535 F. App'x 386
5th Cir.2013Background
- Deep South petitioned for review of an OSHA Commission order after a VersaCrane TC36000 collapsed in July 2008, killing four employees.
- OSHA found hazards from allowing an unqualified operator (Odom) to operate the TC36000 and from supervisor Aydell’s inadequate supervision.
- OSHA issued three citations; two were consolidated for review: a general duty clause violation and a repeat violation of 29 C.F.R. § 1926.20(b)(4).
- The general duty clause violation rested on the failure to ensure Odom was qualified, including reading load charts, testing, and a practical exam.
- The § 1926.20(b)(4) violation was deemed a repeat violation because a prior, final citation for the same standard existed from 2007.
- The Commission affirmed the ALJ’s findings, and the Fifth CircuitDENIED Deep South’s petition, finding substantial evidence supports the violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| General duty clause violation supported by substantial evidence | Deep South argues Odom qualified as operator-in-training under supervision | Secretary showed hazard and inadequate supervision | Yes, upheld |
| Repeat violation under § 1926.20(b)(4) supported | Prior 2007 violation involved different crane; not substantially similar | Hazard and standard were substantially similar; repeat term applies | Yes, upheld |
| Foreseeability of the violation by Deep South | Instructions to Aydell were insufficient to make the failure unforeseeable | Evidence shows foreseeable risk due to inadequate training | Foreseeable; supported by substantial evidence |
Key Cases Cited
- Chao v. Occupational Safety & Health Review Comm’n, 401 F.3d 355 (5th Cir. 2005) (substantial evidence review standard; supervisor knowledge not imputable in certain contexts)
- W.G. Yates & Sons Constr. Co. Inc. v. Occupational Safety & Health Review Comm’n, 459 F.3d 604 (5th Cir. 2006) (supervisor knowledge not imputable to employer when conduct unforeseeable)
- Bunge Corp. v. Sec’y of Labor, 638 F.2d 831 (5th Cir. 1981) (repeat violation analysis; substantial similarity of hazards)