John Carlo, Inc. v. Chao - Opposition

No. 07-606

In the Supreme Court of the United States

JOHN CARLO, INC., PETITIONER

v.

ELAINE L. CHAO, SECRETARY OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

GREGORY F. JACOB
Solicitor of Labor
JOSEPH M. WOODWARD
Associate Solicitor
EDWARD D. SIEGER
Attorney
Department of Labor
Washington, D.C. 20210

QUESTION PRESENTED

Whether the determination by the Occupational Safety and Health Review Commission that petitioner, a corporation engaged in the business of installing sewer and water lines, had committed a willful violation of a regulation promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., is supported by substantial evidence and otherwise in accordance with the law.

In the Supreme Court of the United States

No. 07-606

JOHN CARLO, INC., PETITIONER

v.

ELAINE L. CHAO, SECRETARY OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-5) is not published in the Federal Reporter but is reprinted in 234 Fed. Appx. 902. The Notice of Final Order of the Occupational Safety and Health Review Commission (Pet. App. 44-45) is unreported. The decision and order of the administrative law judge (Pet. App. 6-43) is re ported at 2005 O.S.H. Dec. (CCH) ¶ 32,834.

JURISDICTION

The judgment of the court of appeals was entered on May 14, 2007. A petition for rehearing was denied on August 7, 2007 (Pet. App. 46-47). The petition for a writ of certiorari was filed on November 5, 2007. The juris diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Occupational Safety and Health Act of 1970 (OSH Act or Act), 29 U.S.C. 651 et seq. requires that a covered employer "furnish to each of his employees em ployment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." 29 U.S.C. 654(a)(1). A covered employer must also "comply with occupational safety and health standards" promulgated by the Secretary of Labor (Secretary). 29 U.S.C. 654(a)(2); see 29 U.S.C. 655 (directing Secretary to pro mulgate such standards).

The Secretary enforces these OSH Act statutory and regulatory requirements by conducting inspections and investigations, 29 U.S.C. 657, and issuing citations, 29 U.S.C. 658. In all citations, the Secretary is requi red to "fix a reasonable time for the abatement of the violation." 29 U.S.C. 658(a). The citation may also pro pose various civil penalties depending on the nature of the cited conduct. 29 U.S.C. 666.1 "[A] civil penalty of up to $7,000" is authorized for each "serious violation." 29 U.S.C. 666(b). The Act provides that "a serious viola tion" exists

if there is a substantial probability that death or seri ous physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the pres ence of the violation.

29 U.S.C. 666(k). The OSH Act provides for further en hanced penalties in cases involving a "willful[]" violation: "Any employer who willfully or repeatedly violates" the statute or the Secretary's regulations "may be assessed a civil penalty of not more than $70,000 for each viola tion, but not less than $5,000 for each willful violation." 29 U.S.C. 666(a). A violation is "willful" if it is "commit ted with intentional, knowing or voluntary disregard for the requirements of the Act, or with plain indifference to employee safety." Continental Roof Sys., Inc., 18 O.S.H. Cas. (BNA) 1070, 1071 (1997); accord Lakeland Enters. of Rhinelander, Inc. v. Chao, 402 F.3d 739, 747 (7th Cir. 2005); AJP Constr., Inc. v. Secretary of Labor, 357 F.3d 70, 74 (D.C. Cir. 2004).

An employer who receives a citation "has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty." 29 U.S.C. 659(a). If the employer gives such notice, the Secretary must notify the Occupational Safety and Health Review Commission (Commission), 29 U.S.C. 659(c), an independent agency whose members are appointed by the President with the advice and con sent of the Senate, 29 U.S.C. 661(a) and (b). The matter is then assigned to a Commission-appointed administra tive law judge (ALJ), 29 U.S.C. 661(j), who must "afford an opportunity for a hearing" and "issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty." 29 U.S.C. 659(c). Unless a member of the Commission "direct[s] that such report shall be reviewed by the Commission," the ALJ's order "become[s] the final order of the Com mission" 30 days after it is issued. 29 U.S.C. 666(j); see 29 C.F.R. 2200.91 (describing procedures for petitions for discretionary review of an ALJ's decision). "Any person adversely affected or aggrieved by an order of the Commission" may, in turn, file a petition for review with an appropriate court of appeals. 29 U.S.C. 660(a); see also 29 U.S.C. 660(b) (providing that Secretary may also obtain review or enforcement of final Commission order).

