TNT Crane & Rigging v. OSHC

Case: 22-60399 Document: 00516825855 Page: 1 Date Filed: 07/19/2023

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

July 19, 2023

No. 22-60399 Lyle W. Cayce

Clerk

TNT Crane & Rigging, Incorporated,

Petitioner,

versus

Occupational Safety and Health Review Commission;

Julie A. Su, Secretary, U.S. Department of Labor,

Respondents.

Petition for Review of Orders of the

Occupational Safety and Health Review Commission

Agency No. 16-1587

Before Barksdale, Southwick, and Higginson, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

A company providing crane services petitioned this court to overturn

final orders of the Occupational Safety and Health Review Commission.

Those orders reversed decisions by an administrative law judge that were

favorable to the company. The principal dispute is whether regulations

applicable to the disassembly of a crane apply to the tragic accident that

occurred here.

We conclude the Commission applied the proper regulations and

DENY the petition for review.

Case: 22-60399 Document: 00516825855 Page: 2 Date Filed: 07/19/2023

No. 22-60399

FACTUAL AND PROCEDURAL BACKGROUND

TNT Crane & Rigging, Inc. is a crane-service provider located in

Houston, Texas. It was cited by the Occupational Safety and Health Review

Commission (“the Commission”) for the serious injury of an employee that

occurred on May 15, 2016. On that day, TNT sent a two-man crew, consist-

ing of Jeff Benson and Mark Ryan, to install antennas on a communications

tower in Georgetown, Texas, using a 275-ton mobile crane. After Benson

and Ryan completed the installation, the next task was to disassemble the

crane and load it onto a semi-truck trailer. TNT dispatched to the worksite

two additional employees, Joseph Larison and Freddie Ray, to assist with the

disassembly. Benson acted as the crew’s supervisor.

To prepare for the crane’s disassembly, Benson created a job safety

analysis. Benson and the crew discussed a plan for “breaking the crane

down” and loading it onto the trailer. Ray and Larison expressed concern

about Benson’s proposal to disassemble the crane near an energized 14,400-

volt power line but agreed to the plan based on Benson and Ryan’s assurances

they had assembled the crane in the same location.

The plan called, first, for Benson to lower the boom to allow Larison

to remove the “block,” the mechanism that allowed the crane’s rigging to be

attached to an item for lifting, from the “becket,” a metal connection device

at the end of the crane’s hoist line. After the block was removed, Larison

would hold the becket with his hands to keep the hoist line taut while Benson

reeled in the hoist line and further lowered the boom to lay it on the bed of a

trailer. Ray would drive the truck and trailer into position to receive the

boom, with Ryan guiding him. Once the boom was on the bed of the trailer,

the crew would continue the process by disconnecting the jib from the boom

by removing metal pins.

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Shortly after discussing the plan, the crew began to execute it. Larison

removed the block from the becket, and Ray and Ryan began moving the

truck and trailer into position. As Benson started lowering the boom and

reeling in the hoist line and Larison held the becket, Larison noticed the hoist

line was getting close to the power line and “gave the signal to swing right,

[and] then started yelling.” Moments later, the hoist line contacted the en-

ergized power line, giving Larison a severe electrical shock. Larison was hos-

pitalized with serious injuries.

TNT reported the accident and employee hospitalization to the Oc-

cupational Safety and Health Administration (“OSHA”), which prompted

an investigation. OSHA conducted an inspection and issued TNT a citation,

alleging two serious violations of the Cranes and Derricks in Construction

Standard under 29 C.F.R. § 1926.1407, with a proposed penalty of $24,942.

Item 1 alleges TNT violated Section 1926.1407(b)(3) by exposing employees

to the hazard of electrical shock by failing to use at least one of the measures

required to prevent encroachment or contact with the power lines while dis-

assembling the crane. Item 2 alleges TNT violated Section 1926.1407(d) by

placing “[p]art of a crane/derrick, load line, or load (including rigging and

lifting accessories), whether partially or fully assembled, . . . closer than the

minimum approach distance under Table A (see 1926.1408) to a power line.”

