Mountain States Tel. and Tel. Co. v. Occupational Safety and Health Review Com'n

• Decision Date: 23 June 1980
• Docket Number: No. 78-1438,78-1438
• Parties: 8 O.S.H. Cas.(BNA) 1557, 1980 O.S.H.D. (CCH) P 24,565 The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ray Marshall, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 155

623 F.2d 155

8 O.S.H. Cas.(BNA) 1557, 1980 O.S.H.D. (CCH) P 24,565

The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ray

Marshall, Secretary of Labor, Respondents.

No. 78-1438.

United States Court of Appeals, Tenth Circuit.

Argued Sept. 14, 1979.

Decided June 23, 1980.

David R. Hansen, Denver, Colo., for petitioner.

Lorelei J. Borland, Atty., Washington, D. C. (Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Allen H. Feldman, Acting Counsel for Appellate Litigation, Dennis K. Kade, Asst. Counsel for Appellate Litigation, Washington, D. C., and Henry C. Mahlman, Associate Regional Sol., Denver, Colo., with her on the brief), U. S. Dept. of Labor, Washington, D. C., for respondents.

Before McWILLIAMS and LOGAN, Circuit Judges, and MILLER, Judge. ^*

LOGAN, Circuit Judge.

Mountain States Telephone and Telegraph Company seeks review of an order of the Occupational Safety and Health Review Commission, which found that Mountain States had committed a serious violation of a safety standard promulgated by the Secretary of Labor and assessed a $500 civil penalty. See 29 U.S.C. §§ 654(a)(2), 666(b), 666(j). Mountain States contends the order must be set aside because the Commission's findings and conclusions are "arbitrary, capricious, . . . or otherwise not in accordance with law," 5 U.S.C. § 706(2) (A), and are not supported by substantial evidence in the record viewed as a whole. See 29 U.S.C. § 660(b). For the reasons expressed below, we hold the Commission acted arbitrarily in the circumstances of this case; we therefore do not treat the substantial evidence issue.

In April 1975 two Mountain States employees, Howard Halverson, an experienced subforeman, and Mark E. Trenary, a first year apprentice lineman, were dispatched to install new telephone wire on utility poles shared with an electric power company. During this operation an untied telephone line contacted an energized power line, which caused the electrocution and death of Halverson. Halverson was not wearing rubber gloves at the time, although rubber gloves were present in the employees' vehicle.

Because Halverson failed to wear rubber gloves while exposed to possible high voltage contact, Mountain States was cited by the Secretary of Labor for a serious violation ¹ of 29 C.F.R. 1910.132(a). ² See 29 U.S.C. § 666(j). After an evidentiary hearing, the administrative law judge vacated the citation because he found Mountain States did not know that Halverson was not wearing rubber gloves on this occasion and the totality of the record failed to establish that Mountain States should have known of the likelihood of the violation.

On appeal to the Commission the administrative law judge's decision was reversed and the citation reinstated. Mountain States Tel. & Tel. Co., (1978) Occup. Safety & Health Dec. (CCH) P 22,668. The Commission stated the issue to be "whether a violation of safety standards committed by a supervisory employee can be imputed to (Mountain States)." It reasoned that ordinarily the knowledge and actions of such an employee are to be imputed to the employer, and that the employer could defend by showing that the violation was unpreventable and therefore unforeseeable. "The employer can establish this defense by showing that it had an effective safety program designed to prevent the violation, including adequate safety instructions effectively communicated to employees, means of discovering violations of these instructions and enforcement of safety rules when violations are discovered." Mountain States Tel. & Tel. Co., (1978) Occup. Safety & Health Dec. (CCH) P 22,668, at 27,354. The Commission then held that Mountain States failed to show Halverson's violation of the standard was unpreventable because it did not show the enforcement of its safety program was adequate. ³

Commission rule 73(a), 29 C.F.R. § 2200.73(a), provides that "(i)n all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the Secretary." Reasonably construed, this rule requires the Secretary to prove the elements of a violation. See Brennan v. OSHRC, 511 F.2d 1139 (9th Cir. 1975). The question we decide here is whether the Commission erred when it placed upon Mountain States the burden of proving the violation was unpreventable. The Fourth Circuit, in reviewing a Commission decision involving circumstances similar to those here, held the Commission may not place the burden on the employer. Ocean Elec. Corp. v. Secretary of Labor, 594 F.2d 396 (4th Cir. 1979). See also Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976); Brennan v. OSHRC, 511 F.2d 1139 (9th Cir. 1975). But see Danco Const. Co. v. OSHRC, 586 F.2d 1243, 1247 n. 6 (8th Cir. 1978). We agree with the result reached by the Fourth Circuit.

The Commission has consistently held that to establish a serious violation the Secretary must prove the employer knew or should have known of the likelihood of the noncomplying condition or conduct. E. g., Harvey Workover, Inc., (1979) Occup. Safety & Health Dec. (CCH) P 23,830. Accord, Brennan v. OSHRC, 511 F.2d 1139 (9th Cir. 1975). Here, however, the Commission seems to have determined that the Secretary's burden of showing the employer's knowledge was met by proof that Halverson had some supervisory responsibilities and that Halverson knew his own failure to wear rubber gloves was a violation. The premise is that because a corporate employer acts and acquires knowledge through its agents, ordinarily the actions and knowledge of its supervisory employees are imputed to the...