2. Petitioner is a corporation that was hired to in stall a sewer line down the middle of an existing road way. Pet. App. 7. The installation required petitioner's employees to work in a trench that had been dug 14.5 feet down into "Type C" soil. Id. at 7, 13; see 29 C.F.R. Pt. 1926, Subpt. P, App. A (defining Type C soil as soil that is granular, submerged, or otherwise lacking in compressive strength). Under those circumstances, the Secretary's regulations required petitioner to protect employees in the trench from cave-ins by either "shor ing" or "sloping." Pet. App. 2, 13; see 29 C.F.R. 1926.652(a), (b) and (c). Shoring involves use of a struc ture to support the sides of a trench, whereas sloping means excavating at a prescribed angle in order to pre vent cave-ins. 29 C.F.R. 1926.650 (definitions of shoring and sloping).

By October or November of 2003, several months before the incident that gave rise to this proceeding, peti tioner's general superintendent, John Solich, and its project superintendent, Lester Cox, had learned that the path of the excavation would cross under an existing gas line that ran perpendicular to the proposed sewer line. Pet. App. 2, 8, 30, 37. Solich and Cox unsuccess fully sought to have the owner of the gas line relocate it, and they met a number of times with other management officials to discuss the situation. Id. at 2, 30, 37. At the conclusion of those meetings, Solich and Cox decided to defer further consideration of the problem until the work crew encountered the gas line. Id. at 37.

Petitioner's project foreman, James Jacobs, became aware of the gas line approximately three weeks before the accident that gave rise to this case occurred. Pet. App. 17. One week before the accident, foreman Jacobs discussed the situation with superintendent Cox, his immediate supervisor. Id. at 15-16, 17. The work crew had been shoring the 14.5 foot trench by using a 6-foot trench box stacked on top of an 8-foot trench box to sup port the trench's sides. Id. at 2, 13. Jacobs asked Cox "whether he had plans for how [the work crew was] to go under the gas line." Id. at 17. Cox responded that the crew would need to remove the trench boxes when they reached the gas line. Id. at 18. Cox also instructed Jacobs not to dig the trench wider than six feet. Id. at 18.

Two days before the accident, Jacobs and Cox dis cussed the gas line again. Pet. App. 18. Jacobs asked Cox whether Cox was "sure that's the way we need to do this?" Ibid. Cox responded: "Yes, pull the trenchbox." Ibid. Jacobs told Cox that the work crew would not be able to slope the trench to compensate for the absence of the trench boxes so long as they adhered to Cox's pre vious instruction to dig no wider than six feet. Id. at 19. Cox stated, "I understand that," and told Jacobs that petitioner "had bidded this job to be no wider than six foot." Ibid. Cox reiterated his instruction to remove the trenchbox later that same day, and in another conversa tion on the morning of the accident. Id. at 20.

Jacobs knew that complying with Cox's instructions would violate the requirements of the Act. Pet. App. 22. But he did not discuss the issue with anyone else, "[b]e cause my job was to tell [Cox] and [Cox's] job was to go to the higher man. That's why we have a superintendent on the job." Ibid. Consistent with Cox's instructions, Jacobs told his crew not to slope the walls of the trench and to remove the top trench box when they reached the gas line. Id. at 20.

On March 31, 2004, foreman Jacobs removed the top trench box, pulled the lower box under the gas line, and directed two of petitioner's employees to enter the trench. Pet. App. 14. After the employees had been in side the trench for at least 20 minutes, a large clay ball dislodged, fell into the trench, and struck one of the em ployees, who eventually died from his injuries. Id. at 3, 13. After the cave-in, petitioner was able to slope the trench walls and complete the project without moving the gas line. Id. at 3, 9.