On September 14, 2018, after a two-day hearing, the administrative

law judge (“ALJ”) issued a decision in favor of TNT, finding the cited regu-

lations did not apply to the work performed. The Secretary of Labor (“the

Secretary”) filed a Petition for Discretionary Review with the Commission.

On March 27, 2020, the Commission reversed and remanded the ALJ’s de-

cision. Sec’y of Lab. v. TNT Crane & Rigging, Inc., No. 16-1587, 2020 WL

1657789 (OSHRC Mar. 27, 2020). On remand, the ALJ again found in favor

of TNT, holding the Secretary failed to show the crane operator’s violative

conduct was foreseeable. On June 2, 2022, after the Secretary filed a Petition

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for Discretionary Review, the Commission again reversed the ALJ’s deci-

sion. Sec’y of Lab. v. TNT Crane & Rigging, Inc., No. 16-1587, 2022 WL

2102910 (OSHRC June 2, 2022).

TNT timely petitioned this court for review of the Commission’s de-

cisions.

DISCUSSION

This court’s review of the Commission’s decisions under the Admin-

istrative Procedure Act is “narrow and highly deferential” to the agency.

Medina Cnty. Env’t Action Ass’n v. Surface Transp. Bd., 602 F.3d 687, 699

(5th Cir. 2010). Under 29 U.S.C. § 660(a), the court “must accept factual

findings of the Commission if they are supported by substantial evidence on

the record considered as a whole,” and “if a reasonable person could have

found what the [Commission] found, even if the appellate court might have

reached a different conclusion.” Angel Bros. Enters. v. Walsh, 18 F.4th 827,

830 (5th Cir. 2021) (quotation marks and citations omitted) (alteration in

original). The Commission’s legal conclusions must be upheld unless they

are “arbitrary, capricious, an abuse of discretion, or otherwise not in accord-

ance with law.” 5 U.S.C. § 706(2)(A); see also Angel Bros., 18 F.4th at 830.

The Secretary establishes a violation of an OSHA standard by demon-

strating “by a preponderance of the evidence: (1) that the cited standard ap-

plies; (2) noncompliance with the cited standard; (3) access or exposure to

the violative conditions; and (4) that the employer had actual or constructive

knowledge of the conditions through the exercise of reasonable due dili-

gence.” Angel Bros., 18 F.4th at 830 (quotation marks and citation omitted).

Here, the Secretary alleges violations of 29 C.F.R. § 1926.1407(b)(3) and (d),

two provisions located in a section of the construction crane standard entitled

“Power line safety (up to 350 kV) — assembly and disassembly.”

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TNT challenges the Commission’s determinations that the Secretary

established the first and fourth elements, i.e., that Section 1926.1407 applied

and that TNT had knowledge of the violative conduct. Specifically, TNT

argues the Commission abused its discretion in determining that the plain

meaning of the term “disassembly” as used in Section 1926.1407 includes

acts preparatory to disassembling a crane. Alternatively, TNT asserts that if

the standards did apply to TNT’s work at the time of the accident, the Com-

mission erred by failing to apply the foreseeability exception to the knowledge

element and by finding TNT did not prove its employee misconduct affirm-

ative defense.

We analyze these arguments in that order.

I. Element 1: the standard’s applicability to the cited condition

In construing a regulation, we “give effect to the natural and plain

meaning of” the regulation’s words. Diamond Roofing Co. v. OSHRC, 528

F.2d 645, 649 (5th Cir. 1976). When the regulation is silent or genuinely am-

biguous, we decide whether the agency’s interpretation is reasonable and en-

titled to deference. Kisor v. Wilkie, 139 S. Ct. 2400, 2415–18 (2019). We

defer to the Secretary’s reasonable interpretations of ambiguous standards.

