Opinion
NO. 2012-CA-000620-MR NO. 2012-CA-000659-MR
05-02-2014
SECRETARY OF LABOR, COMMONWEALTH OF KENTUCKY APPELLANT v. BOWLIN ENERGY, LLC; AND KENTUCKY OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION APPELLEES AND BOWLIN ENERGY, LLC CROSS-APPELLANT v. AND SECRETARY OF LABOR CABINET, COMMONWEALTH OF KENTUCKY; AND KENTUCKY OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION CROSS-APPELLEES
BRIEFS FOR APPELLANT/CROSS- APPELLEE, SECRETARY OF LABOR CABINET, COMMONWEALTH OF KENTUCKY: James R. Grider, Jr. Kentucky Labor Cabinet Frankfort, Kentucky BRIEF FOR APPELLEE/CROSS- APPELLANT, BOWLIN ENERGY, LLC: Robert A. Dimling Cincinnati, Ohio Griffin Terry Sumner Kyle D. Johnson Louisville, Kentucky BRIEFS FOR APPELLEE/CROSS- APPELLEE, KENTUCKY OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION: Frederick G. Huggins Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NOS. 11-CI-00362 AND 11-CI-00381
CROSS-APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NOS. 11-CI-00362 AND 11-CI-00381
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES. ACREE, CHIEF JUDGE: The Secretary of the Kentucky Labor Cabinet appeals, and Bowlin Energy, LLC, cross-appeals, from a March 8, 2012 order of the Franklin Circuit Court affirming the Kentucky Occupational Health and Safety Review Commission's (OSHRC) order addressing the Department of Labor's citations of Bowlin Energy for alleged safety violations. We affirm.
I. Background
This dispute arises from the tragic on-the-job death of a Bowlin Energy employee, Donald Taylor, on November 13, 2006.
Bowlin Energy performs construction and maintenance work for power companies. Its employees were performing contract work for the Meade County Rural Electric Cooperative Corporation in November 2006. They were tasked with reconductoring and relocating a power line, which consists of changing the wire from copper to aluminum.
Taylor died while replacing a utility pole and transferring the pole's three-phase, 7,200-volt primary line to the new unit. Taylor was in the aerial lift bucket of a utility truck when he came into contact with a live wire. He was electrocuted.
Following the accident, the employer notified the Occupational Safety and Health Administration (OSHA) of the fatality. A compliance officer arrived on the scene of the incident and conducted an investigation. The investigation resulted in two citations containing a total of fourteen safety violations, thirteen of which were deemed serious.
A serious violation is one from which "there is a substantial probability that death or serious physical harm could result[.]" Kentucky Revised Statutes (KRS) 338.991(11).
Bowlin Energy appealed the citations. A Hearing Officer conducted an evidentiary hearing, after which he recommended dismissing some of the citations but affirming others.
The Labor Cabinet appealed to OSHRC. OSHRC did not adopt all of the Hearing Officer's recommendations, but affirmed some of the citations and dismissed others.
The Labor Cabinet and Bowlin Energy appealed OSHRC's order to the Franklin Circuit Court, which affirmed the administrative order. This appeal followed.
Additional factual details will be recounted where necessary to our discussion.
II. Standards of review
When appeal is taken from the recommended order of a Hearing Officer, OSHRC is not bound by the recommendations, but may enter its own findings. KRS 338.081; Secretary, Labor Cabinet v. Boston Gear, Inc., a Div. of IMO Industries, Inc., 25 S.W.3d 130, 133 (Ky. 2000).
A reviewing court, however, is bound by OSHRC's findings of fact unless they are not supported by substantial evidence. Department of Labor v. Hayes Drilling, Inc., 354 S.W.3d 131, 134-35 (Ky. App. 2011). When the fact-finder rules in favor of the party with the burden of proof, the findings will be upheld so long as they are reasonable in light of the evidence. McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, 458 (Ky. App. 2003). But "[w]here the fact-finder's decision is to deny relief to the party with the burden of proof or persuasion, the issue on appeal is whether the evidence in that party's favor is so compelling that no reasonable person could have failed to be persuaded by it." Id. Furthermore, "the trier of fact is afforded great latitude in its evaluation of the evidence heard and the credibility of witnesses appearing before it." David Gaines Roofing, LLC v. Kentucky Occupational Safety and Health Review Com'n, 344 S.W.3d 145, 147 (Ky. App. 2011) (quoting Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406, 409-10 (Ky. App.1994).