3. a. The Secretary cited petitioner for, inter alia, a willful violation of 29 C.F.R. 1926.652(a)(1), which states that "[e]ach employee in an excavation shall be protected from cave-ins by an adequate protective sys tem." Pet. App. 12-13. Petitioner contested that cita tion, and a hearing was held before an ALJ during No vember 2005. Id. at 7.

b. On May 11, 2006, the ALJ issued a written deci sion and order (Pet. App. 6-43) that upheld the Secre tary's citation for a willful violation of Section 1926.652(a)(1) of the regulations and assessed a civil penalty of $50,000. Pet. App. 7.2

With respect to the existence of a violation, the ALJ noted that "the Secretary ha[d] the burden of proving"

(a) the applicability of the cited standard, (b) the em ployer's non-compliance with the standard's terms, (c) employee access to the violative conditions, and (d) the employer's actual or constructive knowledge of the violation (i.e., the employer knew or, with the exercise of reasonable diligence could have known, of the violative conditions.

Pet. App. 11 (quoting Atlantic Battery Co., 16 O.S.H. Cas. (BNA) 2131, 2138 (1994)). As for the first three requirements, the ALJ noted that the parties had

"stipulated that the cited standard, 29 C.F.R. § 1926.652(a)(1) is applicable," Pet. App. 13, "that the trench was not in conformity with that standard," ibid., and that "[a]fter the accident, [petitioner] was able to adequately slope the trench walls without moving the gas lines," id. at 14. As for the fourth requirement, em ployer knowledge, the ALJ determined that petitioner, "through its foreman, James Jacobs, had knowledge of the violative conditions at the worksite on * * * the day of the accident." Ibid.

The ALJ next concluded that the violation was "a serious violation in that there was a substantial proba bility that death or serious physical harm could result from the violative conditions." Pet. App. 14-15. "With out adequate protection by shoring or sloping," the ALJ explained, "employees working in this excavating were exposed to the hazard of cave-in of the walls of the exca vation." Id. at 15.

The ALJ also determined that the violation was will ful. Pet. App. 15-32. Because petitioner "is a corpora tion which acts through its agents," the ALJ stated that it was necessary to determine "the state of mind of its agents acting on its behalf." Id. at 15. After recounting the relevant testimony, id. at 16-27, the ALJ found that both superintendent Cox and foreman Jacobs were "ac tually aware, at the time of the violative act, that the act was unlawful," and that they had "knowingly and delib erately proceeded to expose employees to the hazards of cave-in of the excavation walls without protection of em ployees by shoring or sloping." Id. at 29.

The ALJ determined that this awareness on the part of Cox and Jacobs was properly attributable to peti tioner. Foreman Jacobs "was the competent person on site and directed the work of the other employees," and superintendent Cox "directed and had responsibility for all work done by [petitioner's] employees on the pro ject." Pet. App. 16; see id. at 29. Both Cox and Jacobs had undergone the "competent person training required by 29 C.F.R. Subpart P-Excavations," ibid., which meant that they were "capable of identifying * * * working conditions which are * * * hazardous, or dan gerous to employees" and had "authorization to take prompt corrective measures to eliminate them," ibid. (quoting 29 C.F.R. 1926.650(b)). The ALJ noted that petitioner "is in the business of digging trenches and other excavations," and that the standard violated here "sets forth the basic requirements to protect employees in excavations." Id. at 29-30. "The situation of the gas line crossing the path of the trench was not an unex pected situation," and "[t]op management officials * * * knew about this condition for several months prior to the accident." Id. at 30. The ALJ also conclud ed that petitioner's safety manual showed "a heightened awareness * * * of the hazards resulting from failure to protect employees in trenches by shoring or sloping." Id. at 30-31. Under those circumstances, the ALJ con cluded that petitioner's "actions show intentional disre gard of the requirements of the Act and plain indiffer ence to those requirements and to employee safety." Id. at 31.

