J.a.M. Builders v Herman

Decision Date07 December 2000
Docket Number11,9911917
PartiesJ.A.M. BUILDERS, INC., Petitioner, v. Alexis HERMAN, Secretary of Labor, and Occupational Safety and Health Review Commission, Respondents.United States Court of Appeals, Eleventh Circuit
CourtU.S. Court of Appeals — Eleventh Circuit

Petition for Review of an Order of the Occupational Safety and Health Review Commission.(No. 98-00823-OSHRC).

Before CARNES and BARKETT, Circuit Judges, and POLLAK*, District Judge.

BARKETT, Circuit Judge:

J.A.M. Builders, Inc., ("J.A.M.") petitions for review of a final decision of the Occupational Safety and Health Review Commission (the "Commission") affirming the administrative law judge's ("ALJ") finding that it willfully violated a safety regulation promulgated pursuant to the Occupational Safety and Health Act ("OSHA").

J.A.M. was a subcontractor at a construction site in Miami Beach, Florida, where an ironworker was killed by electrocution. After an investigation into the fatality, the Secretary of the Department of Labor (the "Secretary") issued a citation and notice of a proposed penalty against J.A.M., alleging various violations of OSHA safety standards. One of the charges alleged that J.A.M. willfully violated a construction industry safety standard that prohibits an employer from permitting its employees to work in such proximity to electrical power circuits that they could come into contact with them, without taking adequate precautions to protect employees from the risk of electric shock. On appeal, J.A.M. challenges the Commission's decision that it willfully violated this standard, arguing that the Commission's decision is not supported by substantial evidence and is not in accordance with the law. We review the Commission's findings of fact to determine whether they are supported by substantial evidence on the record as a whole; if so, they are deemed conclusive. See 29 U.S.C. 660(a); Niemand Indus., Inc. v. Reich, 73 F.3d 1083, 1084 (11th Cir.1996). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997). We also review whether the Commission's order is "in accordance with the law." Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1152 (11th Cir.1994).

The safety standard at issue, 29 C.F.R. 1926.416(a)(1), provides:

No employer shall permit an employee to work in such proximity to any part of an electric power circuit that the employee could contact the electric power circuit in the course of work, unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding it effectively by insulation or other means.

OSHA differentiates among violations of varying severity. J.A.M. was charged with the most severe offense, to wit, a "willful" violation pursuant to 29 U.S.C. 666(a), which is subject to the greatest penalties under the Act: a fine not less than $5,000 and up to $70,000, and the possibility of imprisonment if the willful violation causes an employee's death. See 29 U.S.C. 666(a), (e). See also United States v. Ladish Malting Co., 135 F.3d 484, 490 (7th Cir.1998) (differentiating various offenses under 29 U.S.C. 666).

The ALJ upheld the citation, finding that J.A.M. failed to adequately protect its employees working in proximity to energized electrical lines on November 5th through the 7th. The administrative record upon which the ALJ based his decision reflects the following. J.A.M. Builders was hired by Brodson Construction Company, the general contractor, to construct the shell of a three-story building. The new structure, measuring 85 feet long by 17 feet wide, was an addition to an existing building. At the time of the fatality, the structure stood approximately 20 feet tall.1 During the relevant time period, three energized, high-voltage electrical lines, or primary conductors, carrying 7,620 volts of electricity each, ran parallel to the building's east side approximately 8-12 feet above the structure. These lines were not insulated and were held up by one pole located at the northeast corner of the building, 19 inches away from the east wall, and by another pole at the southeast corner. After J.A.M. began its work on the building, company employees orally informed Brodson that the high-voltage lines needed to be rerouted. Five days before J.A.M. began working with steel on the third floor, J.A.M.'s project manager additionally wrote Brodson that a Florida Power & Light Co. ("FP&L") representative had instructed J.A.M. that work would not be allowed to continue in proximity to the lines unless they were moved, and requested Brodson to "coordinate with [FP&L] to have these lines moved." Before the ALJ, J.A.M. took the position that notwithstanding its letter to Brodson, J.A.M. had fabricated this story in order to shift blame to FP&L for any project delays.2 However, Canute Lobean, a compliance officer for the Secretary, and John Jacob, an FP&L claims agent, testified that the FP&L representative, Diego Borges, told them that he had warned J.A.M. about working in proximity to the energized lines.

