had to rely on Young as his “lead person” to monitor safety at
the worksite. The ALJ found that although Young did not have the authority to
hire or fire, Commission precedent did not hold such power as the “sine qua non of
supervisory status.”
The ALJ also rejected M.C. Dean’s argument that it should not be cited
because of its effective safety rules and enforcement of those rules. The ALJ
found that although the lack of guarding of the skylights “was not ‘readily
apparent’ from the ground, the existence of the skylights was.” But when the M.C.
Dean crew determined that they needed to access the roof, no new risk assessment
Case: 11-13748 Date Filed: 02/01/2013 Page: 8 of 18

-- 8 of 18 --

9
was performed. Significantly, Young admitted that a skylight hazard should have
been included on the pre-task planner. Further, because M.C. Dean’s employees
rarely worked on roofs, the lack of experience with roofs made Young’s failure to
investigate the conditions on the roof and discuss safety issues related to the roof
even more questionable. Because the record evidence established that Young
failed to exercise reasonable diligence to anticipate the skylight hazard, and
because Young’s knowledge could be imputed to M.C. Dean, the ALJ upheld the
citation and assessed the proposed penalty.
The ALJ also rejected M.C. Dean’s affirmative defenses of infeasibility and
greater hazard because, respectively, (1) M.C. Dean failed to introduce any
evidence that installing fall protection for the skylights would have had a severe
adverse economic effect on the company; and (2) M.C. Dean failed to introduce
any evidence to establish that abating the skylight hazard would have been more
hazardous than allowing Quinn to walk on the roof unprotected.
M.C. Dean filed a petition for discretionary review with the Commission,
which was denied. M.C. Dean then filed the present petition for this Court’s
review.
II. STANDARD OF REVIEW
Where the Commission does not direct review of an ALJ’s decision, the
ALJ’s findings become the Commission’s. See 29 U.S.C. § 661(j).
Case: 11-13748 Date Filed: 02/01/2013 Page: 9 of 18

-- 9 of 18 --

10
The Court’s review of Commission decisions is limited and highly
deferential. See Fluor Daniel v. Occupational Safety & Health Review Comm’n,
295 F.3d 1232, 1236 (11th Cir. 2002). The Court must sustain the Commission’s
fact-findings as long as they are “supported by substantial evidence on the record
considered as a whole.” 29 U.S.C. § 660(a). “Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” J.A.M. Builders, Inc. v. Herman, 233 F.3d
1350, 1352 (11th Cir. 2000) (internal quotation marks omitted). The
Commission’s legal determinations will be upheld unless “they are ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with [the] law.’”
Fluor Daniel, 295 F.3d at 1236 (quoting 5 U.S.C. § 706(2)(A)). The Commission
and the ALJ are bound to follow the law of the circuit to which a case will likely
be appealed. See Interstate Brands Corp., 20 BNA OSHC 1102, at *2 n.7 (No. 00-
1077, 2003).
III. DISCUSSION
M.C. Dean challenges its citation for violating 29 C.F.R. § 1910.23(a)(4), a
standard which provides that “[e]very skylight floor opening and hole shall be
guarded by a standard skylight screen or a fixed standard railing on all exposed
sides.” See also 29 U.S.C. § 654(a)(2) (“Each employer . . . shall comply with
occupational safety and health standards promulgated under this chapter.”). To
Case: 11-13748 Date Filed: 02/01/2013 Page: 10 of 18

-- 10 of 18 --

11
make a prima facie showing of a violation of an OSHA standard, the Secretary of
Labor must prove that: (1) the standard applies; (2) the employer failed to comply
with the terms of the standard; (3) employees had access to the violative condition;
and (4) the employer had actual or constructive knowledge of the violation.
Access Equip. Sys., Inc., 18 BNA OSHC 1718, at *3 (No. 95-1449, 1999).
This appeal concerns only the fourth element. Specifically at issue is
whether M.C. Dean knew, or with the exercise of reasonable diligence could have
known, of the violative condition—that is, the unguarded skylights on the Ryder
facility’s roof. See Astra Pharm. Prods., 9 BNA OSHC 2126, at *4 (No. 78-6247,
1981). M.C. Dean argues that (1) the ALJ erred in imputing Boyd Young’s actual
or constructive knowledge to employer M.C. Dean, and (2) even if Young’s
knowledge could be imputed, Young had neither actual nor constructive
knowledge of the violative condition.
A. Whether Boyd Young is a supervisor whose knowledge is imputable to
employer M.C. Dean.
Actual or constructive knowledge of a violative condition can be imputed to
the cited employer through a supervisory employee. Access Equip. Sys., 18 BNA
OSHC at *9. “It is well-settled that an employee who has been delegated authority
over other employees, even if only temporarily, is considered to be a supervisor for
the purposes of imputing knowledge to an employer.” Id. But “[i]t is the
Case: 11-13748 Date Filed: 02/01/2013 Page: 11 of 18

