[00:00:01] Speaker 01:
K-1290.

[00:00:16] Speaker 04:
Before we begin, the court would like to announce that at the close of the second argument today, we'd like counsel to stick around so we can come down and introduce ourselves to you and greet you personally.

[00:00:28] Speaker 04:
So we'll do that after the second case.

[00:00:31] Speaker 03:
Thank you, Your Honor.

[00:00:32] Speaker 04:
With that, Mr. Folk.

[00:00:34] Speaker 03:
May it please the court.

[00:00:36] Speaker 03:
My name is Ed Folk.

[00:00:37] Speaker 03:
I'm a partner with the law firm of Fisher and Phillips in Atlanta, Georgia, representing the petitioner in this matter of century communities.

[00:00:43] Speaker 03:
I want to thank the Corps for allowing us the opportunity to come and do a oral argument before you all, and I'd like to reserve two minutes for rebuttal.

[00:00:52] Speaker 03:
As you're aware, this case involves a fatality.

[00:00:55] Speaker 03:
And of course, any fatality is a tragedy.

[00:00:59] Speaker 03:
But that in and of itself does not eliminate the secretary's burden to establish a violation of the cited standard.

[00:01:05] Speaker 03:
In this particular case, 29 CFR 1926-1408A2, which is part of the construction standard, or to follow its own directives and requirements under the multi-employer doctrine.

[00:01:19] Speaker 03:
As you wear it, it's set forth in the breeze there.

[00:01:22] Speaker 04:
You speak of burden.

[00:01:24] Speaker 04:
The burden of our analysis has sort of shifted here because of the posture of this, right?

[00:01:29] Speaker 04:
But what we're looking at, the standard of view that we are using to

[00:01:34] Speaker 04:
to evaluate the Secretary's decision is different than what you just stated, right?

[00:01:39] Speaker 03:
Yes, Your Honor.

[00:01:41] Speaker 04:
So what is our standard of reference?

[00:01:43] Speaker 03:
Well, the ALJ decision cannot be upheld unless if it is arbitrary, capricious or abusive discretion.

[00:01:49] Speaker 04:
And that's a very deferential standard, right?

[00:01:51] Speaker 04:
I mean, right now, we're just looking to see if there's substantial evidence.

[00:01:55] Speaker 03:
Right, substantial evidence with respect to whether the facts can be upheld.

[00:01:57] Speaker 03:
This doesn't need to be compelling evidence.

[00:01:59] Speaker 04:
It's just substantial evidence.

[00:02:00] Speaker 03:
Right.

[00:02:02] Speaker 03:
And also with respect to the ALJS credibility determination is based on a patently unsupported decision.

[00:02:10] Speaker 03:
Anyway, as I said, the standard, the burden that the Secretary has to show in this particular case was, and the judge had to demonstrate that it was, that the standard applied, that the standard was violated.

[00:02:25] Speaker 03:
the employees of the employer were exposed and that the employer knew, i.e.

[00:02:31] Speaker 03:
actual knowledge, or with an exercise of regional diligence, i.e.

[00:02:35] Speaker 03:
constructive knowledge.

[00:02:36] Speaker 04:
Doesn't this case really turn on the credibility determination that the ALJ made about Mr. Gattas?

[00:02:43] Speaker 04:
She just didn't believe him.

[00:02:48] Speaker 04:
She thought the evidence showed that somebody, if not Mr. Gaddis, at least somebody from Century was there that morning.

[00:02:57] Speaker 04:
Saw the crane, saw the danger, and did nothing.

[00:03:01] Speaker 03:
Your Honor, that's correct.

[00:03:02] Speaker 03:
That's what she stated, that she indicated in her decision that she believed that Mr. Gaddis was the, quote, most likely person that they saw.

[00:03:09] Speaker 04:
And if there's substantial evidence supporting that finding, you lose, right?

[00:03:15] Speaker 02:
Well, that would be correct.

[00:03:16] Speaker 02:
But our position is that... Supporting the proposition that someone was there doesn't even have to be Gaddis.

[00:03:24] Speaker 03:
Well, I would agree with that, Your Honor, except I would note there once again, with respect to the other persons, if you want to talk, she mentioned about the other construction managers.

