Carlisle Equipment Co. v. U.S. Secretary of Labor and Occupational Safety

• Decision Date: 01 April 1994
• Docket Number: No. 93-3014,93-3014
• Citation: 24 F.3d 790
• Parties: 16 O.S.H. Cas. (BNA) 1681, 16 O.S.H. Cas. (BNA) 1824, 1994 O.S.H.D. (CCH) P 30,424 CARLISLE EQUIPMENT COMPANY, Petitioner, v. UNITED STATES SECRETARY OF LABOR AND OCCUPATIONAL SAFETY and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 790

24 F.3d 790

16 O.S.H. Cas. (BNA) 1681, 16 O.S.H. Cas. (BNA) 1824,

1994 O.S.H.D. (CCH) P 30,424

CARLISLE EQUIPMENT COMPANY, Petitioner, v. UNITED STATES SECRETARY OF LABOR AND OCCUPATIONAL SAFETY and Health Review Commission, Respondents.

No. 93-3014.

United States Court of Appeals,

Sixth Circuit.

Argued Nov. 30, 1993.

Decided April 1, 1994 ^*.

Michael S. Glassman (argued and briefed), Gary L. Herfel, Dinsmore & Shohl, Cincinnati, OH, for Carlisle Equipment Co.

Ray Darling, Secretary, OSHRC, Washington, DC, Daniel J. Mick, U.S. Department of Labor, Office of the Sol., Washington, DC, William S. Kloepfer, Office of the Sol., U.S. Dept. of Labor, Cleveland, OH, for Occupational Safety & Health Review Comm'n.

Ray Darling, Secretary, OSHRC, Ann Rosenthal, Daniel J. Mick, Jennifer U. Toth (argued and briefed), U.S. Dept. of Labor, Office of the Sol., Washington, DC, William S. Kloepfer, Office of the Sol., U.S. Dept. of Labor, Cleveland, OH, for United States Secretary of Labor.

Before: JONES and SUHRHEINRICH, Circuit Judges; and McKEAGUE, District Judge. ^**

SUHRHEINRICH, Circuit Judge.

Defendant Carlisle Equipment Co. ("Carlisle Equipment") appeals the Occupational Safety and Health Review Commission's ("the Commission") decision, holding it liable for two safety violations which occurred during renovation of the Montgomery County courthouse. The issues presented are (1) whether the Commission erred in upholding a citation against Carlisle Equipment for committing a serious violation in attempting to lift a 5800-pound air conditioning unit using a crane configured to have a capacity of 3700 pounds, and (2) whether the Commission violated Carlisle Equipment's due process in amending the complaint to include a citation for the lift of a second cooling unit from a delivery truck to the ground. We AFFIRM on the first issue and REMAND the second issue for the reasons discussed below.

I.

Carlisle Equipment, a crane rental company, rented a crane and operator to Oberle/Jordre/Muth Brothers ("Muth"), a rigging company hired to remove an old air conditioner from the Montgomery County courthouse. Muth told Robert Carlisle, a branch manager for Carlisle Equipment, that the air conditioning unit weighed 3400 pounds; however, it actually weighed 5800 pounds. Robert Carlisle did not verify the weight of the load, but determined, based upon the inaccurate information provided by Muth, that the lift could be made with a 65-ton hydraulic truck crane with a 186-foot boom. The crane he selected for Muth could lift a maximum of 3700 pounds.

Prior to the scheduled lift, Carlisle and the crane operator, Cecil Johnson, went to the courthouse to determine where to place the crane, and how far the boom should be extended to perform the lift of the air conditioner from the roof. On lift day, before Johnson positioned the crane for removal of the old air conditioner, Muth asked Johnson to unload a new air conditioner from a truck bed. Johnson sought permission from Robert Carlisle to unload the unit which weighed 5500 lbs. Johnson testified that Robert Carlisle authorized its removal even though the weight of the new air conditioner exceeded the capacity of the crane, because given the safety factor, Robert Carlisle believed the crane would not be compromised. Johnson did remove the unit from the truck without incident; however, when Johnson attempted to remove the old air conditioner from the building, the boom of the crane collapsed because the actual weight of the conditioner grossly exceeded the capacity of the crane.

After the accident, OSHA safety compliance officer Richard Liston investigated the circumstances and issued citations on behalf of the Secretary of Labor to both Carlisle Equipment and Muth. The citation issued to Carlisle Equipment cited violations of Sec. 5(a)(2) of the Act and 29 C.F.R. Sec. 1926.550(a)(1) ¹, for failure to comply with the manufacturer's specifications as to the operation of the crane. Carlisle Equipment contested the citation and after a hearing before an Administrative Law Judge ("ALJ"), the citation was affirmed. Carlisle Equipment petitioned the Commission for review. Because no member directed review within thirty days, the ALJ's decision became its final order. 29 U.S.C. Sec. 661(j). Carlisle Equipment then petitioned this court to reverse the final order. 29 U.S.C. Sec. 660(a).

