U.S. v. Pitt-Des Moines, Inc., PITT-DES

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Citation: 168 F.3d 976
• Docket Number: PITT-DES,No. 98-1767,98-1767
• Parties: 51 Fed. R. Evid. Serv. 588, 18 O.S.H. Cas. (BNA) 1609 UNITED STATES of America, Plaintiff-Appellee, v.MOINES, INC., Defendant-Appellant.
• Decision Date: 18 February 1999

Page 976

168 F.3d 976 51 Fed. R. Evid. Serv. 588, 18 O.S.H. Cas. (BNA) 1609 UNITED STATES of America, Plaintiff-Appellee,
v.
PITT-DES MOINES, INC., Defendant-Appellant. No. 98-1767. United States Court of Appeals,
Seventh Circuit. Argued Oct. 27, 1998.
Decided Feb. 18, 1999.

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Mark S. Hersh (argued), Office of U.S. Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

R. Henry Moore (argued), Buchanan Ingersoll Professional Corp., Pittsburgh, PA, for Defendant-Appellant.

Before CUMMINGS, CUDAHY, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

During construction of the U.S. Postal Service's ("USPS") General Mail Facility on West Polk Street in Chicago (the "post office project"), part of the steel structure collapsed, killing two ironworkers. Following an investigation by the Occupational Safety and Health Administration ("OSHA"), a federal grand jury indicted Pitt-Des Moines, Inc. ("PDM"), the steel erection subcontractor on the project, for willfully violating provisions of the Occupational Safety and Health Act (the "Act") resulting in the two deaths. A jury found PDM guilty, and it was fined $1,000,000 and placed on probation for five years. The contractor appeals, challenging a number of the district court's rulings. We now affirm PDM's conviction.

Background

Before breaking ground on the post office project, the USPS selected Hyman/Power as the general contractor and Turner/Ozanne as the USPS's on-site representative. Hyman/Power then contracted with PDM to fabricate and erect the structural steel for the project. PDM in turn subcontracted out part of the steel erection work to MA Steel. Both PDM and MA Steel hired workers from Local 1 of the Ironworkers Union, and construction began in March 1993.

Steel erection takes place in three phases. First, during "raising", a raising gang hoists the steel members ¹ from the ground by crane, placing each member on the steel structure and temporarily connecting the pieces together with bolts. Next, the connections between the pieces are straightened and secured during "bolt-up". Here, a crew follows the raising gang, adding additional bolts, replacing and tightening them if necessary and checking to see that the structure is properly aligned. Finally, welders follow the bolt-up crew making the structure permanent by welding each connection. The lag time between each phase is typically a day or two. This was the procedure followed by PDM and MA Steel during the post office project.

Soon after the steel erection began, a representative of Turner/Ozanne, Ralph Miserindo, noticed that PDM's raising gang was installing only one bolt in some horizontal beams after hoisting them into place. Concerned that a single bolt would not secure the beams until the bolt-up crew added more, Miserindo consulted an OSHA manual and located 29 C.F.R. § 1926.751(a) (the "connection rule"). This regulation required that, during the raising phase, horizontal beams be attached with two bolts (or the equivalent) tightened "wrench tight" with nuts. Miserindo

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recorded his observations in a field report and sent it to Hyman/Power. On March 11, 1993, Jay Meyer, Hyman/Power's General Superintendent, forwarded the report along with a copy of the connection rule to Monk Mann, the General Manager of PDM. Mann responded by letter suggesting that PDM's practice complied with the connection rule because it was installing stronger bolts than the regulations anticipated. Thus, Mann implied, the single bolt PDM used at the connections was equivalent to the two bolts prescribed by the rule. Monk's letter was sent to Turner/Ozanne who replied that it still considered PDM's practice to be in violation of the rule and that "discussions with OSHA confirm [Turner/Ozanne]'s interpretation and [they] stated that they are unaware of any allowed deviation." Turner/Ozanne then requested that PDM use two bolts at all connections. On April 6, 1993, Hyman/Power sent PDM a Contract Non-Conformance Notice because "one bolt connection [was] still being practiced by PDM." Additionally, some of the ironworkers on the construction site complained about the way PDM's raising gang was making its connections, claiming the steel was "unsafe," "shaky" and "loose."

