23-6151-ag Eustis Cable Enterprises, Ltd. v. Su

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of July, two thousand twenty-four.

PRESENT: JOSEPH F. BIANCO, SARAH A. L. MERRIAM, Circuit Judges, JANE A. RESTANI, Judge. * _____________________________________

EUSTIS CABLE ENTERPRISES, LTD.,

Petitioner,

v. 23-6151-ag

JULIE A. SU, ACTING SECRETARY OF LABOR,

Respondent. _____________________________________

FOR PETITIONER: Pietro J. Lynn, Sean M. Toohey, Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, Vermont.

FOR RESPONDENT: Stephanie MacInnes, Attorney; Louise M. Betts, Counsel for Appellate Litigation; Edmund C.

* Judge Jane A. Restani, of the United States Court of International Trade, sitting by designation. Baird, Associate Solicitor for Occupational Safety and Health; for Seema Nanda, Solicitor of Labor, Washington, District of Columbia.

Petition for review of an order of the Occupational Safety and Health Review Commission

(Dennis L. Phillips, Administrative Law Judge).

UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Eustis Cable Enterprises, Ltd. (“ECE”), a telecommunications contractor, seeks

review of an order of the Occupational Safety and Health Review Commission (the

“Commission”) 1 affirming two citations issued to ECE following the death of an employee while

he was performing aerial line work. ECE seeks review of the ALJ’s findings that it provided

insufficient training to employees in violation of

(c), and insufficient tools

and personal protective equipment (“PPE”) in violation of

(e). More

specifically, ECE argues that the ALJ’s findings were not supported by substantial evidence and

that the ALJ erred in rejecting its defense that the fatality at issue was the result of unpreventable

employee misconduct. We assume the parties’ familiarity with the underlying facts, procedural

history, and issues on appeal, to which we refer only as necessary to explain our decision to deny

ECE’s petition.

This Court will “uphold an order of an administrative agency such as the Commission

unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the

law.’” Chao v. Russell P. Le Frois Builder, Inc.,

(2d Cir. 2002) (quoting 5

1 Because the Commission declined to exercise discretionary review of the decision of the Administrative Law Judge (“ALJ”), the ALJ’s decision became a final order of the Commission on December 16, 2022.

(2)(A)). “On review, factual determinations must be upheld—as generally is true on

appeal from an administrative agency’s adjudicative decision—if supported by substantial

evidence on the record considered as a whole.” N.Y. State Elec. & Gas Corp. v. Sec’y of Lab.,

(2d Cir. 1996) (internal quotation marks and citations omitted). “[S]ubstantial

evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB,

(1951) (quoting Consol. Edison Co. v. NLRB,

(1938)). “We afford particular

deference to agency credibility determinations.” Am. Recycling & Mfg. Co. v. Sec’y of Lab.,

(2d Cir. 2017) (summary order).

ECE employee Anthony Jennings died on January 13, 2020, while attempting to upright a

lasher that had flipped over on the strand between two telecommunications poles during fiber-

optic cable installation work in upstate New York. 2 After ECE’s three-man crew was unable to

2 As the ALJ explained:

The purpose of lashing work is to connect the fiberoptic cable to the support strand. During lashing activities, the role of the lineman is to ascend to the telecommunications space, which they do either via the boom of a bucket truck or by climbing utility poles. Typically, lashing work starts when the lineman attaches a 50-to-70-pound lasher or lasher machine to the support strand, along with a rope and/or mule tape (also referred to as “muletape”, “mule string,” or “mule line”) that hangs from the lasher down to the ground. Lashing work is done when the lasher runs along the strand and wraps the strand and fiberoptic cable together with ‘lashing wire[.]”

Sp. App’x at 6 (citations and footnote omitted). Stuck lashers are a “frequent” occurrence and “part of typical routine” telecommunications work. Sp. App’x at 14. However, it is only in “rare cases” that lashers cannot be pulled back to the pole with mule tape, and the crew must instead use “layup sticks” or ladders. Supp. App’x at 276. “Layup sticks are a special tool made of fiberglass with a hook on the end. They come in six-foot and three-foot sections, which can be connected and used to reach heights.” Sp. App’x at 12 n.21.

3 right the lasher from their position on the ground using “layup sticks” and “mule tape,” Jennings,

the foreman, attempted to traverse the strand—a maneuver referred to in the industry as a “midspan

excursion”—while using a “climbing belt” as a makeshift bosun’s chair. Sp. App’x at 21–22.