[00:03:36] Speaker 03:
Each one of those constructioners in their testimonies stated that they were not at the, did not see the crane out there, they were not at the lot 51.

[00:03:47] Speaker 03:
that there were other portions of the subdivision working on other things.

[00:03:52] Speaker 03:
And that was never rebutted or never discredited by the judge in her decision.

[00:03:58] Speaker 03:
So to say that, well, in addition to saying, well, it must likely was Gaddis, but if it wasn't, it's somebody else that one of the other people must have wandered by.

[00:04:09] Speaker 03:
But there's no evidence in the record that shows that.

[00:04:12] Speaker 03:
And clearly, the only evidence is in there that the manager said, we weren't there.

[00:04:17] Speaker 02:
I'm sorry.

[00:04:18] Speaker 02:
I thought another employee testified that

[00:04:24] Speaker 02:
he saw someone there.

[00:04:26] Speaker 03:
There were two people that were, there were two statements made by two different people.

[00:04:34] Speaker 03:
Sadwick was the crane operator.

[00:04:36] Speaker 03:
He said he saw someone there off to the distance, didn't know who it was, couldn't recognize who he was, and Sad was the first time he was ever on the project.

[00:04:45] Speaker 04:
But it's more than that.

[00:04:46] Speaker 03:
They had the markings of a... Well, they said on him it was a purple, he said it was a purple shirt.

[00:04:52] Speaker 03:
And really, the judge, if you look at the decision, did not really focus on him.

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It was more on Mr. Mendez with respect to the knowledge.

[00:05:07] Speaker 03:
But once again, on his testimony, he's indicated that he did not really know who it was.

[00:05:14] Speaker 03:
He didn't have any idea who it was.

[00:05:17] Speaker 03:
He said he had a polo shirt on.

[00:05:19] Speaker 03:
But when he was asked on cross-examination,

[00:05:22] Speaker 03:
Do you know that this person was from sensory communities?

[00:05:26] Speaker 03:
He said no.

[00:05:27] Speaker 03:
And so clearly, this clear speculation that this most likely was the person is not the basis for a credibility determination or a determination of that particular fact, specifically when Mr. Gaddis has continually asserted during the investigation, during his deposition, during the hearing that he was not on Lot 51 at that time until after the accident occurred.

[00:05:53] Speaker 01:
So essentially relies on the Peter Miller decision from the ALJ.

[00:06:02] Speaker 01:
And so how does that apply here?

[00:06:06] Speaker 01:
Because that case applied to someone who had no authority to abate the hazard, to an employer who had no authority to abate the hazard.

[00:06:12] Speaker 01:
But it seems like Century Here does have that authority.

[00:06:15] Speaker 01:
And so I'm just wondering how you think that decision applies.

[00:06:18] Speaker 03:
Well, I think here in this particular case, I mean, and you had a number of different cases that were actually cited.

[00:06:29] Speaker 03:
Manuel and Falby and Centimark.

[00:06:33] Speaker 03:
Those were the cases that kind of talked about there, about whether or not there's some connection to this reliance, if it was reasonable to look at that.

[00:06:41] Speaker 03:
And clearly, in these particular cases, if you look at Sasser, really is on point in this case, because during

[00:06:50] Speaker 03:
In that case, the SASR did not have any employees, it was a crane case also, did not have an outside crane operator working on it, did not have any employees there.

[00:07:06] Speaker 03:
as sentry here.

[00:07:08] Speaker 03:
However, on Fabby, on Emanuel, those two cases particularly, and the secretary cites heavily on both, and the judge looks at Fabby, but in those cases, the cited employer actively was working with

[00:07:27] Speaker 03:
The other subcontractor, so actually had was for an extended period of time, and then also had knowledge of the hazard, and actually had knowledge of the type of job that they were doing.

[00:07:43] Speaker 03:
And Fabi was, I believe, they were questioned about construction drawings.

[00:07:50] Speaker 03:
And they knew how to read it.

[00:07:51] Speaker 03:
They had worked with the company that did the drawings, so they were aware of it.

[00:07:55] Speaker 03:
They were corn cement, that's what they did.

[00:07:57] Speaker 03:
And that's where the hazard is.