-- 11 of 18 --

12
substance of the delegation of authority that is controlling, not the formal title of
the employee having this authority.” Id. (internal quotation marks omitted).
M.C. Dean argues that Young’s designation as lead or field supervisor was
not substantive and endowed him with no authority over his coworkers. M.C.
Dean contends that Young’s designation only meant he coordinated the project, but
he otherwise lacked other indicia of supervisory authority, like the ability to
discipline employees.
While the question is close, we conclude that the ALJ’s determination that
Young qualified as a supervisory employee was in accord with law and supported
by substantial evidence. The ALJ found, and we agree, that Young possessed
enough supervisory authority to qualify as a supervisor, most importantly the
authority to direct the work of the other team members. As the ALJ found: (1)
Young was the designated lead or field supervisor the day of the accident; (2)
Young controlled the “method and manner” in which the team performed the
assigned tasks, and maintained the ability to assign tasks to other employees; (3)
McGregor relied on Young to determine the tasks to be performed; (4) Young
served as M.C. Dean’s contact with Ryder and had the “latitude” to agree on
changes or modifications to the project; and (5) M.C. Dean’s Vice-President of
Safety, John Bennett, testified McGregor had to rely on Young as his “lead person”
to monitor safety at the worksite. The fact that Young lacked the ability to hire,
Case: 11-13748 Date Filed: 02/01/2013 Page: 12 of 18

-- 12 of 18 --

13
fire, or discipline other employees is not dispositive. Thus, the ALJ’s
determination that Young was a supervisor whose knowledge of the violative
skylight condition could be imputed to employer M.C. Dean was not in error. Cf.,
e.g., Diamond Installations, Inc., 21 BNA OSHC 1688, at *1-2 (No. 02-2080,
2006) (concluding that an employee qualified as an imputable supervisor for a
forklift-related citation where the employee (1) was selected by the employer to
serve as gang foreman; (2) could direct the work of the crew members and instruct
an uncooperative employee to report to the general foreman; and (3) was
responsible for the operation of the forklift and was instructed not to give the key
to an unauthorized forklift operator); Access Equip. Sys., 18 BNA OSHA at *9-10
(concluding that employee was imputable supervisor where employee was “in
charge of” the two other employees onsite); Ga. Elec. Co. v. Marshall, 595 F.2d
309, 321 & n.29 (5th Cir. 1979) (finding sufficient evidence that boom truck
operator was an imputable supervisor as he was in charge of the pole crew and
decided which poles would be erected, and the employer’s designated supervisor
had several other crews to supervise and spent less than one-half hour a day with
the pole crew).
B. Whether Young had constructive knowledge of the violative condition.
M.C. Dean next claims that the ALJ erred in equating Young’s knowledge
that an employee was going up on the roof with the company’s knowledge that the
Case: 11-13748 Date Filed: 02/01/2013 Page: 13 of 18

-- 13 of 18 --

14
employee would be exposed to a hazard. M.C. Dean argues that it was not
reasonably anticipated that any employee would be required to go on the roof to
perform work, and Quinn’s activities could have been completed without his ever
being exposed to the harm of going within six feet of an unguarded skylight.
The Secretary does not argue that M.C. Dean had actual knowledge of the
skylight hazard. Thus, the issue is whether M.C. Dean through its supervisor Boyd
Young had constructive knowledge of the hazard. Constructive knowledge is
established “by showing that an employer could have known of the violative
conditions if it had exercised reasonable diligence.” Phoenix Roofing, Inc., 17
BNA OSHC 1076, at *4 (No. 90-2184, 1995).
Here, the ALJ found that Young had constructive knowledge of the violative
condition and made findings that demonstrated Young’s constructive knowledge.
Those findings are supported by substantial evidence. The ALJ noted that while
the lack of guarding on the skylights was not apparent, the existence of the
skylights was. The M.C. Dean crew had worked within the Ryder facility for two
weeks and observed the skylights within the facility. Per OSHA’s regulations, a
skylight must “be guarded by a standard skylight screen or a fixed standard railing
on all exposed sides.” 29 C.F.R. § 1910.23(a)(4). Yet, when it was learned the
crew would have to access the roof, Young did not inquire as to whether the
skylights complied with that standard. While the facility did not belong to M.C.
Case: 11-13748 Date Filed: 02/01/2013 Page: 14 of 18

