Author: Costas Cyprus

We are constantly reminded of the danger to workers during roadway maintenance and repair operations, and as we enter the summer months, these activities, and risks, only increase. Most recently, on May 9, Governor Kathy Hochul issued a press release regarding certain tragic circumstances as set forth below:

Earlier today, a Thruway Authority maintenance worker lost his life while setting up a work zone on the I-90 in Henrietta. Another was injured in the same incident and remains in serious condition. We are heartbroken over this senseless death, praying for the recovery of the injured worker and grateful to first responders who sprang into action to support their fellow public servants. This incident is a tragic reminder: responsible driving is a life-saving skill, and all New Yorkers should remain alert, slow down and move over when approaching a work zone or stopped vehicle.

The Governor’s statement reaffirms the need for the public at large to drive responsibly, including at slower speeds in work zones. However, construction companies must also continue to take all necessary steps to protect their workers as work zone safety is a mission critical task.

The recent decision in Secretary of Labor v. Williams Bros. Constr. Co. arising from roadway operations in Texas is illustrative of the operations that construction companies must undertake to ensure their workers’ safety. William Brothers Construction Co. Inc., (“WB”) is a large highway construction company with approximately 2000 employees and has 95% of its contracts with the Texas Department of Transportation (“DOT”). On October 29, 2021, WB was preparing to open new traffic lanes involving intersections of certain interstate highways in Houston. WB needed to close off approximately two to three mile stretch of Interstate I-69 so that its crews could remove several temporary concrete barriers which had been previously placed to block off public traffic during construction operations. After the barriers were removed, a subcontractor would remove existing road stripes and “re-stripe” the lanes to guide traffic. WB had begun closing the portion of the highway, at approximately 9 pm, and had largely completed the task by around 1030 pm. Once that portion was closed, the concrete barriers were removed so that the re-striping operations could commence. On the same portion of the highway, near the gore point (that area of space that is between the through travel lanes and the off-ramp, which is typically triangular in shape) of I-610 North and South, a WB employee was cleaning up garbage and debris when at some point after mid-night, on October 30, 2021, a vehicle entered the enclosure and struck three workers, two employed by the sub-contractor and one employed by WB who sustained hip and rib fractures. OSHA was notified of the incident and investigated a few days later, which consisted of interviews since the work-site that had been created by the enclosure no longer existed. Following the investigation and multiple interviews, OSHA issued a general a Citation for violation of the general duty clause which cites which requires that employer furnish a workplace which is free from recognized hazards which may cause or are likely to cause death or serious harm. Here the contemplated hazard was struck-by hazards. OSHA’s citation also provided that feasible methods of abatement existed which were among other methods, the certain means in accordance with the Traffic Plan and Traffic Control Plan developed by the Texas DOT which were (a) Position two shadow vehicles with a Truck Mounted Attenuator (TMA) and high intensity rotating, flashing, oscillating, or strobing lights 30 feet to 100 feet in advance of crew exposure; (b) develop a system to ensure a shadow vehicle cannot be moved out of the work zone area; and (c) when the work zone is moving, operation the shadow vehicle so that it is positioned 30 feet to 100 feet in advance of the crew’s work area. As proceeding commenced and based on the submitted evidence, the Administrative Law Judge (“ALJ”), agreed with WBT that under these particular circumstances, this was not a “moving” work zone as all activities were taking place within an enclosure, behind barrels so that proposed abatement method (c) was in applicable.

Here, WB undertook multiple measures to address struck by hazards from active traffic at worksites. These measures included all workers wearing protective vests, flashing arrow boards, multiple types of warning signs, orange barrels for tapered lane closures , periodic placement of off-duty police officers, with flashing red and blue lights, including two officers in the vicinity of where the incident occurred. Moreover, WB used at least one TMA near the incident area. The TMA is a cushion-like equipment designed to absorb energy if struck by a vehicle to prevent serious injury to all parties. The TMA is attached a “shadow vehicle” typically a flatbed truck with a flashing arrow mounted on its top, which combined is called a “crash truck”. The crash truck provides additional protection to workers from stray vehicles. WB also required some training for its employees on struck-by hazards on active roadways and at least two of WB’s supervisors on the project as well as a supervisor’s helper, were trained offsite on traffic control by a course provided by the “Texas A&M Engineering Extension Service” that pertains to the use of temporary traffic controls for temporary construction site and the application of Texas DOT’s Standard Sheets. These sheets are issued by Texas’s DOT to modify and clarify the use of traffic control divisions in various scenarios as generally described in Texas’ Manual of Uniform Traffic Control Devices. WB’s supervisors also trained all employees on traffic control, including a “work-zone class and orientation”, all employees viewed training videos by the Texas DOT regarding work zone training and receiving copies of the WB’s Safety Manual.