The ALJ next rejected petitioner's argument that the violation should be excused because it "was the re sult of unpreventable employee misconduct" (Pet. App. 32) of either foreman Jacobs or superintendent Cox. Id. at 32-41.3 To make out such a defense, the ALJ stated, petitioner would need to establish that: "(1) it has estab lished work rules designed to prevent the violations, (2) it has adequately communicated these rules to its employees, (3) it has taken steps to discover violations, and (4) it has effectively enforced the rules when viola tions have been discovered." Id. at 32 (quoting Jensen Constr. Co., 7 O.S.H. Cas. (BNA) 1477, 1479 (1979)). In addition, because Jacobs and Cox were "supervisory em ployees," the ALJ stated that "additional analysis [was] required" and that petitioner was required to "show that it took all feasible steps to prevent the accident." Id. at 35, 39 (citing Archer-W. Contractors, 15 O.S.H. Cas. (BNA) 1013 (1991) (Archer-Western), petition for review denied, 978 F.2d 744 (D.C. Cir. 1992) (Table)); see Archer-Western, 15 O.S.H. Cas. at 1017 ("[S]ince it is the supervisor's duty to protect the safety of employees under his supervision[,] * * * [a] supervisor's involve ment in the misconduct is strong evidence that the em ployer's safety program was lax.").

Applying those principles, the ALJ concluded that the supervisors' actions did not constitute unpreventable employee misconduct. Foreman Jacobs had "specifically followed the direct orders of Cox," who was both Jacobs's "direct supervisor" and "the only superinten dent and [petitioner's] highest ranking supervisor on this project." Pet. App. 34. Cox, in turn, "supervised all crews in all areas of the project," "met with the foreman * * * and visited the crews daily, dealing with prob lems and compliance with safety and other regulations," and "had full authority to stop work and to hire and fire employees." Ibid. In addition, the ALJ determined that petitioner's safety manual "contained material errors as to [the Secretary's] trenching requirements regarding the appropriate degree of sloping for Type C soil * * * and the minimum height of a trench box above surround ing soil." Id. at 35. By failing to correct "these obvious errors or communicate the correct information to em ployees on the project prior to the accident," the ALJ stated, petitioner had "failed to establish specific work rules designed to prevent this violation." Id. at 35-36. The ALJ similarly found that Cox and Jacobs had not "received adequate safety training by [petitioner]," even though "they were responsible for communicating safety information to [other] employees," and that although "[e]mployees were given copies of [petitioner's] safety manual, * * * no effort was made to assure the em ployees understood its contents." Id. at 36.

The ALJ also found that petitioner's disciplinary system was "ineffective * * * on this project," and that although petitioner had fired Cox and Jacobs after the accident, both had also received high performance evalu ations after the accident, and the separation notices did not cite "'conduct' as the reason for discharge" and stated that petitioner "would rehire both Cox and Jacobs." Id. at 38-39. The ALJ noted that petitioner's management was aware of the gas line problem but col lectively decided to address the situation when it arose, and that petitioner presented no evidence that higher management supervised or questioned superintendent Cox's handling of the situation. Id. at 37, 40-41. Under those circumstances, the ALJ found that petitioner "ha[d] failed to prove its defense that the willful viola tion of 29 C.F.R. § 1926.652(a)(1) was the result of unpreventable employee misconduct." Id. at 41.

c. Petitioner filed a petition for discretionary review with the Commission. Supp. C.A. R.E. tab 8; see 29 C.F.R. 2200.91. In its petition for discretionary review, petitioner stated: "When a supervisory employee has actual or constructive knowledge of the violative condi tion, the knowledge of that employee can be imputed to the employer. However, the employer can rebut the imputed knowledge by showing that the employer 'took reasonable measures to prevent the occurrence of the violation.'" Supp. C.A. R.E. tab 8, at 3 (citation omit ted); see id. at 4 ("the issue before the ALJ was whether [petitioner] took reasonable measures to prevent the occurrence, thereby rebutting the knowledge imputed through foreman Jacobs").

On June 26, 2006, the Commission issued a Notice of Final Order stating that the case had not been selected for review and that the ALJ's order thus constituted the final order of the Commission. Pet. App. 44-45.