Questions of law are reviewed de novo. Turner v. Perry County Coal Corp., 242 S.W.3d 658, 659 (Ky. App. 2007). In applying statutory and regulatory authority, "Kentucky courts look to Federal decisions for guidance." Hayes Drilling, Inc., 354 S.W.3d at 135.
III. Discussion
The Labor Cabinet seeks to reverse dismissal of the following citations: Citation 1, Item 1(b), concerning employees' failure to wear dielectric overshoes; Citation 1, Item 10, concerning the failure of the employer to conduct daily inspections of the utility truck; Citation 1, Item 11, concerning the grounding, barricading, or insulating of the utility truck while in operation near an energized power line; and the OSHRC's reduction of the penalty assessed in Citation 2, Item 1 from $3,500 to $100.
Bowlin Energy seeks reversal of affirmation of the following citations: Citation 1, Item 1(a), concerning Taylor's failure to use protective rubber gloves or sleeves at the time of his accident; Citation 1, Item 4, concerning Taylor's failure to wear the appropriate fall-arresting equipment; and Citation 1, Item 8, concerning Taylor's taking of a guy wire within two feet of the energized power lines.
a. Dielectric overshoes
The Department's Occupational Safety and Health compliance officer cited Bowlin Energy for failing to require that employees wear dielectric overshoes, purportedly in violation of 29 CFR 1926.28. OSHRC dismissed the citation on the basis that the Secretary had failed to present any evidence that the wearing of dielectric overshoes was necessary to ensure employee safety.
The Labor Cabinet has identified no specific regulation which requires the wearing of dielectric overshoes in work environments such as that at issue here; however, the employer retains a general duty, pursuant to 29 Code of Federal Regulations (CFR) 1926.28, to ensure protection of its employees even in the absence of a specific regulation. Bristol Steel and Ironworks, Inc. v. Occupational Safety and Health Review Com'n, 601 F.2d 717, 721 (4th Cir. 1979). The pertinent portion of the general regulation provides as follows:
The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.29 CFR 1926.28(a).
To determine whether the employees were adequately equipped absent an item of personal protective equipment, here dielectric overshoes, the fact-finder must determine "what a reasonable man familiar with industry practices would have done." Spancrete Northeast, Inc. v. Occupational Safety and Health Com'n, 905 F.2d 589, 593 (2nd Cir. 1990). "Although industry practices are not controlling [in this determination], evidence of such a practice is pertinent on the issue of whether the employer in a particular case determined appropriateness in a reasonable manner." Id. at 593-94.
OSHRC correctly determined the Labor Cabinet presented no evidence that dielectric overshoes were necessary for the protection of the employees in this situation. Blevins Bowlin, president of Bowlin Energy, testified that he required employees to wear the overshoes only when the customer did. Representatives of Meade County RECC, the customer, testified that the overshoes were not required at the job site in question. There was no evidence that these policies failed to comport with the industry standard or were otherwise insufficient to protect Bowlin Energy employees.
The Labor Cabinet has identified no evidence of record which compels a different result, and so we must affirm.
b. Daily inspection of the utility truck
The employer was also cited for failing to conduct a daily visual inspection of the utility truck in use on the day of Taylor's accident. Regulation imposes the following requirement on employers in the industry of power transmission and distribution:
Visual inspections shall be made of the equipment to determine that it is in good condition each day the equipment is to be used.29 CFR 1926.952(a)(1).
OSHRC found, as with the previous citation, that the Labor Cabinet failed to meet its burden of proof concerning this citation. More specifically, OSHRC declined to enforce the citation in the absence of any evidence explaining what an appropriate visual inspection entailed, whether any Bowlin Energy employee had conducted that type of inspection, and whether any damage to the truck would have been visible upon such an inspection.