Martin v. OSHRC (CF&I), 499 U.S. 144, 152, 158 (1991); accord Delek Refin-

ing, Ltd. v. OSHRC, 845 F.3d 170, 175 (5th Cir. 2017). Before determining

whether the standard’s meaning is ambiguous, we must use “all the tradi-

tional tools of construction,” i.e., carefully consider the standard’s “text,

structure, history, and purpose.” Kisor, 139 S. Ct. at 2415 (quotation marks

and citation omitted); see also Delek, 845 F.3d at 175.

The question here is whether Section 1926.1407’s definition of “dis-

assembly” encompasses preliminary activities such as lowering a crane’s

boom and retracting the hoist line for the purpose of disassembly, or, instead,

encompasses only the physical disassembly itself.

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a. Plain meaning of “disassembly”

Section 1926.1407(a) states, “[b]efore assembling or disassembling

equipment, the employer must determine if any part of the equipment, load

line, or load (including rigging and lifting accessories) could get, in the direc-

tion or area of assembly/disassembly, closer than 20 feet to a power line dur-

ing the assembly/disassembly process.” The definition section of the stand-

ard defines “Assembly/Disassembly” as

the assembly and/or disassembly of equipment covered under this

standard. With regard to tower cranes, “erecting and climb-

ing” replaces the term “assembly,” and “dismantling” re-

places the term “disassembly.” Regardless of whether the

crane is initially erected to its full height or is climbed in stages,

the process of increasing the height of the crane is an erection

process.

§ 1926.1401 (emphasis added). The parties agree that tower cranes are not

involved here.

TNT maintains the Commission abused its discretion in concluding

the natural and plain meaning of “disassembly” as used in the standard en-

compasses activities preliminary to disassembly. TNT contends the ALJ cor-

rectly determined these provisions do not apply to the specific activity its

crew was engaged in at the time of the accident — lowering the crane’s boom

and retracting the hoist line — because, at that point, they had not yet begun

to physically disassemble equipment.

We begin our analysis with the above definition of “Assembly/Disas-

sembly” in Section 1926.1401. TNT argues the Commission ignored the re-

maining part of the definition: “assembly and/or disassembly of equipment

covered under this standard.” § 1926.1401 (emphasis added). TNT asserts

that, by inserting “of equipment” into the definition, “disassembly” plainly

refers to the physical disassembly of the crane and does not encompass actions

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taken during a crane’s normal operations. According to TNT, the Commis-

sion’s broader reading of disassembly would leave employers to speculate at

what point normal operation ends and disassembly begins.

We do not agree that the Commission’s interpretation necessarily

leaves regulated employers to speculate. We do conclude, though, that the

definition in the regulation is not particularly helpful here. We examine the

text and structure of the crane standard for any clarity.

TNT argues that surrounding provisions, specifically Sections

1926.1404(h)(4) and 1926.1407(a), support its assertion that “disassembly”

refers to the physical disassembly of the crane itself, because the regulations

distinguish the actions needed to be taken before “disassembly.” 1 Thus,

TNT contends there is a clear dividing line between the actions required “be-

fore assembly/disassembly begins” and “[b]efore assembling or disassem-

bling equipment.” See §§ 1926.1404(h)(4), 1926.1407(a). TNT also main-

tains that the references to the removal of pins in Subsections 1926.1404(f)

and (h) and Section 1926.1405 establish that disassembly is limited to the ac-

tual removal of the crane’s components.

We see these arguments as focusing too much on isolated words and

phrases. The Commission identified several provisions 2 that “read as a

1

29 C.F.R. § 1926.1404(h)(4) states, “[w]hen using an assist crane, the loads that

will be imposed on the assist crane at each phase of assembly/disassembly must be verified

. . . before assembly/disassembly begins.” (emphasis added). Section 1926.1407(a) requires

the employer to determine, “[b]efore assembling or disassembling equipment,” whether

any part of the crane could come within 20 feet of a power line during the

assembly/disassembly process. (emphasis added).

