Comtran Group, Inc. v. U.S. Department of Labor, 722 F.3d 1304

ComTran supervisor Walter Cobb dug and widened a trench to six feet, creating a five-foot spoil pile at the trench edge (an 11-foot unsupported wall); OSHA observed the condition and cited ComTran for serious violations of 29 C.F.R. §§ 1926.651(j)(2) and 1926.652(a)(1).
OSHA proved the regulation applied, a violation occurred, and an employee (Cobb) was exposed to the hazard; the sole contested element was employer knowledge.
At the ALJ hearing the Secretary relied only on the supervisor’s own conduct as proof of employer knowledge; ComTran offered evidence about its safety program and asserted the unpreventable-employee-misconduct defense.
The ALJ and Commission imputed Cobb’s knowledge to ComTran and sustained the citations; ComTran petitioned for review in the Eleventh Circuit.
The Eleventh Circuit reviewed circuit authority and held that proof of a supervisor’s personal misconduct, standing alone, does not satisfy the Secretary’s burden to show employer knowledge; the case was reversed and remanded for further proceedings.

Issue	Plaintiff's Argument (Secretary)	Defendant's Argument (ComTran)	Held
Whether a supervisor’s knowledge of his own violative conduct may be imputed to the employer to satisfy OSHA’s knowledge element	Proof that the supervisor personally engaged in the violation suffices to impute knowledge to the employer	Imputing a supervisor’s own rogue misconduct to the employer improperly shifts the Secretary’s burden; employer lacked actual or constructive knowledge absent other proof	The Secretary cannot rely solely on a supervisor’s own misconduct; she must present independent evidence (e.g., foreseeability via lax safety program) to establish employer knowledge
Whether the Commission’s imputation error was harmless given the record	The record shows ComTran’s safety program was inadequate, so error was harmless	ComTran was prejudiced because the Secretary never had to prove employer knowledge and ComTran did not have to present full rebuttal evidence	Error was not harmless; remand required for further development of the record

Ocean Elec. Corp. v. Secretary of Labor, 594 F.2d 396 (4th Cir. 1979) (supervisor’s isolated/ unforeseeable misconduct not enough to impute employer knowledge; Secretary must prove foreseeability)
Mountain States Tel. & Tel. Co. v. Occupational Safety & Health Review Comm’n, 623 F.2d 155 (10th Cir. 1980) (refused to shift burden to employer where supervisor was the malfeasant; Secretary must prove employer knowledge)
Pennsylvania Power & Light Co. v. Occupational Safety & Health Review Comm’n, 737 F.2d 350 (3d Cir. 1984) (Secretary must bear burden to prove employer knowledge; imputing a supervisor’s own misconduct improperly shifts burden)
W.G. Yates & Sons Constr. Co. v. Occupational Safety & Health Review Comm’n, 459 F.3d 604 (5th Cir. 2006) (adopted foreseeability/imputation framework; remanded where ALJ failed to analyze foreseeability)
Danis-Shook Joint Venture XXV v. Secretary of Labor, 319 F.3d 805 (6th Cir. 2003) (contrasting view: imputed supervisor’s knowledge of his own failure to employer)
New York State Elec. & Gas Corp. v. Secretary of Labor, 88 F.3d 98 (2d Cir. 1996) (discusses interplay of Secretary’s prima facie burden and employer’s unpreventable-misconduct defense; constructive knowledge shown via inadequate safety program)
Horne Plumbing & Heating Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 564 (5th Cir. 1976) (courts should not require measures beyond what is reasonable; relevant to foreseeability/unpreventability analysis)