Empire Roofing Company Southeast, LLC v. Occupational Safety and Health Review Commissioner
711 F. App'x 570
| 11th Cir. | 2017Background
- Empire Roofing foreman and two employees were at a commercial roof worksite; OSHA inspected in April 2013.
- Foreman was observed in an elevated aerial lift (16–20 ft) without a harness; two employees had been transported to the roof in the lift and also did not wear harnesses during transport.
- Foreman admitted in a written statement he hadn’t worn a harness because he was in a hurry and accepted fault.
- Secretary cited Empire for violating 29 C.F.R. § 1926.453(b)(2)(v) (body belt and lanyard required "when working from an aerial lift").
- An ALJ and then the OSHA Review Commission upheld the citation, concluding "working from an aerial lift" includes riding/transport in the lift and that the foreman’s knowledge of subordinates’ nonuse was imputed to Empire.
- Empire petitioned for review, challenging (1) whether "when working from an aerial lift" covers riding in the lift and (2) whether the foreman’s knowledge could be imputed to the employer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "when working from an aerial lift" includes riding/transport in the lift | Phrase is plain; "working from" means performing work, not transport | Agency and Commission: includes work-related activities such as gaining access/transport | Court: Not plain; agency interpretation reasonable — includes riding/transport |
| Whether foreman’s knowledge imputes employer knowledge for subordinates’ violations | Foreman facilitated transport; his rogue conduct should not be imputed to employer | Secretary/Commission: supervisor’s knowledge of subordinate violation is imputed when supervisor oversees compliance and observes violation | Court: Foreman’s own violation not imputed, but his knowledge of subordinates’ nonuse was properly imputed to Empire |
Key Cases Cited
- Fluor Daniel v. Occupational Safety & Health Review Comm'n, 295 F.3d 1232 (11th Cir. 2002) (Commission decisions entitled to considerable deference)
- ComTran Group, Inc. v. U.S. Dep't of Labor, 722 F.3d 1304 (11th Cir. 2013) (elements to prove OSHA violation; imputation principles)
- Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144 (1991) (deference to agency interpretations of its regulations)
- Quinlan v. Secretary, U.S. Dep't of Labor, 812 F.3d 832 (11th Cir. 2016) (imputation of supervisor knowledge to employer where supervisor observes subordinate violation)
- Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005) (statutory/regulatory interpretation first by plain meaning and context)
- CBS Broadcasting Inc. v. Echostar Communications Corp., 532 F.3d 1294 (11th Cir. 2008) (if statute/regulation unambiguous, no further inquiry)
- Georgia-Pacific Corp. v. Occupational Safety & Health Review Comm'n, 25 F.3d 999 (11th Cir. 1994) (OSHA’s purpose to assure safe working conditions)
- Brock v. Williams Enterprises of Georgia, Inc., 832 F.2d 567 (11th Cir. 1987) (agency construction of its regulations warrants substantial deference)