2

For example, the Commission cited to 29 C.F.R. § Section 1926.1407(d), which

expressly applies to a fully assembled crane: “[n]o part of a crane/derrick, load line, or load

. . . whether partially or fully assembled, is allowed closer than the minimum approach

distance under Table A.” TNT Crane, 2020 WL 1657789, at *4 (emphasis and alterations

in original). The Commission also determined that various provisions discuss processes

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whole establish that active removal of a crane’s components is not a prereq-

uisite for the cited provisions to apply.” See TNT Crane, 2020 WL 1657789,

at *4–5. Most of the assembly/disassembly requirements in other sections,

see generally §§ 1926.1404–1407, “are phrased broadly and by their nature

require actions that must be initiated as part of the assembly/disassembly

process before pin or component removal even begins.” TNT Crane, 2020

WL 1657789, at *4 (citing five examples). For instance, the Commission ex-

plained that the three options listed under Section 1926.1407 for addressing

power line safety in the assembly/disassembly process all involve actions that

must occur before any actual dismantling takes place. Id. (citing §

1926.1407(a)(1), (b)(1)). Additionally, other provisions in Section 1926.1407

demonstrate the standard expressly applies to “fully assembled” equipment,

indicating applicability is not limited to when equipment is physically dis-

mantled. 3 Furthermore, other provisions in Section 1926.1407 also concern

actions that occur before equipment is physically dismantled. 4

that must take place “as part of the assembly/disassembly process before pin or component

removal even begins.” Id. (citing § 1926.1404(e), (g), (h)(1), (h)(4), (h)(12)).

3

For example, where the power line in the work area has not been deenergized and

grounded, Section 1926.1407(d) prohibits the employer from conducting any disassembly

work while part of the equipment, load line, or load, “whether partially or fully assembled,”

is within the minimum clearance distance permitted for the power line’s voltage level under

Table A. (emphasis added). Similarly, Section 1926.1407(c) prohibits disassembly work

below an energized power line and expressly applies to “partially or fully assembled”

equipment.

4

For instance, Section 1926.1407(e) requires utility owners or operators to provide

power line voltage information to employers within a certain timeframe to permit the

employer to use Option 3 for complying with 1926.1407(a)(1), and Section 1926.1407(g)

requires the posting of electrocution warnings, both of which occur before equipment is

dismantled. Section 1926.1407(f)’s requirement that employers “assume that all power

lines are energized unless the utility owner/operator confirms that the power line has been

and continues to be deenergized and visibly grounded” contemplates that the employer

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We conclude that the standard’s surrounding text and structure does

not limit disassembly to physically dismantling equipment.

We also look to the preamble to the crane standard’s final rule for

guidance. In one part of the preamble, OSHA identifies the activity at issue

here — lowering a boom to position it for dismantling — as an example of

when the assembly/disassembly power line assessment requirement in Sec-

tion 1926.1407(a) applies:

For example, when disassembling a crane, the disassembly pro-

cess takes place in an area that includes the area under and

around the boom’s path as it is lowered to the ground (in most,

but not all cases, the boom is lowered to the ground for the dis-

assembly process). Under [Section 1926.1407(a)], the em-

ployer must assess the proximity that the boom will be in to the

power line in its path of travel to (and on) the ground.

Cranes and Derricks in Construction; Final Rule, 75 Fed. Reg. 47,906,

47,945–46 (Aug. 9. 2010).

The final rule preamble also explains that the prohibition against as-

sembly/disassembly below power lines in Section 1926.1407(c) applies to a

“fully assembled” crane: “in both assembly and disassembly, maneuvering an

assembled crane out from under the power lines, or maneuvering a crane that

is about to be disassembled under them, itself poses a high risk of [power line]

contact.” Id. at 47,949 (emphases added). Additionally, the preamble to the

proposed rule explains that OSHA added the reference to “disassembly” be-

cause “[t]he employer needs to evaluate power lines with respect to . . . the

direction or area of disassembly when preparing to disassemble the crane.”

will adopt that assumption before any equipment is dismantled and maintain it throughout

the disassembly process.