On November 5, 1997, when J.A.M. began working with steel on the third floor, the energized lines along the building's east side had not been de-energized, rerouted, moved, or insulated. Nonetheless, ironworkers working for J.A.M. began hoisting narrow bars of reinforcing steel ("rebar"), measuring between 16-20 feet long, from the ground level to the third floor, passing it through a second-floor window and then through a four-foot by four-foot hole located between the second and the third floors. The rebar was passed up length-wise, and was angled at a forty-five degree angle opposite from the building's east wall and away from the energized lines, although it was tall enough that it could have touched the energized lines had it been stood up and/or leaned toward the east wall. After the rebar was lifted through the hole in the third floor, it was tied together on a 16-inch cinderblock, supported by a 4-inch piece of wood, to form an interlocking matting of steel, which was then placed over a wood frame to form the base of the floor, or deck, into which concrete would be poured. Rebar was also used by J.A.M. to build the frame for horizontal and vertical support beams on the third floor. The hole was closed on November 5 after J.A.M. thought it had finished its ironwork.

On November 6, 1997, J.A.M. discovered that it needed more rebar and began raising rebar to the third floor along the outside of the east wall. Under the direction of Juan Carlos Diaz, J.A.M.'s foreman, the ironworkers passed rebar length-wise directly from the ground level to the third floor, sometimes with the assistance of a worker positioned at the second-floor window. However, all work was stopped later that day by James Stowe, the ironworkers' union foreman, after he was informed by an electrician of the severe danger of working along the east wall close to the energized lines.

After Stowe stopped the work, J.A.M. management officials and representatives for the ironworkers met. The J.A.M. officials testified that at this meeting the parties agreed that the remaining rebar would be passed to the third floor along the north wall, instead of the east wall above which the energized lines were located. The ironworkers who attended the meeting testified that J.A.M. had agreed to cut a new hole in the floor, so that the rebar could be passed through as it had been on November 5. It is undisputed that a new hole was not cut into the floor.

The next day, November 7, the ironworkers' union substituted Larry Williams as foreman for Stowe, whom J.A.M. had fired.3 Williams was instructed by J.A.M. to pass the remaining rebar along the structure's north side. Notwithstanding these instructions, Williams and several ironworkers passed rebar along the east side. Williams was standing on the third floor deck and was receiving rebar from below when a 16-foot, 9-inch long piece of rebar he was holding came into contact with one of the high-voltage lines. Williams was electrocuted and died. Foreman Diaz testified that he was on site in J.A.M.'s office when the accident occurred. Ironworker Miguel Doreus testified that Diaz was at the site that day and that Diaz saw them working along the structure's east side.

Based on evidence presented that J.A.M. knew of the hazard involved both before work began and during construction of the structure's third floor, the ALJ found that J.A.M. had a "heightened awareness of the hazardous conditions," and concluded that its violation over the three days was "willful." The ALJ rejected J.A.M.'s affirmative defense that Williams had committed employee misconduct, reasoning that J.A.M. had not established work rules designed to prevent the violation and had no written safety program. The ALJ observed:

The deck was only 17 feet wide. The rebar was up to 20 feet long. The high voltage lines were 10 feet above the deck.... Walls of adjacent buildings abutted the west and south sides of the deck. Rebar lifted to the deck would, of necessity, come close to the energized lines. [J.A.M.] knew this long before the period of November 5, 1997, through November 7, 1997. It took no action to eliminate the hazard or guard the energized lines. It continued to allow its employees to work in close proximity to this hazardous condition throughout this three-day period until one employee finally contacted the high voltage lines with rebar in the course of his work....

Allowing employees to continue to work from November 5, 1997, through November 7, 1997, with [a] heightened awareness [of the hazardous conditions] clearly indicates [J.A.M.'s] conscious disregard for the requirements of the Act and plain indifference to the safety of its employees....

The ALJ assessed a $35,000 civil penalty for this violation. Because the Commission declined J.A.M.'s request to...

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