Southern Pan Services v. U.S. Department of Labor
685 F. App'x 692
| 11th Cir. | 2017Background
- Partial collapse of a six-story poured-in-place concrete parking garage in Jacksonville, FL on Dec. 6, 2007; one Southern Pan employee died and others were injured.
- Southern Pan was subcontractor responsible for obtaining shoring/reshoring drawings and installing shoring/reshoring formwork; it shifted to a 1-over-2 shoring method and removed shoring/reshoring from the first three levels contrary to the only engineering drawings on site.
- While another contractor poured wet concrete on the sixth floor, the structure—without shoring/reshoring to ground—could not support the load and pancaked.
- Secretary of Labor cited Southern Pan for two willful OSHA violations: (1) failing to have a qualified person determine that formwork/structure could support wet concrete loads (29 C.F.R. §1926.701(a)); (2) failing to maintain up-to-date drawings/plans for formwork and shoring at the jobsite (29 C.F.R. §1926.703(a)(2)).
- The Occupational Safety and Health Review Commission affirmed both willful citations and assessed $125,000; Southern Pan appealed to the Eleventh Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1926.701(a) applies to Southern Pan | §1926.701(a) applies only to the employer "directly responsible for concrete operations," not Southern Pan | Commission can apply exposing-employer doctrine to employers whose own employees are exposed | §1926.701(a) applies to Southern Pan as an "exposing employer" |
| Whether §1926.703(a)(2) required drawings for the 1-over-2 method | §1926.703(a)(2) did not require creation of drawings for the revised 1-over-2 shoring | A change to 1-over-2 was a revision; §1926.703(a)(2) requires updated plans on site | Failure to maintain revised drawings violated §1926.703(a)(2) |
| Whether evidence supports willful violation of §1926.701(a) | Southern Pan contends lack of responsibility for concrete operations and challenges willfulness finding | Commission found supervisors knew they needed load calculations and knowingly removed shoring without them | Substantial evidence supports willful violation of §1926.701(a) |
| Whether evidence supports willful violation of §1926.703(a)(2) | Southern Pan argues isolated supervisor action or compliance via alternative standard (§1926.703(e)) | Multiple supervisors knew, inspected, ratified removal, and no revised plans existed; §1926.703(e) not a substitute | Substantial evidence supports willful violation of §1926.703(a)(2) |
Key Cases Cited
- Fluor Daniel v. Occupational Safety & Health Review Comm’n, 295 F.3d 1232 (11th Cir.) (Commission decisions entitled to deference; willfulness is a factual finding)
- J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350 (11th Cir.) (substantial-evidence review standard description)
- Lewis v. Callahan, 125 F.3d 1436 (11th Cir.) (definition of substantial evidence as more than a scintilla)
- Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir.) (earlier decision addressing employer responsibility under OSHA cited by parties)
- Central of Ga. R. Co. v. Occupational Safety & Health Review Comm’n, 576 F.2d 620 (5th Cir.) (upheld exposing-employer doctrine as reasonable)
- Kelliher v. Veneman, 313 F.3d 1270 (11th Cir.) (review court will not reweigh credibility determinations)
- Comtran Group, Inc. v. United States Dep’t of Labor, 722 F.3d 1304 (11th Cir.) (contrasted facts where a single supervisor acted independently)
- Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. en banc) (11th Circuit bound by Fifth Circuit decisions predating Oct. 1, 1981)