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Cranes and Derricks in Construction; Proposed Rule, 73 Fed. Reg. 59,714,

59,750 (Oct. 9, 2008) (emphasis added).

The Commission correctly found that these statements support the

broader interpretation of “disassembly” as a process that can begin before

physical dismantling. See TNT Crane, 2020 WL 1657789, at *6. These pro-

visions confirm that, when a boom is lowered to allow it to be dismantled, the

action of lowering the boom is part of the disassembly process to which Sec-

tion 1926.1407 applies. See id. Construing Section 1926.1407 as applicable

to steps of a disassembly process that precede the physical dismantling of

equipment, such as lowering a boom into position for dismantling, comports

with OSHA’s intent for Section 1926.1407 to protect employees from power

lines throughout the entire disassembly phase. See 75 Fed. Reg. at 47,944.

TNT urges us to rely on a different statement in the final rule pream-

ble to support its narrow interpretation of “disassembly”:

Irrespective of whether the crane is initially erected to its full

height, or is “jumped” in stages, the process of increasing the

height of the crane is an assembly/erection process. Sections

1926.1403 through 1924.1406 apply whenever the crane’s

height is modified. To ensure that this intent is reflected in the

standard, OSHA has added a sentence to the definition of “as-

sembly/disassembly” in § 1926.1401 to this effect.

See id. at 47,936. TNT asserts the ALJ was correct in finding that this “lan-

guage focuses on the addition or removal of structural components, i.e., pins,

and provides a strong indication that mere removal of the block and lowering

of the boom is insufficient for application of the cited standards.” TNT con-

tends the Commission improperly ignored this statement, which evinces that

the physical process of changing the crane’s height is part of its assem-

bly/erection process.

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We agree with the Commission’s determination that TNT’s prof-

fered statement in the preamble is inapplicable because it “was in response

to a commenter’s question specific to tower cranes, which is not the type of

crane at issue here.” See TNT Crane, 2020 WL 1657789, at *7. In this state-

ment, OSHA was responding to a comment regarding the applicability of

Sections 1926.1403–1406 to the process of adding sections to a fully assem-

bled tower crane to increase its height (referred to as “jumping” or “climb-

ing”). See 75 Fed. Reg. at 47,936. OSHA therefore included language in the

definition of “Assembly/Disassembly” to clarify that “jumping” is consid-

ered assembly work. See id.

Finally, TNT argues the Commission erroneously dismissed an unre-

viewed ALJ decision that discusses crane disassembly. See Sec’y of Lab. v.

Steel Constructors, Inc., 1980 OSHD (CCH) ¶ 24788, 1980 WL 10389 (No.

78-3839, 1980) (ALJ). In that case, the citation alleged the employer allowed

an employee to disassemble an unsupported boom section of a truck crane.

Id. at *4. The ALJ vacated the citation based in part on his finding that the

disassembly of the boom section had not yet begun because the equipment

necessary for its dismantling had not yet been brought to the worksite and the

boom was not yet resting on the ground. Id. at *4–6.

The Commission correctly determined Steel Constructors is inapplica-

ble because it was issued three decades before the cranes standard was prom-

ulgated, “so it did not involve the term ‘disassembly’ within the context of

that standard or even an analogous standard.” See TNT Crane, 2020 WL

1657789 at *7. Additionally, as the Commission noted, the facts of Steel Con-

structors are distinguishable. Unlike here, where TNT’s crew gathered to

disassemble a crane, set a plan for doing so, and then collectively put the plan

into motion, the employer in Steel Constructors was still acquiring materials

necessary to disassemble the equipment when a rogue employee began

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removing pins from a boom on his own initiative. See Steel Constructors, 1980

WL 10389, at *1–2, *7.