4. The court of appeals denied a petition for review and affirmed the Commission's order in an unpublished per curiam opinion. Pet. App. 1-5. After summarizing the facts and the ALJ's decision, id. at 2-5, the court stated that the ALJ's factual findings "are deemed con clusive" so long as they "are supported by substantial evidence" and that a reviewing court must "uphold the Commission's legal determinations unless they are arbi trary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Id. at 5 (quoting J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350, 1352 (11th Cir. 2000)); see 29 U.S.C. 660(a); 5 U.S.C. 706(2)(A). Apply ing those standards, the court of appeals determined "that substantial record evidence supports the ALJ's findings and the decision is in accordance with the law." Pet. App. 5.

ARGUMENT

Petitioner contends (Pet. i) that this Court should grant review to decide whether the Secretary may "es tablish knowledge [of a violation] by imputing to the employer as a matter of law the knowledge of a supervi sor who intentionally violates the Act and the employer's work rules without proving the supervisor's misconduct was foreseeable to the employer." The courts of appeals have reached different conclusions regarding whether the Secretary or the employer bears the burden of prov ing that an OSH Act violation was the result of unfore seeable employee misconduct, as well as whether and under what circumstances the actual or constructive knowledge of a supervisory employee may be charged to the employer itself.4 As the Secretary argued in unsuc cessfully seeking review of the Fourth Circuit's decision in L.R. Willson & Sons, Inc. v. OSHRC, 134 F.3d 1235 (4th Cir.), cert. denied, 525 U.S. 962 (1998), and in op posing review for case-specific reasons in Brock v. L.E. Myers Co., 818 F.2d 1270, 1277 (6th Cir.), cert. denied, 484 U.S. 989 (1987), questions concerning the proper allocation of various burdens of persuasion are funda mental to the Secretary's enforcement of occupational safety and health standards. See Pet. at 15-17, Herman v. L.R. Willson & Sons, Inc., 525 U.S. 962 (1998) (No. 98-188); Br. in Opp. at 7, L.E. Myers Co., High Voltage Div. v. Secretary of Labor., 484 U.S. 989 (1987) (No. 87- 246). Accordingly, this Court's review may be necessary in an appropriate case to clarify the relevant burdens on the Secretary and the employer in situations in which an employer asserts that a particular violation of safety rules was the result of unforeseeable or unpreventable employee misconduct.

This case, however, would not be a suitable vehicle for addressing the existing tensions in lower court au thority. Petitioner forfeited the ability to obtain judicial review of its claim that a supervisor's knowledge of his own misconduct may not be imputed to his employer by expressly espousing a contrary position before the Com mission. Moreover, the court of appeals' per curiam decision is unpublished and non-precedential. In any event, the approach followed by the ALJ in this case is both reasonable and correct, and petitioner would not prevail even under its own proposed rule. Further re view is not warranted.

1. The OSH Act expressly provides that "[n]o objec tion that has not been urged before the Commission shall be considered by the court [of appeals on review of a Commission decision], unless the failure or neglect to urge such objection shall be excused because of extraor dinary circumstances." 29 U.S.C. 660(a); see Keystone Roofing Co. v. OSHRC, 539 F.2d 960, 963-964 (3d Cir. 1976) (holding that an objection is not "urged before the Commission" within the meaning of Section 660(a) un less it is pressed in a petition for discretionary review). Petitioner did not argue in its petition for discretionary review to the Commission that the Act "expressly prohibit[s] knowledge imputation in supervisory miscon duct cases," Pet. 9, or that doing so "impermissibly shifts the burden of proof," Pet. 11. To the contrary, the petition for discretionary review acknowledged that "[w]hen a supervisory employee has actual or construc tive knowledge of the violative condition, the knowledge of that employee can be imputed to the employer," and that it is the employer's task to "rebut" that imputation of knowledge by showing that it took reasonable mea sures to prevent the occurrence of the violation. Supp. C.A. R.E. tab 8, at 3 (emphases added). Petitioner has not attempted to identify an "extraordinary circum stance[]," 29 U.S.C. 660(a), that would excuse its failure to raise its current argument before the Commission, nor did it attempt to do so before the court of appeals. Because the petition for discretionary review did not "convey[] the substance of [petitioner's current conten tion] face up and squarely, in a manner reasonably cal culated to alert the Commission to the crux of the per ceived problem," petitioner may not raise that conten tion as a basis for setting aside the Commission's deci sion. P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d 100, 107 (1st Cir. 1997); see Frank Lill & Son, Inc. v. Secre tary of Labor, 362 F.3d 840, 844 (D.C. Cir. 2004); D.A. Collins Constr. Co. v. Secretary of Labor, 117 F.3d 691, 694-695 (2d Cir. 1997).