II.

The Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 651 et seq., ("OSHA") provides that the Secretary of Labor may promulgate safety and health standards and requires each employer to comply with these standards. 29 U.S.C. Secs. 654(a)(2), 665. Review of an OSHA decision is limited and findings of fact are conclusive if supported by substantial evidence on the record. Dunlop v. Rockwell Int'l, 540 F.2d 1283, 1287 (6th Cir.1976). Determinations on issues of law must be upheld unless "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Empire-Detroit Steel Div. v. Occupational Safety and Health Review Comm'n, 579 F.2d 378, 383 (6th Cir.1978). To establish a violation pursuant to Sec. 5(a)(2) of the Act, the Secretary must show by a preponderance of the evidence that (1) the cited standard applies to the facts, (2) the requirements of the standard were not met, (3) employees had access to the hazardous condition, and (4) the employer knew or could have known of the hazardous condition with the exercise of reasonable diligence. Walker Towing Corp., 14

BNA OSHC 2072, 1991 CCH OSHD p 29,239 (No. 87-1359, 1991).

III.

Carlisle Equipment contends that the Commission erred in upholding the citation for two reasons: (1) Carlisle Equipment had no actual or constructive knowledge of the hazardous condition; and (2) Carlisle Equipment was not in control of the site or lift. In addressing the first argument, it is undisputed that Carlisle had no actual knowledge that the weight of the air conditioner exceeded the manufacturer's specifications on the capacity of the crane. Carlisle believed the weight of the unit was 3400 pounds, a weight within the capacity of the crane. Constructive, not actual knowledge, is at issue. To show constructive knowledge, the Secretary must prove, that Carlisle "could have known with the exercise of reasonable diligence of the noncomplying condition." Secretary of Labor v. MCC of Florida, Inc., 1981 WL 18903, * 4 (O.S.H.R.C. May 28, 1981). Here, the ALJ's finding that Carlisle Equipment could have known with the exercise of reasonable diligence that the crane was insufficient to make the lift is supported by substantial evidence in the record. In deciding whether Carlisle Equipment had constructive knowledge, the ALJ noted that Carlisle Equipment's failure to follow the normal procedure of observing the load before making a lift or by taking other steps to insure it received accurate information concerning the weight demonstrated its failure to exercise reasonable diligence.

From the facts the ALJ concluded that Muth's reputation and past relationship with Carlisle Equipment were insufficient bases to foreclose responsibility on Carlisle Equipment. Although Muth assured Carlisle of the weight on three occasions, the estimates were vastly different, varying from 3400 pounds to 1300 pounds. Further, Robert Carlisle never went up to the roof to observe the unit, despite a standard practice to do so. A visual inspection would have shown that the unit was large, made of metal and wood, and filled with debris. Moreover, the new unit weighed substantially more than the estimate given for the old unit, a fact that, in light of all the other facts, should have triggered a question as to accuracy of the estimate. Finally, the crane, configured to have a maximum capacity of 3700 pounds, gave only 300 pounds leeway over the weight estimate given by Muth. With the weight of the crane attachments added to the lift, there was less than 100 pounds excess capacity. Consequently, the ALJ concluded that any reasonably diligent crane operator would have made some effort to ascertain the accuracy of the estimate, and that Carlisle Equipment had constructive knowledge of the violation.

Carlisle Equipment's argument that industry practice ² places sole responsibility for determining the weight of the load on the rigging contractor does not absolve it of responsibility for both legal, factual, and policy reasons. Legally, the industry practice had no application to this violation. ³ Although it is normally considered in cases cited under Sec. 5(a)(1) of the Act, the General Duty Clause, ⁴ or in connection with certain personal protective equipment standards where means of compliance are not specified, where the Secretary has cited under Sec. 5(a)(2) of the Act, and the cited standard "prescribes the required conduct in specific terms," and industry practice is inapplicable. See Cleveland Elec. Illuminating Co., 14 BNA OSHC 1729, 1990 CCH OSHD p 29,0494 (No. 84-593, 1989), rev'd on other grounds, 910 F.2d 1333 (6th Cir.1990). Here, the Secretary explicitly requires compliance with manufacturer's specifications.

Second, although ANSI standards place the obligation on Muth to determine weight, here, Muth's reputation and experience were called into question because of the changing weight estimates and other above-mentioned factors. Accordingly, we find the ALJ's finding that Carlisle Equipment had constructive knowledge of the violation is supported by the record. Reasonable diligence implies effort, attention, and action not mere reliance upon the action of another. Carlisle Equipment's conduct did not meet this standard.

Carlisle Equipment's assertion that the Commission's decision fundamentally changes industry practice by requiring rental companies to become rigging companies is an overstatement. We...