The Commission did not abuse its discretion in concluding that, based

on the crane standard’s text, structure, and history, Subsections

1926.1407(b)(3) and (d) unambiguously apply to all steps in a crane disassem-

bly process, including preliminary steps that occur before any equipment is

actually taken apart. See TNT Crane, 2020 WL 1657789, at *3–5. It therefore

follows that the standard applied when TNT’s crew attempted to lay the

boom on a trailer to allow the boom to be physically dismantled. See id.

TNT argues, though, that the Commission abused its discretion in

concluding that, even if the term “disassembly” is ambiguous, the Secre-

tary’s interpretation must be given deference because it is reasonable in light

of the standard’s purpose and regulatory history. See id. at *5–8. Because

we conclude the term “disassembly” is not ambiguous, we need not reach

this issue.

b. Substantial evidence analysis

TNT avers the Commission’s determination that the citations applied

to its work at the time of the incident is not supported by substantial evidence.

TNT contends the ALJ correctly found that “[t]he facts presented at trial . .

. clearly established that disassembly of the crane was about to begin, but had

not actually started.” According to TNT, disassembly would not begin until

the actual removal of the first section of the jib, which had not yet occurred

when contact was made with the power line. Rather, the accident occurred

during preparatory actions — Benson was lowering the boom and retracting

the hoist line. TNT also relies on the fact that when the accident occurred,

none of the equipment necessary to disassemble the crane, including the

helper crane, was in position. Additionally, TNT asserts the OSHA inspec-

tor lacked credibility and his investigation was conducted improperly, as he

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had no personal knowledge of the crane industry and his inspection merely

consisted of witness interviews.

The Commission determined that, when TNT’s crew lowered the

boom in an attempt to lay it on the trailer for dismantling, the action was part

of the crane disassembly process. Certainly, lowering the boom onto the

trailer was part of the plan for disassembling the boom, and the boom was

lowered to position it for dismantling. Additionally, all four crew members

gave statements to OSHA during the inspection indicating that the disassem-

bly process had begun when the boom was lowered. Therefore, the Commis-

sion’s determination that lowering the boom and retracting the hoist for the

purpose of disassembly qualified as disassembly work under Section

1926.1407 is supported by substantial evidence.

Accordingly, the Commission did not abuse its discretion in applying

the standard’s plain meaning to TNT’s work during the incident — a crew

gathered to discuss the plan for disassembling the crane and executed the first

step of the plan, attempting to lay the boom of the crane on a trailer to posi-

tion the boom for dismantling.

II. Element 4: TNT’s knowledge of the violative conditions

The employer is liable only if it knew, “or ‘with the exercise of rea-

sonable diligence, [should have known] of the presence of the violation.’”

W.G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604, 607 (5th Cir. 2006)

(quoting 29 U.S.C. § 666(k)). Because “[a] corporation can only act through

its agents,” “a corporation is usually liable for acts of its supervisors in the

performance of their assigned duties” and is charged with “the supervisor’s

knowledge . . . of non-complying conduct of a subordinate.” Id. (quotation

marks and citations omitted). The Yates court created an exception to the

general imputation rule, however: “[A] supervisor’s knowledge of his own

malfeasance is not imputable to the employer where the employer’s safety

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policy, training, and discipline are sufficient to make the supervisor’s con-

duct in violation of the policy unforeseeable.” Id. at 608–09 (emphasis in

original).

In Yates, a supervisor’s “own conduct,” and not that of his subordi-

nates, violated an OSHA standard. Id. at 607. We contrasted that situation

— where the supervisor was “himself the malfeasant [and] personally act[ed]

contrary to instructions” — to the “ordinary context” where a subordinate

violates a standard and “the supervisor’s knowledge of [the] employee’s un-

safe conduct is imputable to his ‘master’, the employer.” Id. at 609 n.7. In

the former situation, we reasoned it would unfairly relieve the Secretary of

his burden to prove employer knowledge if a supervisor’s knowledge of his

own misconduct was automatically imputed to the employer. Id. at 607–09.