Jennings was able to fix the lasher, but as he made his way back to the pole, the climbing belt slid

up to his chest, resulting in his asphyxiation and death.

Federal regulations require that employers “provide training in the various precautions and

safe practices described in this section” unless “the employer can demonstrate that an employee is

already trained in the precautions and safe practices required by this section prior to his

employment.”

(c). Although lasher recovery procedures are not mentioned

in the OSHA regulations governing telecommunications construction work, ECE does not dispute

that the training provision applies to lashing procedures and working at elevated locations.

ECE first contends that it provided on-the-job training as permitted by Section 1910.268(c).

However, substantial evidence supports the ALJ’s determination that no such on-the-job training

occurred. Glenroy Brown, who was the ground hand on Jennings’s crew the day of the accident,

testified at the hearing before the ALJ that another foreman, Henry Cole, had “shown [him] in the

field” how to retrieve a stuck lasher. Sp. App’x at 47. The ALJ found this testimony not credible,

because Cole himself testified that he did not provide any such training to Jennings because “he

pretty much knew, just like I do, what we were doing.” Sp. App’x at 48. Both Cole and Tim

Becker, an ECE supervisor, testified that they had neither given nor received formal training on

retrieving stuck lashers, nor had they told anyone that midspan excursions were prohibited. ECE

did not produce any documentary evidence demonstrating that it had offered such on-the-job

training and did not otherwise verify that on-the-job training had occurred. Compliance and Safety

4 Officer Michael Willibey testified that ECE had no confirmation or certification of training “to

ensure that the employees, first of all, understood the rules and second of all, followed the rules.”

Sp. App’x at 40. On this record, substantial evidence supports the ALJ’s finding that ECE did not

provide the required on-the-job training about how to fix stuck lashers.

ECE further argues that, in any event, it complied with Section 1910.268(c) by relying on

Jennings’s prior experience working as a lineman in both the United States and Jamaica. See

(c) (“[W]here the employer can demonstrate that an employee is already trained

in the precautions and safe practices required by this section prior to his employment, training need

not be provided to that employee in accordance with this section.”). In particular, ECE contends

that Jennings’s fatal use of a toolbelt as a makeshift bosun’s chair to span the line was contrary to

his “long history of working in Jamaica in the telecommunications construction industry around

utility poles.” Reply Br. at 2.

The record evidence does not establish that anyone at ECE verified Jennings’s prior

training or that ECE had procedures to do so. ECE offered no documentation or records

confirming that Jennings had been trained prior to his employment. ECE Vice President Andy

Bauer testified that he did not know how long Jennings worked as a lineman in the United States,

or where, when, and for how long Jennings attended lineman school in Jamaica, and what training

he understood to be included in that program. 3 Although Becker testified that he had observed

Jennings in his prior employment before hiring him at ECE, he also testified that ECE did not have

3 Brown told Officer Willibey that “[g]oing out on the strand” was never taught or trained at ECE as a method for retrieving stuck lashers, and he had only observed a midspan excursion one time in his career while working in Jamaica. Supp. App’x at 276.

5 any procedures to certify prior training or to ensure that employees with prior experience

understood the proper procedures to retrieve a stuck lasher before going out to the field.

Accordingly, the ALJ did not err in finding that ECE did not demonstrate that Jennings was

“already trained in the precautions and safe practices . . . prior to his employment.”

(c).

Substantial evidence also supports the ALJ’s determination that the crew did not have

sufficient tools and PPE at their worksite to safely retrieve a stuck lasher. Section 1910.268(e)

requires that employers must provide “personal protective equipment, protective devices and

special tools needed for the work of employees.” When assessing compliance with a “performance

standard,” we look to “what is reasonable under the circumstances, including the knowledge of

reasonable persons familiar with the industry.” Jacobs Field Servs., N. Am.,

,

, at *5 (No. 17-1402, 2018) (ALJ) (internal quotation marks and

citations omitted).

On the day of the accident, the crew first attempted to use the layup sticks available on

their truck to fix the flipped lasher. But they only had three sticks which, when combined, were

not long enough to reach the lasher. The crew’s truck was also not equipped with a ladder, and

the crew attempted and failed to gain extra height by climbing a tree. The ALJ determined that,

based on Becker’s testimony about malfunctioning lashers and Brown’s testimony about what

occurred on the day of the incident, it would have been feasible for Jennings’s crew to safely reach

the stuck lasher on the day of the incident with the use of a ladder or “the normal complement of

6 four layup sticks,” none of which Jennings’s team had with them at the worksite. 4 Sp. App’x at

57. ECE does not contest this determination. It is also undisputed that layup sticks and ladders

are “special tools” covered by Section 1910.268(e).