The Cabinet contends the compliance officer's identification of certain damage to the truck - a chipped bucket liner and unspecified damage to a door - was sufficient to merit affirmation of the citation. We agree that the Labor Cabinet failed to meet its burden of proof. This evidence of damage does not constitute evidence that the employer failed to conduct daily visual inspections, and, at any rate, the evidence is not so overwhelming that no reasonable person could have failed to be persuaded that a violation occurred.
c. Insulation of the utility truck
Citation 1, Item 11 is the third basis upon which the Labor Cabinet would have us reverse the circuit court and enforce the citation. The safety rule at issue is codified in 29 CFR 1926.952(b)(2):
When working near energized lines or equipment, aerial lift trucks shall be grounded or barricaded and considered as energized equipment, or the aerial lift truck shall be insulated for the work being performed.29 CFR 1926.952(b)(2).
OSHRC found the Labor Cabinet adequately showed that Bowlin Energy's truck had not been grounded or barricaded at the time of the incident, but nevertheless failed to demonstrate a safety violation because it did not prove the truck was not appropriately insulated for the work being performed. Blevins Bowlin testified that the truck had passed its most recent insulation test which made it suitable for work near the 7,200-volt power lines, and the Labor Cabinet presented no evidence that the insulation was inadequate or defective.
In its Appellant's Brief, the Labor Cabinet has identified evidence which it contends merits reversal, but the attempt is not persuasive. The evidence consists of Blevins Bowlin's testimony that the insulation test would not have assessed the insulation capacity of the plastic bucket liner which was in the lift at the time of Taylor's accident. This testimony has no bearing on whether the truck as a unit was insulated so as to prevent electrocution of employees on the ground, the focus of the Cabinet's inquiry before OSHRC. The evidence does not compel reversal, and so we decline to disturb the portion of the circuit court's order addressing this citation.
d. Fine reduced to $100
The last of the Labor Cabinet's bases of appeal concerns OSHRC's reduction of a fine from $3,500 to $100.
Blevins Bowlin admitted that Bowlin Energy failed to properly notify OSHA of Taylor's death within the eight hours required by 803 Kentucky Administrative Regulations 2:180, Section 3(2) and 29 CFR 1904.39. He incorrectly believed he was obligated to report the incident within twenty-four hours rather than eight. The incident was reported the following morning.
The employer was cited for the infraction and initially fined $3,500. OSHRC reduced the penalty because it found it arbitrary and excessive and further concluded that the employer's reporting delay had not prejudiced the OSHA investigation.
The Labor Cabinet expresses its concern that reducing the fine to $100 will encourage employers to delay reporting so as to escape OSHA's scrutiny. But this argument is a mere policy matter and does not prohibit OSHRC from reducing the award at its discretion. KRS 338.081(3) permits the assessment of a penalty of any amount up to $7,000 for a nonserious violation, and the Labor Cabinet has identified no authority which limits OSHRC's discretion to assess an amount it deems appropriate within that limitation. We affirm the penalty for Citation 2 as adjusted by OSHRC.
e. Bowlin Energy's citations
All three citations challenged by the employer concern the use of personal protective equipment by employees in a hazardous work environment. Taylor was fatally injured while failing to wear the protective rubber sleeves and gloves required by 29 CFR 1926.28(a) and the fall-arrest gear required by 29 CFR 1926.453(b)2)(v), and while carrying a conductive item - a guy wire - closer to the power lines than permitted by 29 CFR 1926.950(c)(1).
Bowlin Energy admits Taylor was violating the applicable regulations at the time of the incident. It disputes, however, that it had actual or constructive knowledge of the violations; in the alternative, the employer asserts the defense of employee misconduct.
To establish a violation [of the Kentucky Occupational Health and Safety 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.Carlisle Equipment Co. v. U.S. Secretary of Labor and Occupational Safety, 24 F.3d 790, 792 (6th Cir. 1994). Furthermore:
[a]n employer has constructive knowledge of a violation if the employer fails to use reasonable diligence to discern the presence of the violative condition. Factors relevant in the reasonable diligence inquiry include the duty to inspect the work area and anticipate hazards, the duty to adequately supervise employees, and the duty to implement a proper training program and work rules.David Gaines Roofing, LLC, 344 S.W.3d at 148 (quoting N & N Contractors, Inc. v. Occupational Safety & Health Review Com'n, 255 F.3d 122, 127 (4th Cir.2001)).