We confirmed this distinction in Angel Bros., 18 F.4th at 830–32. That

case concerned a situation similar to the one here, where a supervisor had

actual knowledge of a subordinate employee’s working in an unguarded

trench, which violated an OSHA standard. Id. at 829. The court found the

Yates exception was inapplicable because the supervisor’s actions did not

constitute the cited violation; rather, “the safety violation was the presence

of [the subordinate] . . . in the unsafe trench.” Id. at 832. The court reasoned

that any claim “that a supervisor’s knowledge cannot be imputed to the em-

ployer when the supervisor authorizes, or takes some other active role in, a

subordinate’s safety violation” has “no support in Yates, in agency princi-

ples, or in other caselaw.” Id.

The parties dispute whether the Yates foreseeability exception applies

here. TNT maintains the ALJ correctly determined on remand that the ex-

ception applies and that, consequently, the Secretary failed to prove TNT

had knowledge of the violative conditions. Furthermore, TNT argues Angel

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Bros. is distinguishable and Yates is more analogous because, here, Benson

engaged in the violation. We disagree.

The Commission correctly determined the Yates exception does not

apply, because all the TNT crew members were engaged in the violative con-

duct under each citation item, and, accordingly, Benson’s knowledge of his

crew’s misconduct was automatically imputed to TNT. See TNT Crane,

2022 WL 2102910, at *3–4. Contrary to TNT’s assertion that only Benson

committed the violations, substantial evidence supports the Commission’s

finding that all four TNT employees collectively worked to disassemble the

crane without a measure in place to prevent encroachment on the energized

power line and when the hoist line was closer than 10 feet from the power

line. See id. at *3.

In addition, even though the supervisor in Angel Bros. did not engage

in the violation alongside his subordinate, both in Angel Bros. and here, a sub-

ordinate employee engaged in conduct that violated the standard(s), a super-

visor had knowledge of the subordinate’s conduct, and that knowledge is im-

puted to the employer under “[o]rdinary imputation principles.” See Angel

Bros., 18 F.4th at 832. Consequently, the Commission did not abuse its dis-

cretion in finding that the Yates foreseeability exception did not apply here

and that Benson’s knowledge of his subordinates’ conduct violating Subsec-

tions 1926.1407(b)(3) and (3) established TNT’s knowledge of the violations.

III. Affirmative defense of unpreventable employee misconduct

TNT can avoid liability if it shows “that the violation resulted from

unpreventable employee misconduct.” See id. TNT must prove, for each

violation, that it: “1) ha[d] established work rules designed to prevent the

violation, 2) ha[d] adequately communicated these rules to its employees, 3)

ha[d] taken steps to discover violations, and 4) ha[d] effectively enforced the

rules when violations [were] discovered.” See id. at 832 (quoting Yates, 459

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F.3d at 609 n.7). TNT’s burden is high because employers have a “height-

ened duty to ensure the proper conduct of [supervisory] personnel,” and

Benson’s participation in the violative conduct “is strong evidence that im-

plementation of the [safety] policy was lax.” See Floyd S. Pike Elec. Contrac-

tor, Inc. v. OSHRC, 576 F.2d 72, 77 (5th Cir. 1978) (quotation marks and ci-

tation omitted).