-- 14 of 18 --

15
Dean, Young testified that erecting a temporary guardrail around the skylights
would not have been difficult to do. Young also conceded that skylights were a
unique hazard that should have been included in the pre-task planner.
Young recognized the unique hazard presented by the skylights. And
Young, through the exercise of reasonable diligence, could have determined
whether the skylights were marked or guarded. Thus, Young had constructive
knowledge of the hazard. And as determined above, that constructive knowledge
may be imputed to M.C. Dean. Accordingly, we conclude that the ALJ’s fact-
findings are supported by substantial evidence and her legal determinations were in
accord with law when she found M.C. Dean had constructive knowledge of the
violative condition.4
C. M.C. Dean’s affirmative defenses.
Finally, M.C. Dean argues that the ALJ erred in rejecting M.C. Dean’s
4 M.C. Dean primarily relies on the Fifth Circuit’s decision in Horne Plumbing & Heating
Co. v. Occupational Safety & Health Review Commission, 528 F.2d 564 (5th Cir. 1976), but that
case is materially distinguishable. In Horne, the journeyman-foreman’s knowledge of a violative
condition was not imputed to the employer who had done everything within its power to
guarantee the safety of its employees. Id. at 570. The Fifth Circuit noted that the employer had
an outstanding safety program, and that both men killed in the accident were experienced
foremen and journeymen plumbers that had understood the employer’s safety instructions. Id. at
566-67. Accordingly, the Fifth Circuit held that “on the facts of this case, it was error to find
[the employer] liable on an imputation theory for the unforeseeable, implausible, and therefore
unpreventable acts of his employees.” Id. at 571. Here, although M.C. Dean maintained a six-
foot fall protection rule, it did not maintain a roof access policy prior to this incident. Further,
that six-foot rule was ineffective in this situation where the color and texture of the corrugated
roof and the skylight panels were nearly identical so that the skylights were not readily visible
when on top of the roof. In these particular circumstances, we cannot say M.C. Dean did
everything within its power to guard against this particular hazard.
Case: 11-13748 Date Filed: 02/01/2013 Page: 15 of 18

-- 15 of 18 --

16
affirmative defenses of infeasibility and greater hazard.
M.C. Dean argues that the ALJ wrongly concluded that safety measures
suggested by the compliance officer, which the ALJ acknowledged would take
between two and five hours to set up, were not infeasible where it was undisputed
that Quinn’s entire on-the-roof exposure required no more than 15 to 20 minutes.
And the ALJ wrongly dismissed the alternative means of fall protection that was in
fact implemented: the six-foot rule. It was possible to access all the points
necessary on the roof for the job without coming within six feet of a skylight or
unprotected edge.
To establish infeasibility, M.C. Dean must prove “(i) that compliance with a
particular standard either is impossible or will render performance of the work
impossible; and (ii) that it (the employer) undertook alternative steps to protect its
workers (or that no such steps were available).” Harry C. Crooker & Sons, Inc. v.
Occupational Safety & Health Review Comm’n, 537 F.3d 79, 82 (1st Cir. 2008);
see also, e.g., A.J. McNulty & Co., 19 BNA OSHC 1121, at *10 (No. 94-1758,
2000), petition for review denied, 284 F.3d 328 (D.C. Cir. 2002).
M.C. Dean claims that compliance with the cited standard would have been
economically infeasible because compliance would have required work on the roof
between two and five hours, whereas Quinn was able to complete his work on the
roof in approximately 15 to 20 minutes. However, to prove economic infeasibility,
Case: 11-13748 Date Filed: 02/01/2013 Page: 16 of 18

-- 16 of 18 --

17
M.C. Dean must show “that the increased length of time necessary would have had
a ‘severe adverse economic effect’ on the company.” Dayton Tire,
Bridgestone/Firestone, 23 BNA OSHC 1247, at *12 (No. 94-1374, 2010), aff’d in
part, vacated in part on other grounds, 671 F.3d 1249 (D.C. Cir. 2012); see also,
e.g., Crooker & Sons, 537 F.3d at 84 (rejecting infeasibility defense where, inter
alia, nothing in the record indicated that compliance with the OSHA standard
would “render the work so expensive as to become economically infeasible”).
Quite simply, M.C. Dean presented no evidence that compliance with the skylight
standard was impossible, would render performance of the work impossible, or
would cause severe financial hardship for the company.
M.C. Dean argues that the six-foot rule constituted adequate alternative
protection. But such a rule could not constitute adequate protection in a situation
in which the fall hazards from which the employee had to maintain a distance of at
least six feet were not readily discernible. Thus, the Commission did not err in its
conclusion that M.C. Dean failed to carry its burden to establish the affirmative
defense of infeasibility.
Finally, M.C. Dean’s last defense—that guarding the skylight presented a
greater hazard than allowing Quinn to work near the unguarded skylight—fails.
To establish the affirmative defense of greater hazard, the employer must prove
that: (1) the hazards of complying with the cited standard would have been greater
Case: 11-13748 Date Filed: 02/01/2013 Page: 17 of 18

-- 17 of 18 --

18
than the hazards of noncompliance; (2) alternative means of protecting employees
were either used or were not available; and (3) a variance was unavailable or
inappropriate. E&R Erectors, Inc. v. Sec’y of Labor, 107 F.3d 157, 163 (3d Cir.
1997).
In short, M.C. Dean presented no evidence that protecting against the hazard
presented a greater danger than allowing Quinn to walk on the roof unprotected.
Thus, the Commission properly rejected this defense.
IV. CONCLUSION
For the foregoing reasons, we deny M.C. Dean’s petition for review and
affirm the Commission’s decision.
AFFIRMED.
Case: 11-13748 Date Filed: 02/01/2013 Page: 18 of 18

-- 18 of 18 --