[00:07:58] Speaker 03:
So there's kind of a distinction in that respect in that from here, we have no evidence that shows that Century had an employee at the accident site at the time of the accident.

[00:08:10] Speaker 03:
I think that's pretty much undisputed.

[00:08:12] Speaker 03:
There's no indication that there was an employee there from Century.

[00:08:16] Speaker 03:
In fact, he did.

[00:08:17] Speaker 03:
The other thing going back to your question, Your Honor, is with respect to gas.

[00:08:25] Speaker 03:
Judge Mason determined it's most likely Gattis.

[00:08:29] Speaker 03:
I can't say for sure, but I think it's most likely Gattis.

[00:08:31] Speaker 03:
But she left one thing out.

[00:08:34] Speaker 03:
And that one thing was that, and she never disputed his testimony,

[00:08:38] Speaker 03:
Mr. Harden, one of the company's finishing manager, stated in his testimony, I was with Gattas at the time of the inspection prior to the accident.

[00:08:49] Speaker 03:
So Gattas was with me at the other end of the subdivision working with me.

[00:08:54] Speaker 03:
We were working on two sites that were doing it.

[00:09:00] Speaker 03:
With respect, I think on constructed noise, I think we talked a little bit about that.

[00:09:03] Speaker 04:
Once you finish, you're into your rebuttal time.

[00:09:04] Speaker 04:
That's fine.

[00:09:05] Speaker 04:
You just wanted to notice.

[00:09:07] Speaker 04:
Okay.

[00:09:09] Speaker 03:
Well, I want to try to just touch base on a couple of things, just on the constructive knowledge.

[00:09:14] Speaker 03:
Gaddis did not know.

[00:09:15] Speaker 03:
I mean, first of all, the judge issues with respect to the constructive knowledge.

[00:09:20] Speaker 03:
She's always looking at Gaddis, and the constructive knowledge discussion is in the footnote.

[00:09:27] Speaker 03:
And clearly, Gaddis did not know that the crate had been ordered.

[00:09:36] Speaker 03:
The trusses had been delivered.

[00:09:37] Speaker 03:
He had asked them to be put far on the far side of the side.

[00:09:40] Speaker 03:
He testified he didn't see anything that would lead him to believe that the crane would be there.

[00:09:44] Speaker 03:
He was there the night before, the day before, saw where they were, felt that it was going to be at least another one or two days before they would be lifting the trusses.

[00:09:52] Speaker 03:
So he understood that there.

[00:09:53] Speaker 03:
And so there was no really, he did not know that they were going to move the trusses either.

[00:09:58] Speaker 03:
The trusses were on the far left-hand side, away from the hazard of the power lines.

[00:10:03] Speaker 03:
With respect to reasonable reliance,

[00:10:05] Speaker 03:
The judge, based on the decision and determination that had the sentry complain to see the crane was set up too close.

[00:10:12] Speaker 03:
Well, once again, with respect to reasonable alliance, you're focusing on the maneuvering of the crane is where the hazard is.

[00:10:18] Speaker 03:
It's not a crane to be anywhere as long as it's being set up properly.

[00:10:22] Speaker 03:
And if you look clearly in the deposition of Mr. Sadwick,

[00:10:26] Speaker 03:
He goes in great detail of what he did to set up the screen so that it would not get exposed to the wires.

[00:10:34] Speaker 03:
Unfortunately, he made a mistake.

[00:10:36] Speaker 04:
Your time is up.

[00:10:37] Speaker 04:
Unless my colleagues have questions, we'll give you a little bit of time back.

[00:10:40] Speaker 03:
Thank you, Your Honor.

[00:10:41] Speaker 04:
Appreciate it.

[00:10:43] Speaker 04:
We'll hear from the Department of Labor now.

[00:10:47] Speaker 04:
Good morning.

[00:10:50] Speaker 04:
Good morning.

[00:10:51] Speaker 00:
Morning.

[00:10:52] Speaker 00:
May it please the court, my name is Jin Chong, and I am representing the Secretary of Labour.

[00:10:57] Speaker 00:
In this case, Century knew of the electrical hazards from the overhead power lines, which ultimately killed one man and severely injured another.