First, substantial evidence supports the Commission’s determination

that TNT did not have a work rule designed to prevent violations of Section

1926.1407(b)(3). 5 See TNT Crane, 2022 WL 2102910, at *5. “[A] work rule

is an employer directive that requires or prescribes certain conduct” and, to

be adequate, must “specifically match the violation at issue.” Southern Hens,

Inc. v. OSHRC, 930 F.3d 667, 678 (5th Cir. 2019) (quotation marks and cita-

tion omitted). TNT points to section 13 of its Safety Operating Procedures,

which contains rules addressing “Electrical Hazards and Warnings

(1926.1411).” 6 As the Commission stated, section 13 does not address

5

The Commission found TNT’s work rules addressed the requirements of Section

1926.1407(d) and that TNT adequately communicated these rules to its employees. TNT

Crane, 2022 WL 2102910, at *5–6. The parties do not contest these findings.

6

Section 13 of TNT’s safety policy states:

For lines rated 50kV or below, minimum clearance between the lines and

any part of the crane or load shall be 10 feet. During the pre-job meeting

any power lines that are located in the work area will be identified and

discussed. If it is determined that any part of the equipment, load line or

load could get closer than 20 feet to a power line then at least one of the

following measures must be taken: 1) Ensure the power lines have been de-

energized and visibly grounded, 2) Ensure no part of the equipment, load

line or load gets closer than 20 feet to the power line, or 3) Determine the

line’s voltage and minimum approach distance permitted.

When moving cranes around electrical equipment a spotter must be in

place to assist Operator or have a back up alarm that is audible above the

surrounding noise level.

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Section 1926.1407(b)(3)’s express mandate that an employer implement at

least one of the five listed measures to prevent encroachment on an energized

power line during a disassembly process. TNT Crane, 2022 WL 2102910, at

*5. The only measure section 13 mentions — designating a spotter — is in-

sufficient, as it does not clearly establish “when a spotter is ‘necessary’ or

otherwise required.” See id.

Second, substantial evidence supports the Commission’s determina-

tion that TNT did not adequately monitor employee compliance with its

power line safety rules. See id. at *5–7. The Commission reasoned TNT did

not provide “sufficient evidence” regarding the frequency of its audits to

find them sufficient for monitoring employee compliance with safety rules.

Id. at *7. For instance, while TNT proffered evidence that audits occurred,

TNT management could not identify how often audits occurred. Moreover,

TNT did not provide evidence that it used the audit program to monitor

compliance with its power line safety rules at remote worksites like the

Georgetown worksite. 7 See id.

Finally, substantial evidence supports the Commission’s determina-

tion that TNT did not prove it effectively enforced its power line safety rules

when it discovered violations. See id. at *8. TNT claims it disciplines em-

ployees pursuant to its disciplinary policy. Undermining that assertion,

though, TNT provided no evidence “that it ever previously disciplined an

employee for violating its power line safety rules.” Id. Considering TNT is

If necessary a spotter will be designated to monitor the approach distance

and alert Operator if that distance becomes compromised.

7

The Commission has previously found monitoring insufficient where no evidence

showed that the employer monitored employee compliance with the rules pertaining to the

specific conduct at issue in the citation during site visits. Sec’y of Lab. v. Sw. Bell Tel. Co.,

19 OSHC (BNA) 1097, 2000 WL 1424806, at *3 (No. 98-1748, 2000), aff’d, Sw. Bell Tel.

Co. v. Chao, 277 F.3d 1374 (5th Cir. 2001).

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No. 22-60399

a large employer, the Commission found it unreasonable to assume that no

violations of power line safety rules ever occurred prior to the cited viola-

tions. Id. Indeed, in Angel Bros., we determined that effective enforcement

was not established where a large employer performed many excavations but

had “only documented two instances of disciplining employees for rules vio-

lations,” both of which “came after OSHA inspectors uncovered the viola-

tions.” 18 F.4th at 833. Additionally, as the Commission here identified,

Benson’s participation in the violative conduct is strong evidence that

TNT’s enforcement of power line safety rules was lax. See TNT Crane, 2022

WL 2102910, at *8 (citing cases, e.g., Floyd, 576 F.2d at 77).

We uphold the Commission’s determination that TNT failed to es-

tablish the defense. The petition for review is DENIED.

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