928 F.3d 105
D.C. Cir.2019Background
- Griffin Electric contracted to upgrade electrical systems at Fidelity-owned offices; foreman Keith Piechocki prepared MOP-51 for substation work.
- MOP-51 required de-energizing the substations but omitted de-energizing a metal bar that was in fact energized; Piechocki assumed (incorrectly) the bar was not live despite project drawings indicating otherwise.
- Piechocki shared the MOP with Fidelity, other contractors, and Griffin supervisors; no one caught the omission.
- Griffin had general safety policies (No Live Work; Test Before You Touch), but the ALJ found they were not effectively communicated to Piechocki.
- While working, employee Brian Jusko touched the energized bar, suffered serious injury; OSHA cited Griffin for two serious violations and proposed penalties; ALJ affirmed violations and assessed a penalty.
Issues
| Issue | Griffin's Argument | Secretary's Argument | Held |
|---|---|---|---|
| Whether Griffin violated 29 C.F.R. § 1926.416(a)(3) (duty to ascertain energized parts) and § 1926.416(a)(1) (prohibition on working near live parts) | Griffin: It complied via general safety policies, MOP process, and reliance on experienced foreman Piechocki | Griffin failed to ascertain the hazard; the bar was energized and accessible, so both standards apply and were breached | Court: Substantial evidence supports ALJ that Griffin violated both standards |
| Whether Griffin lacked actual or constructive knowledge of the violative conditions | Griffin: No company-level knowledge; any foreman error should not be imputed to employer | Secretary: Foreman had actual/constructive knowledge and his knowledge is imputable to employer under agency principles | Court: ALJ permissibly imputed Piechocki’s knowledge to Griffin; foreseeability of supervisor’s carelessness was supported by record |
| Whether Griffin is entitled to the unpreventable employee-misconduct defense | Griffin: Policies and MOPs show rules were in place and enforced; incident was unforeseeable misconduct | Secretary: Policies were not adequately communicated; foreman confusion negates defense | Court: Griffin failed to prove adequate communication (element 2); defense rejected |
Key Cases Cited
- AJP Constr., Inc. v. Sec'y of Labor, 357 F.3d 70 (D.C. Cir. 2004) (defines elements of a "serious" OSHA violation)
- Frank Lill & Son, Inc. v. Sec'y of Labor, 362 F.3d 840 (D.C. Cir. 2004) (elements of unpreventable employee misconduct defense)
- Am. Wildlands v. Kempthorne, 530 F.3d 991 (D.C. Cir. 2008) (procedural rule limiting new arguments in reply briefs)
- Dana Container, Inc. v. Sec'y of Labor, 847 F.3d 495 (7th Cir. 2017) (discusses imputation of supervisor knowledge to employer)
- Danis-Shook Joint Venture XXV v. Sec'y of Labor, 319 F.3d 805 (6th Cir. 2003) (approach to imputing supervisor knowledge)
- W.G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604 (5th Cir. 2006) (requires foreseeability for imputation in some circuits)
- Ocean Elec. Corp. v. Sec'y of Labor, 594 F.2d 396 (4th Cir. 1979) (imputation/foreseeability discussion)