2. Further review is also unwarranted because the court of appeals' brief per curiam opinion is unpublished and non-precedential, and it is far from clear that the court of appeals adopted the approach petitioner at tempts to ascribe to it. Contrary to petitioner's asser tions, the court of appeals did not state that "the ALJ properly imputed [the supervisors'] actual knowledge of the violation to [Petitioner]." Pet. 5 (emphasis added and other emphasis deleted); see Pet. 17 (asserting that "[the Eleventh Circuit] imputed the supervisors' knowl edge of their own misconduct to [p]etitioner as a matter of law"). The actual sentence from the court of appeals' opinion is: "The ALJ imputed Jacobs' actual knowledge of the violation to [petitioner]," and that sentence is con tained in the portion of the court of appeals' decision that summarizes the ALJ's decision. Pet. App. 4. The same is true of the court of appeals' statement, quoted in part in the petition for a writ of certiorari (at 5), that: "The ALJ also determined that the violation was willful and held that [petitioner], 'through Cox and Jacobs, was actually aware, at the time of the violative act, that the act was unlawful." Pet. App. 4 (quoting id. at 29).

The only statement clearly denominated as a holding in the court of appeals' brief decision in this case- which resolved all four of the arguments raised by peti tioner in its petition for review, see Pet. C.A. Br. 1-is the following sentence:

After carefully considering the briefs, reviewing the record on appeal, and having had the benefit of oral argument, we find that substantial record evidence supports the ALJ's findings and the decision is in accordance with law.

Pet. App. 5. It is true that the court of appeals did not express disagreement with any of the ALJ's reason ing-including the ALJ's conclusion that it was appro priate to impute superintendent Cox's and foreman Jacobs's knowledge of their own misconduct to peti tioner, which the court of appeals had described earlier in its opinion. But the court of appeals did not expressly endorse all facets of the ALJ's reasoning either, and there were other bases upon which it may have resolved the supervisor-knowledge issue.

Although the court of appeals did not refer to 29 U.S.C. 660(a) in its brief opinion, the government had argued the forfeiture point, discussed above, extensively in its brief. See Gov't C.A. Br. 33-39. It is possible, therefore, that the court of appeals concluded that the ALJ's decision was "in accordance with the law" (Pet. App. 5) with respect to the supervisor-knowledge issue because petitioner had forfeited the entitlement to con tend otherwise. It is also possible that the court of ap peals chose not to resolve the forfeiture issue, because it concluded that any possible error on the supervisor- knowledge issue was harmless. See Gov't C.A. Br. 30, 45-47 (arguing that, on the facts of this case, it did not matter which party bore the burden of proof with re spect to the foreseeability of the misconduct); see also pp. 17-19, infra. But regardless of what the court of appeals did, or did not, decide in this particular case, its unpublished and unelaborated decision will not supply a rule of decision for future cases, and it thus does not commit the Eleventh Circuit to a course that conflicts with the decisions of any other court of appeals.

3. This case would also be an inappropriate vehicle because the ALJ's decision makes clear that resolution of the issue on which petitioner seeks review-that is, whether the Secretary or petitioner bore the burden of proof with respect to whether the violation of safety rules in this case was "foreseeable" (Pet. i)-makes no difference to the outcome of this case. Petitioner ex pressly acknowledges that "[w]hether a violation is fore seeable requires analysis of an employer's safety policy, training, and discipline," and that "[i]f an employer's safety training and supervision are inadequate, the law deems a violation to be foreseeable." Pet. 8 (emphasis added). Here, the ALJ's findings in rejecting peti tioner's unpreventable employee misconduct defense conclusively establish that the supervisory misconduct at issue here was entirely foreseeable. See W.G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604, 609 n.7 (5th Cir. 2006) (stating that "the required considerations for th[e unpreventable misconduct] affirmative defense closely mirror the foreseeability analysis required to determine if a supervisor's knowledge of his own mis conduct, contrary to the employer's policies, can be im puted to the employer"); New York State Elec. & Gas Corp. v. Secretary of Labor, 88 F.3d 98, 106 (2d Cir. 1996) ("This question [of employer knowledge] is, in sub stance, the same as the one presented when the em ployer invokes the unpreventable misconduct defense.").