[00:11:05] Speaker 00:
Century, however, failed to take any reasonable actions to prevent this violative condition.

[00:11:12] Speaker 00:
As the ALJ found, Century failed to take reasonable actions as a controlling employer.

[00:11:18] Speaker 00:
There is also substantial evidence to support the ALJ's finding that Century had both actual and constructive knowledge of the violative condition.

[00:11:25] Speaker 00:
This court should therefore affirm the ALJ's decision.

[00:11:30] Speaker 04:
What do you do with your friend's argument about Mr. Gaddis' testimony?

[00:11:34] Speaker 04:
I think it was Mr. Hardin who said that he was with him the entire time.

[00:11:40] Speaker 00:
Your Honor, the Secretary has reviewed the testimony that Sentry points to in its brief, but that testimony was not conclusive of the fact that Mr. Gaddis had no opportunity to... Remind me, because I've forgotten, did the Administrative Law Judge take up that issue that Mr. Harden had claimed

[00:12:01] Speaker 04:
that Mr. Gaddis was with him the whole time and therefore it wasn't possible for him to be on the site.

[00:12:07] Speaker 04:
I just, I don't recall, do you?

[00:12:13] Speaker 00:
Your Honor, I do not recall.

[00:12:16] Speaker 04:
If she did not, is that a problem for the government here?

[00:12:20] Speaker 00:
No, Your Honor, because the ALJ made a credibility determination that Mr. Gaddis was an unreliable witness.

[00:12:29] Speaker 00:
She found his testimony to be untrustworthy for – his testimony to be

[00:12:35] Speaker 00:
self-serving and to be conflicting, and based on what she had heard and seen.

[00:12:41] Speaker 04:
But we're now talking about another witness who corroborates Gavis' story.

[00:12:46] Speaker 04:
Did the administrative law judge analyze that other witness and make a credibility determination, for example?

[00:12:55] Speaker 00:
A credibility determination of Mr. Harden?

[00:12:57] Speaker 04:
Yes.

[00:12:59] Speaker 00:
I believe that she had not in her decision.

[00:13:03] Speaker 04:
Is that a problem?

[00:13:07] Speaker 00:
In this case, no, Your Honor, because the ALJ, because the facts show that more likely than not, it was Mr. Gaddis who employee number one had spoken to before the accident had occurred on the morning of the fatal incident.

[00:13:32] Speaker 01:
How would you distinguish Sasser, which is a case that Century relies on, right?

[00:13:38] Speaker 01:
Because there the commission said that an employer is justified in applying upon the specialist to protect against hazards related to the specialist's expertise, so long as the reliance is reasonable and the employer had no reason to foresee that the work will be performed unsafely.

[00:13:53] Speaker 01:
So why wouldn't that same reasoning apply here where Century didn't operate the crane and hired specialists to do so?

[00:14:00] Speaker 01:
specialists who had been working there without incident for several months.

[00:14:04] Speaker 00:
Your Honor, in Sasser, the crane operator had performed work at that specific work site three to four times without any incident.

[00:14:14] Speaker 00:
In this case, however, it was Mr. Shadwick's first day at the subdivision, and it was the first time this crane company had encountered overhead power lines at the subdivision.

[00:14:25] Speaker 00:
Also, in Sasser, employees had pointed out the location of the power lines.

[00:14:31] Speaker 00:
However, in this case, Mr. Gaddis had failed to notify the subcontractors, including Mr. Shadwick, that there was this hazard from the overhead power lines.

[00:14:42] Speaker 00:
So these are key differences between this case and the Sasser case.

[00:14:53] Speaker 00:
It was also unreasonable for Century to rely on this crane operator because lot 51 was one of only two lots on the subdivision that had overhead power lines running through it.

[00:15:12] Speaker 00:
and Mr. Gaddis, I mean, Mr. Gaddis was the specific supervisor that had been assigned to Lot 51 and had the responsibility of identifying site-specific hazards and for informing subcontractors of these type of hazards.

[00:15:30] Speaker 00:
However, Mr. Gaddis failed to inform Mr. Shadwick of this hazard.

[00:15:38] Speaker 00:
And therefore, the Sasser case does not

[00:15:41] Speaker 00:
apply in this case.

