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U.S. v. MYR GROUP

May 1, 2003

UNITED STATES OF AMERICA,
v.
MYR GROUP INC. AND THE L.E. MYERS COMPANY DEFENDANTS.



The opinion of the court was delivered by: Geraldine Soat Brown, United States Magistrate Judge.

MEMORANDUM OPINION AND ORDER

A four count indictment was returned charging defendants MYR Group Inc. ("MYR") and its wholly-owned subsidiary. The L.E. Myers Company ("L.E. Myers") with violating a section of the Occupational Safety and Health Act (the "Act"), 29 U.S.C. § 666 (e), which provides:

Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both; except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be by a fine of not more than $20,000 or by imprisonment for not more than one year, or by both.
Specifically, the indictment charges that L.E. Myers was engaged in the repair and maintenance of high voltage power transmission lines on towers located in various locations in Illinois, and that Blake Lane and Wade Cumpston, two employees of L.E. Myers, died from injuries sustained by electrocution. Blake Lane died on or about December 28, 1999 while working on a tower in Mt. Prospect, Illinois. Wade Cumpston died on or about March 25, 2000 while working on a tower at Plainfield, Illinois. The indictment charges that L.E. Myers and MYR violated certain regulations promulgated by the Secretary of Labor pursuant to OSHA, causing the deaths of Lane and Cumpston. L.E. Myers is charged with violating various safety standards. MYR is charged with violating two subsections of the regulations relating to training.

MYR has moved to dismiss the two counts of the indictment against it. As discussed herein, notwithstanding the tragic circumstances of Lane's and Cumpston's deaths, the indictment fails to set out any basis for criminal liability on the part of MYR. Therefore, Counts Two and Four of the indictment must be dismissed.

THE INDICTMENT

The government acknowledges that the fact that MYR is the parent of a wholly-owned subsidiary that maybe criminally liable for violations of the Act is not enough to make MYR itself subject to criminal liability. Instead, the government charges MYR with violating two regulations relating to the training of employees. The allegations relating to MYR are set out in ¶ 1(k) of the indictment, which states as follows:

Defendant, MYR GROUP, INC., a Delaware corporation and an employer under the Act, was engaged in electrical repair and maintenance work through its wholly-owned subsidiary, THE L.E. MYERS COMPANY. Defendant, MYR GROUP, INC. was responsible for overseeing the safety program at each of its wholly-owned subsidiaries, including but not limited to THE L.E. MYERS COMPANY. Defendant MYR GROUP, INC. authored and published a Safety Manual and numerous Safety Alerts for the use of employees of THE L.E. MYERS COMPANY. Defendants, MYR GROUP, INC. and THE L.E. MYERS COMPANY were responsible for safety training, safety instruction and safety enforcement for employees of THE L.E. MYERS COMPANY.
(Capitalization in original.)

The indictment alleges that MYR violated the following regulations:

Employees shall be trained in and familiar with the safety-related work practices, safety procedures, and other safety requirements in this section that pertain to their respective job assignments. Employees shall also be trained in and familiar with any other safety practices including applicable emergency procedures . . . that are not specifically addressed by this section but that are related to their work and are necessary for their safety.
29 C.F.R. § 1910.269 (a)(2)(i); and
Qualified employees shall also be trained and competent in: (A) the skills and techniques necessary to distinguish exposed live parts from other parts of electric equipment; (B) the skills and techniques necessary to determine the nominal voltage of exposed live parts; (C) the minimum approach distances specified in this section corresponding to the voltages to which the qualified employee will be exposed; and (D) the proper use of the special precautionary techniques, personal protective equipment, insulating and shielding materials, and insulated tools for working on or near exposed energized parts of electric equipment.
29 C.F.R. § 1910.269 (a)(2)(ii).

DISCUSSION

MYR argues that no matter what its involvement in the training of L.E. Myers employees, it cannot be criminally liable because it had no duty to those employees. The Act and the regulations promulgated by the Occupational Safety and Health Administration ("OSHA"), MYR argues, create obligations of employers to their own employees, except for the limited exceptions discussed below. Although MYR is admittedly an "employer" as defined in the Act (29 U.S.C. § 652 (5)), it was not the employer of Lane and Cumpston.

Section 654(a) of the Act provides:

Each employer (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this chapter.
The government argues that its case against MYR arises under ยง 654(a)(2). However, the government has not cited any precedent directly on point, that is, any case in which an entity that was not the injured employee's employer, that provided training but did not have control of the work site, has been held liable for an OSHA violation, either civilly or criminally. Instead, the government argues that the indictment against MYR is proper under ...

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