In this case, the ALJ expressly found that peti tioner's written safety policies contained no less than nine "obvious errors," and that the errors regarding the degree of necessary sloping and the required height for trench boxes meant that petitioner had "failed to estab lish specific work rules designed to prevent this viola tion." Pet. App. 35-36. Petitioner's own safety director admitted that neither foreman Jacobs nor superinten dent Cox had "receive[d] total training as of the accident date," even though "they were responsible for communi cating safety information to [other] employees," and the ALJ also found that although "[e]mployees were given copies of [petitioner's] safety manual, * * * no effort was made to assure the employees understood its con tents." Id. at 36. As for discipline, petitioner presented "[n]o evidence" that its "management on this project issued anything other than verbal warnings to employ ees for safety violations prior to" the day of the accident, id. at 38, and the ALJ found that petitioner's decision to give Cox and Jacobs high performance evaluations after the accident and to recite non-cause-based reasons for their termination was "totally inconsistent with [peti tioner's] claim that it adequately enforced its safety pro gram and rules," id. at 39. Finally, as for supervision, petitioner's top management had been aware of the exis tence of the gas line months before the accident, and had made a considered decision "to deal with the problem when it actually arose," id. at 37, and petitioner pre sented "[n]o evidence" that "anyone in [its] upper man agement supervised or questioned [superintendent] Cox's handling of the situation," id. at 40-41.

Based on those findings, many of which were made based on concessions by petitioner's own witnesses or the absence of any evidence to the contrary, it is clear that the outcome in this proceeding would have been the same even if the ALJ had required the Secretary to demonstrate that the violation of safety requirements that occurred here was foreseeable. Cf. N&N Contrac tors, Inc. v. OSHRC, 255 F.3d 122, 127 (4th Cir. 2001) (stating that because "the Commission opinion indicates that the constructive knowledge inquiry did not turn on burden of proof rules, * * * even if the Commission had impermissibly shifted the burden the error would be harmless").

4. Further review in this particular case is also un warranted because the ALJ's analysis here was both reasonable and correct. The Act itself does not state how the Commission is to determine whether an em ployer has "willfully * * * violate[d]" a safety stan dard, 29 U.S.C. 666(a), and the statute's definition of "serious violation" does not specify how the Commission is to determine whether "the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation," 29 U.S.C. 666(k) (em phasis added). Because petitioner is a corporation-and thus may act only through its agents and be said to "know of" something in the sense that its agents "know of" it-the proper question is which of petitioner's agents are sufficiently identified with petitioner such that their actions and knowledge are properly attribut able to the corporation. And although petitioner asserts (Pet. 12-13) that holding employers responsible for the knowingly wrongful acts of their supervisory employees would frustrate Congress's purpose of "stimulat[ing] employers * * * to institute new and to perfect exist ing programs for providing safe and healthful workplace conditions," 29 U.S.C. 651(b)(1), such a rule would actu ally provide the appropriate incentives to hire supervi sors who will not engage in knowing misconduct in the first place.