[00:15:48] Speaker 00:
In regard to the issue of OSHA's multi-employer citation policy, the ALJ properly found that Century, as a controlling employer, failed to exercise reasonable care to detect and to prevent violative conditions at its work site.

[00:16:07] Speaker 00:
Under OSHA's multi-employer citation policy, OSHA may cite a controlling employer at its work site for failure to exercise reasonable care.

[00:16:14] Speaker 00:
And here,

[00:16:19] Speaker 00:
The parties have stipulated that Century was a controlling employer because it had supervisory authority over its work site, including the authority to correct safety and health violations or to require others to do so.

[00:16:36] Speaker 00:
The ALJ properly found that Century did not exercise reasonable care because although Mr. Gaddis, the supervisor specifically assigned to Lot 51, knew of the electrical hazards from the overhead power lines, he failed to take any reasonable actions.

[00:16:52] Speaker 00:
He knew that the trusses had been delivered when he had visited Lot 51 the day before the fatal incident, and he had therefore known that a crane would be arriving within a few days to lift the trusses onto the house.

[00:17:07] Speaker 00:
He therefore had known of the hazard and the imminent crane activity that was about to occur.

[00:17:13] Speaker 00:
However, he failed to follow up with the subcontractors to see how they would address the hazard of the overhead power lines.

[00:17:23] Speaker 00:
Therefore, even though Mr. Galvis had known of the hazard, he failed to take any reasonable actions to prevent the violated condition in this case.

[00:17:34] Speaker 00:
In regard to the issue of employer knowledge, Your Honor, the Secretary may meet its prima facie burden by showing either actual or constructive knowledge.

[00:17:45] Speaker 00:
And here there is substantial evidence to show that, substantial evidence to support the ALJ's finding that they had, Century had both.

[00:17:57] Speaker 00:
As Your Honors have discussed earlier, the ALJ

[00:18:03] Speaker 00:
found that there were two instances shown in the record that prove that someone saw a sentry manager on the morning of the fatal incident.

[00:18:13] Speaker 00:
Mr. Shadwick, during his deposition, stated that he had seen a sentry manager pass by Lot 51 the morning of the fatal incident, and employee number one also testified that he had actually spoken to a sentry manager that morning.

[00:18:30] Speaker 00:
that manager had stopped by in his blue truck and had asked whether everything was okay and if they needed anything.

[00:18:38] Speaker 00:
And Mr. Gaddis was a manager that drove a blue truck that day on the morning of the incident.

[00:18:53] Speaker 00:
The record also shows that Mr. Gaddis

[00:18:58] Speaker 00:
had known that the trusses had been delivered, as I mentioned earlier, and had even planned for the trusses to be delivered to one side of the lot in order to avoid the overhead power lines.

[00:19:13] Speaker 00:
However, Mr. Gaddis failed to inform the subcontractors of the hazard and informed to fail the subcontractors of his plan for the safe installation of the trusses.

[00:19:26] Speaker 00:
Here, it shows in the record that Mr. Gaddis had known of the violative condition, that a sentry manager had seen the violative condition.

[00:19:36] Speaker 00:
And therefore, there is substantial evidence to support the ALD's finding.

[00:19:42] Speaker 00:
In regards to constructive knowledge, there is substantial evidence to show that with the exercise of reasonable care, Mr. Gaddis could have known of the violative condition, the alternative.

[00:19:58] Speaker 00:
Mr. Gaddis, as I mentioned, had expected the delivery of the trusses and could have taken the reasonable steps to follow up with the arrival of the crane and the operation that would take place to move the trusses onto the house.

[00:20:22] Speaker 00:
The record shows and there is substantial evidence to support the ALJ's finding that

[00:20:27] Speaker 00:
Century had constructive knowledge of the violative condition.

[00:20:34] Speaker 00:
Your Honor, here, Century knew of the violative condition, however, failed to take any reasonable actions to prevent it.

[00:20:44] Speaker 00:
The Secretary asked that the court affirm the ALJ's decision and hold Century liable for its failure to meet its duty of care.

[00:20:53] Speaker 04:
Thank you.