The ALJ found that the Secretary (of Labor) failed to meet their burden to show the methods that WB did employ were inadequate, and thus the Citation was dismissed. The ALJ found that the Secretary had failed to establish why two shadow vehicles with TMAs would have been necessary instead of one under these circumstances, nor that the truck’s placement approximately 400 feet from the incident site was improper since it would have interfered with on-going re-striping operations at that time. Notwithstanding the dismissal, the ALJ still commented that WB lacked adequate documentation regarding monitoring compliance of its work rules and disciplining its employees for violations.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445

In this era of labor shortages and the constant need to secure adequate staffing, construction companies have to balance the practical needs of their business with the needs imposed by laws and regulations especially as it relates to the safety of their employees. However, if employees violate certain safety rules, they should be properly disciplined with such actions being clearly documented. If employees continue repeating such violations, termination is warranted. The recent decision in Secretary of Labor v. American Civil Constructors, LLC d/b/a American Civil Constructors Mountain West clearly illustrates this point that if a company’s existing disciplinary policy is not followed then that company can be deemed liable, at least in the context of an OSHA citation even with an extensive safety policy.

This matter arose from an August 23, 2021 work-place accident where an excavator bucket detached from the excavator striking an employee of American Civil Constructors, LLC (“ACC”) during the installation of freshwater piping. ACC had been retained to install new roadways and underground utilities. Sean Fabela was the ACC’s superintendent and supervised all of ACC’s crews. George Trehal was the foreman of the crew which included a mainline hoe operator, a head pipelayer and two laborers. On the date of the accident, Foreman Trehal directed the hoe operator and head pipelayer to use the excavator to widen and deepen a trench prior to the installation of a water pipe section to a fire hydrant. The head pipelayer entered the trench and asked for a pipe plug while Foreman Trehal had walked about 50 to 100 feet and on the other side of the excavator to perform another task. At that time, the bucket had not yet been connected to the excavator, but Foreman Trehal understood that the bucket would be needed to conduct the excavation operations for that day. Excavator operators change buckets and attachments frequently during their daily operations. A bucket, weighing about 2500 lbs. and was 24 inches wide, was connected to the excavator and was used to deliver the pipe plug inside the trench. The pipelayer approached the bucket to retrieve the pipe plug when the bucket suddenly detached striking the pipelayer in the shoulder and torso. Tragically, the worker succumbed to his injuries. Following an investigation by the police, OSHA was contacted and conducted an investigation, which included taking photographs, interviewing witnesses, etc.

Ultimately, OSHA issued a Citation of Occupational Safety and Health Act for a violation of the general duty clause, which requires that employer furnish a workplace which is free from recognized hazards which may cause or are likely to cause death or serious harm. Specifically, here, OSHA alleged that ACC’s employees were exposed to a crushing hazard from the unexpected release of the bucket from the coupler.

ACC contested the Citation and retained an expert engineer to determine whether the excavator and coupler were operating properly at time of the accident. The process and pieces of equipment to install the bucket to the excavator were discussed in great detail including the use of a hydraulic coupler, as well as the utilization of front and back pins. The excavator operator not only conducts a visual verification including whether observing whether the bucket (improperly) swings once installed but also performs a “ground test” typically taking 10 to 15 seconds curling the bucket and hitting it on the ground, which would confirm whether the front and back pins have locked, and the bucket is properly secured. ACC’s expert subsequently tested the excavator and coupler and concluded that they were operating properly at the time of the accident. If the operator had properly ensured the coupler was attached to both pins of the bucket, as verified by the ground test, the bucket would not have detached, unexpectedly. OSHA did not test the equipment.