ECE argues that these tools were available because the employees could have requested a

ladder or additional layup sticks from its headquarters, located about 25 miles away from the

worksite. Both Officer Willibey and Bauer testified that the crew could have called headquarters

for a ladder to be delivered to the worksite. The ALJ rejected this argument, finding that making

special tools and PPE available at headquarters “on request” does not constitute compliance with

Section 1910.268(e). Sp. App’x at 57 (citing Clarence M. Jones, 1983–84 CCH OSHD ¶ 26516,

, at *3 (No. 77-3676, 1983) (“We therefore reject [the] contention that making

such protection available ‘on request’ constitutes compliance with these standards.”) and United

Geophysical Corp.,

,

, at *7 n.13 (No. 78-6265, 1981)

(“[P]rotective equipment kept at a central location as much as 30 miles from the jobsite . . . cannot

be considered available for use by the employees at the site.”)). We agree. Substantial evidence

supports the ALJ’s determination that “lashers frequently become disabled, entangled, stuck or

otherwise require[e] service at a working altitude, including in the space between two poles.” Sp.

App’x at 14 (internal citation and quotation marks omitted). Under these circumstances, keeping

a normal complement of layup sticks or a ladder on the work truck are “reasonable precautions

against hazards generally known in the industry.” Jacobs Field Servs., N. Am.,

,

at *5.

4 Although the primary mode of fixing a stuck lasher is to use mule tape, the crew was unable to fix the lasher with mule tape on the day of the incident.

7 Finally, the ALJ properly rejected ECE’s affirmative defense that the fatality was the result

of unforeseeable employee misconduct. To be entitled to the affirmative defense, “an employer

must prove that (1) it established work rules to prevent the violation; (2) these rules were

adequately communicated to the employees; (3) it took steps to discover violations; and (4) it

effectively enforced the rules when infractions were discovered.” D.A. Collins Constr. Co. v. Sec’y

of Lab.,

(2d Cir. 1997) (footnote omitted). The employer bears the burden of

establishing the affirmative defense “after the Secretary has made out a prima facie case of a

violation.”

With respect to Section 1910.268(c), the ALJ determined that ECE did not make

the requisite showing that “the person in charge of ensuring the Crew had [the required] training,

failed to do so.” Sp. App’x at 68. The ALJ further found that ECE did not establish the defense

with respect to Section 1910.268(e), because “[t]o the extent ECE provided any instructions on the

proper tools and equipment to use to address the circumstances the Crew encountered on January

13, 2020, it was both too general and left too much discretion to employees to be effective.” Sp.

App’x at 69.

ECE generally argues that it is entitled to the defense as to both violations because Jennings

“failed to follow the ECE training or to properly use the tools that ECE provided.” Pet. Br. at 14.

ECE does not assert that any policies or procedures were in place to prevent foremen like Jennings

from going into the field without adequate training or that it reasonably relied on supervisors and

managers to follow procedures to confirm that Jennings was properly trained. Instead, it reiterates

the contention that its supervisors actually and justifiably relied on Jennings’s prior training and

experience. As discussed above, substantial evidence supports the ALJ’s findings that ECE did

not verify, nor have any procedures to verify, that Jennings was properly trained. See Am. Sterilizer

8 Co., 1995–97 CCH OSHD ¶ 31451,

, at *5–6 (No. 91-2494, 1997). Without

such procedures in place to prevent the failure-to-train violation, this theory of the affirmative

defense fails.

ECE also contends that its rule that climbing belts “be used only for [their] intended

purpose” would have prevented the failure-to-equip violation, and that this rule was communicated

to employees, including Jennings, at their orientation. Reply Br. at 7. ECE does not, however,

allege or establish that it took steps to discover any such improper use of PPE, or enforced the rule

when it was violated. In short, the ALJ properly denied the defense on the grounds that an

employer who does not “implement[] and enforc[e] an effective work rule” to address workplace

hazards “cannot shift to its employees the responsibility for assuring safe working procedures.”

Sp. App’x at 69 (quoting Pride Oil Well Serv.,

,

, at

*8 (No. 87-692, 1992)).

* * *

We have considered the petitioner’s remaining arguments and find them to be without

merit. Accordingly, we DENY the petition for review.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

9