Byrd Telcom, Inc. v. Occupational Safety & Health Review Commission
657 F. App'x 312
| 5th Cir. | 2016Background
- Byrd Telcom subcontracted to upgrade a 300-foot Verizon cell tower in Mississippi; while hoisting a 40-foot, ~1,800 lb steel gin pole, a carabiner in the rigging failed and two workers were killed.
- Byrd employees used a carabiner (PenSafe Model C775) instead of the customary shackle-and-choker rigging; the carabiner was intended for fall protection, not heavy hoisting.
- Byrd relied on a predecessor’s safety manual, had no specific gin-pole rigging rules or training, and did not discipline the employee who chose the carabiner.
- OSHA issued a citation under the General Duty Clause, alleging two serious violations (Instance (a): improper top (hook) block / rigging; Instance (c): gin-pole sections not permanently marked to reference a load chart); proposed penalties totaled $14,000, reduced to $7,000 for the two surviving instances.
- The ALJ found Byrd an employer under the OSH Act, affirmed both serious violations, and imposed a $7,000 penalty; the Commission declined discretionary review and the Fifth Circuit affirmed on substantial-evidence review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Byrd had employer knowledge (constructive or actual) of the hazardous rigging (Instance (a)) | Secretary: Byrd’s inadequate safety program gave it constructive knowledge; violation was foreseeable | Byrd: Foreman Davidson’s conduct was personal misconduct; his knowledge should not be imputed because Byrd had policies and supervision (relying on Horne/W.G. Yates) | Court: Substantial evidence supports constructive knowledge due to inadequate safety program; affirmed serious violation for Instance (a) |
| Whether gin-pole sections were properly marked referencing a load chart (Instance (c)) | Secretary: Sections on site were not marked and no correct load chart was present, creating a recognized hazard | Byrd: Industry custom does not require marking every section if identification suffices | Court: Substantial evidence that on-site sections lacked markings and no load chart was present; serious violation affirmed without resolving whether single marking might suffice |
| Challenge to ALJ witness-credibility findings | Byrd: ALJ improperly credited certain witnesses (e.g., Davidson) | Secretary: ALJ credibility determinations entitled to deference | Court: ALJ gave adequate reasons for credibility findings; no basis to overturn |
Key Cases Cited
- Chao v. OSHRC, 401 F.3d 355 (5th Cir. 2005) (defines substantial-evidence review standard)
- Consolo v. Fed. Mar. Comm’n, 383 U.S. 607 (U.S. 1966) (definition of substantial evidence)
- Reich v. Arcadian Corp., 110 F.3d 1192 (5th Cir. 1997) (General Duty Clause is a catch-all when no specific standard applies)
- Nat’l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973) (employer duty to discover and exclude feasibly preventable hazardous conduct)
- Getty Oil Co. v. OSHRC, 530 F.2d 1143 (5th Cir. 1976) (General Duty Clause not for respondeat-superior; employers must discover/prevent hazardous conduct)
- W.G. Yates & Sons Const. Co. v. OSHRC, 459 F.3d 604 (5th Cir. 2006) (unpreventable employee misconduct defense elements and imputing supervisor knowledge)
- Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976) (supervisor’s malfeasance not imputable where employer’s safety program makes conduct unforeseeable)
- Trinity Marine Nashville, Inc. v. OSHRC, 275 F.3d 423 (5th Cir. 2001) (standard for reviewing ALJ legal conclusions)