ACC’s Safety Program was discussed during the hearing before the Administrative Law Judge (the “ALJ”). ACC’s written Safety Management Program required its employees to under various type of training, its site supervisors to conduct safety meetings and foremen to conduct weekly “toolbox talks”. Daily job safety analyses (JSAs) were completed by the site supervisors to identify specific work hazards for the day’s planned activities. A site-specific safety plan was also prepared to re-emphasize relevant portions of ACC’s safety program. ACC further had various work rules communicated to its employees such as staying out of the “line of fire” by prohibiting them from entering swing zones of heavy machinery. If tasks required an employee to be within the swing zone, ACC required employees to make eye contact with the operator and maintain it while the employee was within the zone to ensure the operator’s awareness that the employee was in the swing zone. ACC also had a work rule prohibiting standing under suspended loads. Although ACC’s management understood this rule to include excavator buckets the ALJ found that the record was not clear that employees understood this to also include excavator buckets. ACC further had a work rule requiring excavator operators to conduct the previously referenced “ground test” to ensure that any attachment was properly connected and locked. Moreover, ACC’s safety program included routine audits and job-site inspections conducted by ACC’s Safety Director. The Safety Director also advised employees on safety hazards, conducted employee trainings and attended toolbox talks. Formal inspections were also documented and on this particular project, the Safety Director conducted several safety inspections and imposed corrective actions, if needed. Site Superintendent Fabela inspected the job site daily for safety issues and Foreman Trehal completed daily JSA discussing safety issues and alerting his crew of certain dangers including trench sloping and staying out of the “line of fire”. A JSA from a few days prior to the accident had even discussed warnings for standing under a suspended load, in reference to rigging. ACC’s progressive disciplinary action policy required an employees’ supervisor to provide verbal warning for a first offense, a written warning for a second, and termination for third offense. ACC’s policy requires all warnings and proposed solutions to be documented and placed in an employee’s personnel file. However, ACC only provided very limited documentation pertaining to disciplinary actions, which also did not pertain employees being in the line of fire, failing to perform ground tests or working underneath the bucket of an excavator. Rather the sparse records offered pertained to improper lane usages and working under the influence of alcohol. Foreman Trehal admitted during the trial that he did not follow ACC’s progressive disciplinary policy, he never documented violations and was unaware that he had to but would rather just yell at employees to if he observed a violation to correct their behavior. He recalled having yelled at the deceased employee for being in the swing zone without the operator seeing him on a prior site and he had also yelled at the operator on two prior occasions on operating an excavator with an improperly attached bucket after failing to conduct the ground test. Trehal admitted to never documenting these violations or administering any formal discipline.

The ALJ found that the Secretary (of Labor) met its burden of proof that ACC knew or with the exercise of reasonable diligence could have known of the hazardous condition. A failure to establish an adequate program to promote compliance with the relevant safety standards may be used by the Secretary to prove constructive knowledge of the hazardous condition by the employer. Here, ACC was deemed to have failed to establish an adequate program to promote compliance with its safety standards. Although it had various rules in place, ACC failed to effectively enforce those rules when violations were detected. Foreman Trehal would merely yell at employees to correct their behavior but never formally disciplined them nor documented their violations in their personnel files as he was even unaware this ACC policy. The failure to progressively discipline the operator for repeated failures to perform ground tests after attaching a bucket to the excavator, and the failure to clearly communicate to employees “that elevated excavators should be avoided as suspended loads, may have directly contributed to the hazardous conditions and accident.” Given that ACC’s own supervisory employees failed to follow the progressive disciplinary policy it could also not claim the affirmative defense of unpreventable employee misconduct. The Citation was therefore affirmed against ACC.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445

Fall protection must be provided to all employees working at or near edges with a drop of six feet or more either by a guardrail system, safety net system or other fall arrest system. The Occupational Safety and Health Review Commission’s decision in Secretary of Labor v. Gate Precast Company reaffirms the safety requirements for construction companies that have employees working at heights and the precautions and training they must undertake with their permanent, as well as temporary employees, if it is foreseeable that during operations those employees will come close to any edges, at heights over six feet.

This matter actually did not arise from an accident or injury but rather from a citation issued from an OSHA inspection. Gate Precast Company (“Gate”) manufactures and installs precast concrete structures and was a subcontractor in the construction of a six-story hotel in Texas. On May 4, 2015, Gate was intending to work on the uppermost floor or “roof” of a partially completed hotel. Gate had tied to and strung red tape between sticks wedged in gaps of the abutting precast planks of concrete, approximately six feet from the roof’s edge. The edge of the roof was un-protected and was approximately 24 feet above the ground.