OSHRC was persuaded that the employer had actual and constructive knowledge of Taylor's violations and denied the employee misconduct defense because it found no evidence that Bowlin Energy had taken steps to detect violations of OSHA regulations.
Blevins Bowlin testified that he learned from his employees the following sequence of events. Taylor had spent the day setting the utility pole and moving the power lines. The witness concluded that Taylor must have been wearing the gloves during most of the day's work because they would have been necessary to complete the tasks he had performed. Just prior to the incident, Taylor believed he had finished his tasks and descended in the aerial lift.
Much of the evidence presented at the hearing consisted of hearsay; the declarants, none of whom had personally witnessed the incident, largely recounted what Taylor's coworkers had told them regarding the incident. Bowlin Energy contests OSHRC's reliance on this hearsay evidence for purposes of ascertaining the employer's actual knowledge of Taylor's safety violations. The employer has not disputed the use of this evidence for purposes of ascertaining whether the employer had constructive knowledge. Because "relevant and material hearsay may constitute substantial evidence" for purposes of our review, we will analyze the sufficiency of the evidence as we ordinarily would. R.P. Carbone Const. Co. v. Occupational Safety & Health Review Com'n, 166 F.3d 815, 819 (6th Cir. 1998).
Blevins Bowlin also testified that he believed Taylor had removed his gloves and sleeves when he descended. He further stated that upon hire, each employee is issued a pair of rubber gloves and sleeves which allow them to safely handle the power lines such as those Taylor was moving that day. The employer's records reflected that Taylor had been issued a pair of gloves and sleeves in accordance with that policy.
Mr. Bowlin further testified that after Taylor descended in the lift, another employee informed Taylor that he had forgotten to install the guy wire. Taylor asked for the guy wire and additional equipment he needed to install the wire, but the other materials were not immediately available. Taylor's foreman, Earl Henson, had been standing near the aerial lift, but left the area to retrieve a piece of equipment Taylor needed to install the guy wire. Apparently frustrated at the delay, Taylor said, "The hell with it, give me the guy wire." He received the wire, but not the other equipment, and reascended rapidly. He then made contact with a live wire and was electrocuted.
Seth Bendorf, Occupational Safety and Health compliance officer, testified that some rubber gloves and sleeves were later found in the vicinity of the accident, but no one could say with certainty whether they had belonged to Taylor. Leather work gloves were found with Taylor's body. Employees interviewed by Bendorf all stated that no harness or belt had been removed from Taylor's person following the electrocution. Bendorf later found a harness and lanyard, the type of fall-arrest gear Taylor should have been wearing, in the utility truck.
David Poe, an employee of Meade County RECC, conducted an investigation into the incident and submitted a report to the Public Service Commission. The report and Poe's testimony were entered into evidence at the OSHRC hearing. The report generally supports Blevins Bowlin's testimony concerning the sequent events, but differs in at least one respect: it reflects that Foreman Henson told Poe that another employee had left Taylor's immediate vicinity to retrieve additional equipment to secure the guy wire; Foreman Henson remained nearby.
We affirm OSHRC's finding that the employer had constructive knowledge of Taylor's failure to wear the rubber gloves and sleeves and the safety harness, in addition to his taking of the guy wire too near the power lines. It is not apparent precisely how much time Taylor spent near the ground prior to reascending and making contact with the energized wires, but the evidence is that it was more than just a brief period; it was long enough for Taylor to remove a pair of large, heavy-duty rubber gloves and sleeves, to be informed that he had failed to complete the project, to request the equipment necessary to complete the job, for his coworkers to discover that the equipment was not in the truck from which Taylor was working, and to request and receive the guy wire. In this interim, Foreman Henson could have easily observed that Taylor had removed the gloves and sleeves and had received a conductive item. When Taylor came into contact with the live power lines, he brought the conductive guy wire very near them. The testimony supports OSHRC's finding Foreman Henson was in the vicinity of the accident and capable of observing Taylor's actions.
Because we are affirming on the basis of constructive knowledge, we decline to address whether OSHRC's finding of actual knowledge was supported by substantial evidence.