[00:20:54] Speaker 04:
Thank you very much.

[00:20:55] Speaker 04:
Mr. Volk, we'll give you two minutes for rebuttal, and I'd like to ask you to start with the constructive knowledge argument.

[00:21:04] Speaker 04:
Even if we were to think that the ALJ, that there was not substantial evidence that there was actual knowledge, what do you do with the constructive knowledge argument?

[00:21:15] Speaker 03:
Well, once again, Your Honor, I think with respect to constructive knowledge, basically the judge had knowledge about, he was on the lot the previous day, and it's interesting.

[00:21:30] Speaker 04:
Century was in control of this lot, right?

[00:21:35] Speaker 03:
Yes, Your Honor.

[00:21:36] Speaker 04:
They knew that the trust was going to be lifted.

[00:21:40] Speaker 04:
They knew there was a power line overhead.

[00:21:42] Speaker 04:
They knew that there was going to be a crane involved.

[00:21:44] Speaker 04:
And there's no evidence that they

[00:21:48] Speaker 04:
engaged in any training or discussions about the safety factors.

[00:21:52] Speaker 04:
So why shouldn't they be charged with constructive knowledge?

[00:21:55] Speaker 03:
Well, once again, it's assuming that Mr. Gass had the constructive knowledge because he, in fact, was on the site the day before.

[00:22:00] Speaker 03:
His information was, I looked at the site, they're not going to be needing a crane for a while because it's going to take two or at least more than one day before the trust is going to be raised.

[00:22:11] Speaker 03:
He made that determination as the construction manager based on his knowledge of it.

[00:22:15] Speaker 03:
the process that they were doing.

[00:22:18] Speaker 03:
He did not know that the crane had been ordered.

[00:22:20] Speaker 03:
He insisted that he had set up that the trusses that were delivered were on the far left hand side of the house where the power lines were on the other side of the property.

[00:22:32] Speaker 03:
And that's enough?

[00:22:33] Speaker 04:
That's all you need to do is to see that the trusses are over here and the power lines there?

[00:22:37] Speaker 04:
You don't need to engage in any sort of proactive discussion about... Well, once again, he would not...

[00:22:46] Speaker 03:
I think it kind of dives into with respect to reasonable reliance on the crane operator, who is knowledgeable about that.

[00:22:54] Speaker 03:
And I think it's clear in the deposition of Mr. Sadwick that he knew exactly where those power lines were.

[00:23:00] Speaker 03:
He knew where he had to set the crane up.

[00:23:02] Speaker 03:
He purposely set that crane up.

[00:23:04] Speaker 03:
And it was Mr. Gaddis's understanding that the list would be all on the left-hand side, completely away from there.

[00:23:10] Speaker 03:
With respect to just one point on reasonable reliance, the Secretary noted the fact that, well, Mr. Gaddis didn't tell Mr. Sadwick.

[00:23:18] Speaker 03:
Mr. Sadwick knew where those lines were.

[00:23:20] Speaker 03:
He stated that clearly.

[00:23:21] Speaker 03:
He set up that crane on purpose, had a purpose there.

[00:23:25] Speaker 03:
Then I just want to touch really shortly on reasonable care.

[00:23:28] Speaker 04:
I've taken most of your time for rebuttal, but I'll give you 30 more seconds.

[00:23:31] Speaker 03:
All right, with respect to reasonable care, this is an important issue because what you have on the multi-employer doctrine, if you're able to establish the, that you're a controlling, the Secretary of State is a controlling employee, you still have to, and the judge, this is where the judge bypasses it and says, well you don't have to look at the exercise of reasonable care section, the two parts there in the compliance directive.

[00:23:55] Speaker 03:
But you cannot say, just because you have actual notes, that does not relieve the burden of the secretary to prove those two points, because, and I think the debris showed that they were, in fact, we did show reasonable care exercised by a century, because if you meet those, then

[00:24:14] Speaker 03:
The multi-employer doctrine does not apply.

[00:24:16] Speaker 03:
And that means, as a result, that only direct employees of the employer that are exposed can be cited in the standards.

[00:24:26] Speaker 03:
So that's why this is so important.

[00:24:28] Speaker 03:
Thank you very much.