Prior to starting work for the day, Gate’s foreman held a safety briefing to use personal fall arrest systems while working on the roof. However, two temporary employees (provided through an employment agency) arrived at the stie after the safety briefing had been held. They were not provided with any fall protection equipment. Gate’s foreman instructed these two temporary employees to assist with laying grout and to perform clean-up tasks on the roof. The foreman also specifically told them to remain behind the red tape. OSHA’s compliance officer was conducting and inspection and observed Gate’s foreman operating a fork-lift at ground level to lift a load of four-foot-wide precast concrete planks onto the roof. To assist with this operation, three Gate employees, one temporary employee and two permanent employees helped guide the load into place as the other temporary employee worked in a different area of the roof.

The OSHA officer upon viewing these operations subsequently issued a citation to Gates for violating the safety provision § 1926.501(b)(1) which requires that “[e]ach employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is six feet or more above a lower level…be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.” The Secretary (of Labor) must prove that the cited standard applies, employees were exposed to the violative condition, the employer knew or could have known of the violative condition with the exercise of reasonable diligence. Here, it was undisputed that the roof had unprotected edges of about 24 feet above ground level, neither of the temporary employees were provided with any personal fall arrest systems and that neither was instructed to, or actually utilize such system while conducting work on the roof and that Gate by via its foreman was aware of these conditions as the foreman had instructed the two employees to remain behind the red tape.

The issue in this matter was whether the temporary employees were exposed to the violative condition by showing either “actual exposure or that access to the hazard was reasonably predicable.” To determine access, the Administrative Law Judge (“ALJ”) will look at not that just access to the hazardous condition is theoretically possible but that it could be reasonably predicable by “operational necessity” or inadvertently which would place the employees in the zone of danger, which is the “area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent”.

The Occupational Safety and Health Review Commission (the “Commission”) agreed with the ALJ that the Secretary established exposure as to the one employee who assisted with forklift operations and was guiding the load of planks onto the roof. This employee was standing only about six feet from the unprotected edge and his attention was more focused on guiding the swinging load and keeping it stable, and points even looking up as the load was over his head. The OSHRC agreed with the ALJ that it could be reasonably predictable that this employee could have lost his balance, could have been knocked over by the swinging load of planks, or by inadvertently walking forward to the unprotected edge as his efforts were more focused on guiding the load. Therefore, even if this employee stayed behind the red tape he was still in the “zone of danger” of the unprotected edge. The distance from an unprotected edge is not the sole determinative factor to be considered but rather one of many factors in this “fact-intensive inquiry”. Other facts to be considered, can include the presence of tripping hazards such as debris or pipes, the size and weight of objects an employee was holding and the type of work which could make it reasonably foreseeable that an employee “could stagger…or stumble, placing him within the zone of danger”. Here, taping off the area and providing an instruction to stay behind was deemed insufficient. Lastly, the Commission found Gate’s argument that in looking at potential fall exposure, the temporary employee based on his initial job task, was not reasonably predictable that he would be performing this job task of guiding the planks. The Secretary argued that the performance of guiding loads fell within temporary employee’s role especially given that he was asked by other Gate’s employees to assist when they were encountering problems securing the load, he was never told by the foreman not to engage in such activity, and that the unstable nature of the load, and its weight and size required more than two workers to stabilize and guide. The Commission agreed with the ALJ in finding it was in fact reasonably predictable that he would be performing this task, and the citation was affirmed.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445

The decision in Secretary of Labor v. Tower King, II, Inc. should serve as reminder to the construction industry, and companies specifically involved in work on telecommunications towers that rigging plans must be coordinated between the contactor and qualified engineers, and if there is a change to that plan it must be updated, accordingly.