Nothing in the statute, the regulations, or common sense suggests that it was unreasonable for the ALJ to hold petitioner responsible for the knowing and deliber ate violation of safety standards that was personally ordered by superintendent Cox, "the only superinten dent and [petitioner's] highest ranking supervisor on this project," Pet. App. 34, and personally overseen by foreman Jacobs, the person who "directed the work" at the worksite and who "was the highest ranking supervi sor at the trench at the time of the accident." Id. at 14- 15. That is particular true in light of the "obvious" er rors in petitioner's safety manual, id. at 35, its failure to provide proper training, id. at 36-37, and the considered decision by petitioner's general superintendent to per mit the site team "to deal with the problem [of the gas line] when it actually arose," id. at 37. Imposing liability in such a case does not amount to "a de facto policy of strict liability in supervisory misconduct cases," Pet. 14, or mean that the unpreventable employee misconduct defense is "illusory," Pet. 16.5 Rather, it appropriately recognizes that the carefully considered and flagrant misconduct by various company officials in the chain of supervision for the project provides particularly "strong evidence that the employer's safety program was lax." Archer-Western, 15 O.S.H. Cas. (BNA) at 1017.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

GREGORY F. JACOB
Solicitor of Labor
JOSEPH M. WOODWARD
Associate Solicitor
EDWARD D. SIEGER
Attorney
Department of Labor

JANUARY 2008

1 The Act authorizes criminal penalties, including up to six months of imprisonment and a fine of not more than $10,000 in situations where an employer's "willful[] violat[ion of] any standard, rule, or order promulgated" by the Secretary "cause[s] death to any employee." 29 U.S.C. 666(e).

2 In the same decision and order, the ALJ vacated a citation alleging that petitioner had violated a different section of the Secretary's reg ulations by failing to stack large concrete pipes in an appropriate manner. Pet. App. 11-12.

3 The ALJ also rejected petitioner's contention that the accident was the result of unpreventable misconduct by Comer Lindley, the deceased employee. Pet. App. 33. That issue is not before this Court. Pet. i.

4 Most of the courts of appeals require the Secretary to prove that the employer knew or could have known of the violation, contrary to the Secretary's position that she bears the burden regarding employer knowledge only where she alleges a willful violation. See, e.g., New York State Elec. & Gas Corp. v. Secretary of Labor, 88 F.3d 98, 107 (2d Cir. 1996) (New York State Elec.). Most courts, however, allow the Sec retary to prove knowledge by imputing the actual or constructive know ledge of a supervisor to the employer, at least when a non-supervisory employee commits the violation. See, e.g., W.G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604, 609 n.7 (5th Cir. 2006) (W.G. Yates); Danis-Shook Joint Venture XXV v. Secretary of Labor, 319 F.3d 805, 812 (6th Cir. 2003) (Danis-Shook); New York State Elec., 88 F.3d at 105, 109-110; Mountain States Tel. & Tel. Co. v. OSHRC, 623 F.2d 155, 158 (10th Cir. 1980) (Mountain States). If the Secretary meets her initial burden, the employer may then present an affirmative defense of un preventable employer conduct. See, e.g., D.A. Collins Constr. Co. v. Secretary of Labor, 117 F.3d 691, 695 (2d Cir. 1997), and cases cited. The Fourth Circuit, however, does not impute a supervisor's knowledge to the employer and instead requires the Secretary to prove that a vio lation was not the result of unpreventable employee misconduct. See, e.g., L.R. Willson & Sons, Inc. v. OSHRC, 134 F.3d 1235, 1240-1241 (4th Cir.), cert. denied, 525 U.S. 962 (1998). And the Third, Fifth, and Tenth Circuits do not impute a supervisor's knowledge of a violation when the supervisor commits the violation, unlike the Sixth Circuit, which allows imputation in those circumstances. Compare W.G. Yates, 459 F.3d at 607-608; Pennsylvania Power & Light Co. v. OSHRC, 737 F.2d 350, 357-358 (3d Cir. 1984); Mountain States, 623 F.2d at 158, with Danis- Shook, 319 F.3d at 812.

5 The Commission has issued a number of decisions finding no liability in situations where the violation was committed by a supervi sory employee. See Aquatek Sys., Inc., 2005 O.S.H. Dec. (CCH) ¶ 32,794, at 52,442 (2006); Westar Energy, Inc., 20 O.S.H. Cas. (BNA) 1736, 1738-1742 (2004) (digest); Field & Assocs. Inc., 19 O.S.H. Cas. (BNA) 1387, 1393-1394 (2001) (digest); Asplundh Tree Expert Co., 7 O.S.H. Cas. (BNA) 2074, 2075, 2080 (1979).