U.S. v. Shear

Decision Date28 May 1992
Docket NumberNo. 91-1678,91-1678
Citation962 F.2d 488
Parties, 15 O.S.H. Cas. (BNA) 1686, 1992 O.S.H.D. (CCH) P 29,715 UNITED STATES of America, Plaintiff-Appellee, v. Bruce SHEAR, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Peter Fleury, Federal Public Defender, Ft. Worth, Tex., for Bruce shear.

Marvin Collins, U.S. Atty., Ft. Worth, Tex., Jennifer E. Levy, Trial Atty., U.S. Dept. of Justice, Washington, D.C., for U.S.

Appeals from the United States District Court for the Northern District of Texas.

Before GARWOOD and DEMOSS Circuit Judges, and SCHWARTZ *, District Judge.

GARWOOD, Circuit Judge:

Following a jury trial, defendant-appellant Bruce Shear (Shear) was convicted of a criminal violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 666(e) (OSHA or the Act), and now brings this appeal. We reverse.

Facts and Proceedings Below

In March 1987, Shear's employer, ABC Utilities Services, Inc. (ABC), was awarded a contract to install a water line for the City of Azle, Texas. ABC is a small, family-owned construction company. Frank Wolfe is the president and owns approximately sixty percent of the stock of the corporation; his mother owns the remaining shares. ABC employed between eighty and one hundred individuals, comprising between three and four work crews. Wolfe, as president, was the final authority in the company. Shear was the superintendent, and as such was the individual on site with the decision-making power to bind ABC. Shear supervised a number of foremen. He was neither an officer, director, nor stockholder of ABC.

On March 23, 1987, an ABC crew, which Shear was supervising, began to dig a ditch and lay a line of pipe that was ultimately to be connected to two other existing water lines. The ditch was dug along the edge of a road where several utility lines had previously been installed. 1 Because the ground had been previously excavated and backfilled during the installation of the utility lines, the ground was unstable and soft. OSHA regulations then in force prohibited an employer from allowing employees to work in a ditch deeper than five feet in unstable soil unless the ditch was sloped, or a trench box 2 or other materials were used to sheet or shore the walls to protect the men from the danger of the trench collapsing. See 29 C.F.R. § 1926.652(b), (k) (1989). In spite of this, the trench walls were not sloped, shored, or braced, and a trench box was not used. As two ABC employees were laying pipe in the trench, one of the trench walls collapsed. Marcos Chairez Luna (Luna), one of the employees, was trapped inside the trench and killed.

On December 13, 1990, ABC and Shear were both charged in a two-count indictment with violating OSHA, 29 U.S.C. § 666(e). In Count One, ABC and Shear were charged with willfully failing to cease all work and excavation until necessary precautions were taken to safeguard employees where evidence of possible cave-ins was apparent, in violation of section 666(e), 29 C.F.R. § 1926.650(i) and 18 U.S.C. § 2. In Count Two, ABC and Shear were charged with willfully failing to shore, sheet, brace, slope, or otherwise support the sides of a trench more than five feet deep, which was located in unstable and soft material, by means of sufficient strength to protect employees working in the trench, in violation of section 666(e), 29 C.F.R. § 1926.652(b) and 18 U.S.C. § 2. On February 4, 1991, Shear moved to dismiss the indictment on the grounds that it failed to allege an assertedly essential element of the offense, namely that Shear was an employer. The district court denied the motion on February 19, 1991.

The case proceeded to trial before a jury, beginning April 29, 1991. After the Government rested, Shear filed a Motion for Judgment of Acquittal and Brief, arguing that he was not an employer and thus could not be liable as an aider and abettor. He reurged the motion at the close of all the evidence. Shear was convicted of Count Two and acquitted of Count One. ABC was convicted of both counts. On June 7, 1991, the district court suspended imposition of the sentence of imprisonment and placed Shear on probation for 3 years, subject to several special conditions, including the completion of 100 hours of community service and the payment of a $5000 fine. Discussion

Shear argues that because his alleged violation of 29 C.F.R. § 1926.652(b) was committed as an employee of ABC, he cannot be guilty either of violating section 666(e) or of aiding and abetting ABC in its violation of section 666(e). Section 666(e) provides that

"[a]ny employer who willfully violates any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both."