A mere glance at Taylor would have been all the foreman needed to be alerted to the fact that Taylor had removed his sleeves and gloves upon descent, then reascended without them, conductive guy wire in hand. In other words, the violations were in plain view. R.P. Carbone Const. Co., 166 F.3d at 819. Certainly a foreman can be expected to visually monitor his supervisees while on the job site and in the vicinity of an employee engaging in a potentially hazardous activity.
Given the evidence, OSHRC's conclusion that the employer had constructive knowledge of Taylor's taking of the guy wire too near the live power lines and failure to wear the proper protective rubber gloves and sleeves was reasonable. That there was evidence in the record which would have supported the opposite finding is not sufficient to render OSHRC's finding unreasonable. Kentucky Unemployment Ins. Com'n v. Landmark Community Newspapers of Kentucky, Inc., 91 S.W.3d 575, 578 (Ky. 2002). We will not disturb it.
The finding that the employer had constructive knowledge of Taylor's failure to wear the appropriate fall-arrest system is also supported by substantial evidence. As OSHRC noted, Foreman Henson was capable of observing Taylor as he descended in the aerial lift and of noticing that he was not wearing a harness at that time. Furthermore, the evidence supports the inference that Taylor had not worn a harness at any point during the day. OSHA compliance officer Bendorf found no evidence Taylor had worn the harness at all that day and discovered it inside the utility truck rather than on or near Taylor's person. A violation of such duration should certainly be within the perception of the foreman.
We now consider Bowlin Energy's challenge to OSHRC's rejection of its employee misconduct defense. "To establish employee misconduct as an affirmative defense, an employer must carry its burden of showing that due to the existence of a thorough and adequate safety program that is communicated and enforced as written, the conduct of its employee(s) in violating that policy was idiosyncratic and unforeseeable." CMC Elec., Inc. v. Occupational Safety and Health Admin., U.S. Dept. of Labor, 221 F.3d 861, 866 (6th Cir. 2000). The defense consists of the following elements:
the employer must show that (1) it had established work rules designed to prevent the violation, (2) it had adequately communicated the rules to its employees, (3) it had taken steps to discover violations, and (4) it had effectively enforced the rules when violations were detected.Mayflower Vehicle System, Inc. v. Chao, 68 Fed.Appx. 688 (6th Cir. 2003) (citing Jensen Constr. Co., 7 BNA OSHC 1477, 1479 (No. 76-1538, 1979)); Department of Labor v. American Roofing and Metal Co., Inc., 2011 WL 4407520, *5 (Ky. App. 2011).
We have cited these unpublished opinions' adoption of the test articulated in Jensen Construction Co., 7 BNA OSHC 1477, 1479 (No. 76-1538, 1979), in accordance with CR 76.28(4).
--------
Bowlin Energy asserted that Taylor's violations of safety rules were the product of unforeseeable employee misconduct. OSHRC rejected the defense because it concluded Bowlin Energy had failed to meet its burden of proof with respect to the third element, a showing that the employer had taken steps to discover any safety violations. More specifically, OSHRC was not persuaded that occasional on-site visits by the employer's safety officers amounted to a system of discovering employee noncompliance. Furthermore, OSHRC was not persuaded that Bowlin Energy's foreman, the employee tasked with primary responsibility for day-to-day enforcement of the safety rules, had actually engaged in detection of the safety violations on the day of Taylor's death.
This constitutes substantial evidence in support of OSHRC's conclusion. The employer has identified no evidence which compels a different outcome.
IV. Conclusion
We affirm the order of the Franklin Circuit Court which, in turn, affirmed OSHRC's order addressing the citations issued by the OSHA compliance officer.
ALL CONCUR. BRIEFS FOR APPELLANT/CROSS-
APPELLEE, SECRETARY OF
LABOR CABINET,
COMMONWEALTH OF
KENTUCKY:
James R. Grider, Jr.
Kentucky Labor Cabinet
Frankfort, Kentucky
BRIEF FOR APPELLEE/CROSS-
APPELLANT, BOWLIN ENERGY,
LLC:
Robert A. Dimling
Cincinnati, Ohio
Griffin Terry Sumner
Kyle D. Johnson
Louisville, Kentucky
BRIEFS FOR APPELLEE/CROSS-
APPELLEE, KENTUCKY
OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION:
Frederick G. Huggins
Frankfort, Kentucky