Despite these warnings, PDM apparently never altered its connection practice, nor did it tell its ironworkers about the connection rule or how to comply with it. The contractor simply let its raising gang members decide how to make each connection. Thus some connections had less than two bolts, some had no nuts and others had nuts that were not tightened.

Approximately 1,300 of the 30,000 connections required on the project involved seat angles. A seat angle is an L-shaped piece of rolled steel with holes on the vertical and horizontal legs. The vertical leg is bolted to the steel column. The horizontal leg has two holes which line up with two holes on the bottom flange of a beam, so that once a beam is rested on top of the seat angle, it could be connected with two bolts. PDM, however, typically installed only a single bolt through the beam and horizontal leg of the seat angle and apparently did not tighten the connection during the raising phase.

On November 3, 1993, one of these seat angles failed, dropping the beam which had been placed on it the day before and triggering a collapse of part of the steel structure. Two ironworkers were killed in the crash: Patrick Newsome, a member of PDM's raising gang, and Larry Thormeyer, a bolt-up crew foreman working for MA Steel.

Following the accident, OSHA commissioned civil engineering professors at Purdue University to study the cause of the seat angle failure. Based on simulations of the accident, the professors concluded that two bolts wrench tight had not been used at the connection between the seat angle and the beam it held. At most, they determined, PDM had used only a single bolt with no nut. ²

In August 1996, a Federal Grand Jury handed up a two count indictment of PDM pursuant to 29 U.S.C. § 666(e). Section 666(e) makes any willful violation of OSHA safety standards resulting in the death of "any employee" punishable by fines or imprisonment. Count I charged PDM with knowingly and willfully violating the connection rule (29 C.F.R. § 1926.751(a)). It also charged PDM with willfully violating 29 C.F.R. § 1926.21(b)(2), known as the "training rule," requiring employers to instruct each of their employees in the safety regulations applicable to a given work site. These violations, the count charged, resulted directly in the death of Newsome. Count II charged that the same violations led to the death of Thormeyer.

The original indictment alleged that both Newsome and Thormeyer were employed by PDM. Prior to trial, the district court ruled that under the "multi-employer doctrine" the government only needed to prove that Thormeyer was an employee at the work site; it did not need to prove that he was PDM's employee to establish a violation of Section 666(e). Following this ruling the government issued a superseding information containing the same charges as the indictment,

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but claiming that Thormeyer was employed at the work site, but not by PDM.

In November 1996, PDM filed a motion to dismiss arguing that the safety standards it was alleged to have violated--the connection rule and the training rule--were unconstitutionally vague. The court denied the motion as well as PDM's motion in limine to exclude evidence about connections other than the one that failed. The court then granted the government's motion to exclude some of PDM's evidence regarding the industry custom and practice of steel erection, and granted its motion to restrict the use of evidence of the design of the seat angle involved in the accident. The court also denied PDM's motion to quash the superseding information. Finally, it denied PDM's request at trial to admit the original OSHA citation and complaint which characterized PDM's violations as "serious" instead of "willful."

A jury found PDM guilty on both counts and the court imposed a fine of $1,000,000 and placed the company on probation for 5 years. PDM now appeals, challenging each of the district court's rulings.

Analysis

Multi-Employer Doctrine

Applying the multi-employer doctrine, the district court held that PDM could be liable under 29 U.S.C. § 666(e) for the death of Thormeyer without proof that he was PDM's employee so long as the government could show that he was an employee of the work site exposed to the risk created by the contractor's safety violations. PDM now challenges this decision, claiming that the doctrine is inconsistent with the plain language of Section 666(e) and the purposes of the Act, and that it runs counter to the rule of lenity. ³ However, none of PDM's objections to the district court's use of the doctrine are convincing and, although this circuit has never applied it before, we are persuaded by the reasoning of the courts that have.

The doctrine holds that on multi-employer work sites, an employer who creates a safety hazard can be liable under the Act regardless of whether the employees threatened are its own or those of another employer on the site. Anthony Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1305 (D.C.Cir.1995); Brennan v. OSHRC, 513 F.2d 1032, 1038 (2nd Cir.1975). Courts which have adopted the doctrine cite for statutory support the duties imposed on employers by Section 654(a) of the Act. These duties are two-fold:

Each employer--

(1) Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

(2) Shall comply with Occupational Safety and Health standards promulgated under this chapter.

29 U.S.C. § 654(a). The first duty requires employers to protect their own employees from obvious hazards even when those hazards are not...