OSHA defines employer as "a person engaged in a business affecting commerce who has employees." 29 U.S.C. § 652(5). "Employee" is defined as "an employee of an employer who is employed in a business of his employer which affects commerce." 29 U.S.C. § 652(6).

While the criminal liability of an employee under section 666(e) is an issue of first impression in this Circuit, it has recently been addressed by the Seventh Circuit. See United States v. Doig, 950 F.2d 411 (7th Cir.1991). In Doig, the manager of a tunnel project in which three employees were killed when his employer violated OSHA regulations was charged with aiding and abetting his corporate employer in violating section 666(e). Doig's corporate employer was charged and convicted under section 666(e) for willful violations of OSHA regulations that resulted in the death of the three employees. The district court, however, dismissed the indictment against Doig, and the Seventh Circuit affirmed the dismissal. See id. at 412. The Seventh Circuit held that Congress did not intend to subject employees to aiding and abetting liability under OSHA. Id. We are in general agreement with the Seventh Circuit's reasoning and holding in Doig.

The terms "employer" and "employee" are defined in the statute. The duties of employers and employees are also carefully delineated. See 29 U.S.C. § 654. Section 654(a) requires "[e]ach employer" to "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" and to "comply with occupational safety and health standards promulgated under this chapter." Id. Section 654(b) requires "[e]ach employee" to "comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct." Id. Section 666, entitled "Civil and Criminal Penalties," establishes the civil and criminal penalties for violating OSHA. It distinguishes between employers and broader classes of individuals in imposing liability. For example, subsection (f) imposes liability upon "[a]ny person" who gives advance notice of an inspection, and section (g) imposes liability on "[w]hoever" makes false statements or representations. In contrast, subsections (a)-(e) and (i) penalize "any employer." "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972). This juxtaposition indicates that Congress intended to subject employers, but not employees, to criminal liability under section 666(e). See Doig, 950 F.2d at 414.

In reaching this conclusion, we also rely on Atlantic & Gulf Stevedores v. Occupational, Safety & Health Review Commission, 534 F.2d 541 (3rd Cir.1976). In Atlantic & Gulf Stevedores, the Third Circuit held that OSHA does not confer on the Occupational Safety and Health Review Commission or the Secretary of Labor the power to sanction employees for disregarding safety standards and commission orders. The court noted that individual sections of OSHA, such as the employee duty provision contained in section 654(b), "cannot be read apart from the detailed scheme of enforcement" found in sections 658, 659, and 666 of OSHA and determined that "this enforcement scheme is directed only against employers." The Third Circuit specifically found that section 666 "provides for the assessment of civil monetary penalties only against employers." Id. at 553. In reaching this conclusion, the court held that "this result precisely coincides with the congressional intent." Id. The court relied in part on a Senate report discussing the employee duty section of OSHA:

" 'The committee does not intend the employee-duty provided in section 5(b) [29 U.S.C. § 654(b) ] to diminish in anyway the employer's compliance responsibilities or his responsibilities to assure compliance by his own employees. Final responsibility for compliance with the requirements of this act remains with the employer.' " Id. at 554 (quoting S.REP. No. 91-1282, 91st Cong., 2d Sess. 10-11, reprinted in 1970 U.S.CODE CONG. & ADMIN.NEWS 5177).

The court concluded that "it cannot be seriously contended that Congress intended to make the amenability of employees to coercive process coextensive with employers." Id. 3

In response, the Government argues that supervisory employees of a corporate employer can be held principally liable as employers under section 666(e) and that because Shear was a superintendent for ABC his conviction should be affirmed. See United States v. Doig, 950 F.2d 411, 415 (7th Cir.1991); United States v. Pinkston-Hollar, Inc., 4 O.S.H. Cas. (BNA) 1697, 1699 (D.Kan.1976). Doig and Pinkston Hollar both suggest that corporate officers may be convicted...

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