This matter arose from tragic incident in September 2017, in Florida, where three employees of Tower King, II (“Tower King”) were killed while working on equipment attached to a communications tower that detached and fell 1000 feet to the ground. Tower King, was a small company engaged in the construction and maintenance of telecommunications towers. The company was founded by Kevin Barber who had over 30 years of experience in the industry. Tower King had been retained to perform work on a television station’s tower in Miami, Florida. The tower stood at about 1000 feet and had a three-armed structure at the top, which was called an arbor. Each arm of the arbor had a pedestal on which an antenna sits. According to Mr. Barber, the tower was meant to originally hold three antennas for three broadcaster but one broadcaster backed out, so to balance the pedestal a “dummy pole” was installed. Tower King was contracted to remove the dummy pole and pedestal on which it sat and replaced with two-section pedestal and working antennae. To lower the old equipment and erect the new equipment to the top of the tower, Tower King utilized a “gin pole” which is a lifting device consisting of a latticed or tubular boom that would raise or lower parts of the tower into the necessary position. The gin pole would be attached to the arbor using a bridle connection at the top and a basket connection at the bottom. The connections would be made using steel slings tightened with chains. The gin pole and the equipment that would attach to the tower comprised the rigging system.

Tower King contracted with Stainless Inc. (“Stainless”) to perform the engineering review of the project given that Tower King did not employ individuals with an engineering background. Tower King needed to ensure that the tower could ensure that the tower would be able to sustain the loads of the project, inclusive of the rigging system. Stainless was to conduct an engineering review to determine the imposed loads resulting from the rigging system and certify that the structure could withstand them. Mr. Barber chose Stainless for among other reasons, because they had originally designed and manufactured the tower. Mr. Barber followed the standard practice of providing the rigging plan he developed to Stainless, who performed the calculations and certified the plans. Tower King had five employees at the site, and while two remained on the ground, while three worked on the tower and were properly secured by a personal fall arrest system for which they were tied off to the gin pole. The gin pole would be first be attached to the tower by raising it in place and setting it on a track attached to the arbor. Once the gin pole is set, it would be “tied back” or attached to the tower with the rigging equipment and after this process is complete, the workers would begin the process of removing the dummy pole by first detaching the old equipment and lowering it to the ground, using the gin pole. The new equipment would in turn be raised to the arbor by the gin pole where it would then be attached.

At the time of the incident, Tower King’s employees were in the process of completing the work to replace the dummy pole. Three employees were tied to the gin pole while two were working on the ground. As the they were moving the old pedestal that had been lowered, the gin pole detached from the arbor and fell to the ground killing the three workers. Authorities reported to the scene and Tower King notified OSHA who investigated obtained documents and issued a citation against Tower King under the general duty clause which requires each employer to furnish to each of his employee a place which is free from recognized hazards that are likely to cause death or serious physical harm. The Citation provided that in this instance, the “employees were performing work…with out a complete rigging plan and exceeded the capacity of the rigging attachments of a gin pole that was attached to the tower and used to hoist loads, exposing employees who were tied off to the gin pole to fall hazards…” The Citation proposed a feasible abatement method of ensuring “a complete rigging plan was developed and implemented including when appropriate, having a qualified engineer review the pertinent parts of the plan such as the means and methods of rigging attachments of the gin pole. Tower King contested the Citation and the on-going litigation ensued.

The parties did not dispute that the accident was caused by the overloading of the rigging components at the bridle connection. However, the Secretary (of Labor) must establish that the “identified deficiencies could have resulted in a miscalculation sufficient to pose an overloading risk.” The applicable ANSI standards for communication towers as developed by the American Society of Safety Engineers and the Telecommunications Industry Association were discussed and as further commented by expert engineers testifying for either side. The industry standards do not specify the required contents of a rigging plan but rather identify considerations such as operational and non-operation construction loads, construction equipment, supporting structure, required load testing, etc.

Ultimately, the Administrative Law Judge (“ALJ”) gave more weight to Tower King’s expert. The ALJ found that the evidence did not establish that a failure to specify the angle (of the rigging components) at the bridle connections in the rigging plan submitted to Stainless deprived Stainless of information necessary to perform an accurate calculation of the imposed loads and the Secretary failed to establish this omission posed a significant risk. The parties also did not dispute that Tower King utilized a longer (and heavier) gin pole than in the plan submitted to Stainless due to field conditions and requirements. The submitted evidence was unclear as to specific decisions pertaining to the changing of the larger gin pole in the field but the ALJ found it was not the contents of the rigging plan submitted to Stainless that posed the hazard, but the deviation from that plan in the field and the Citation here did not address deviations from the plan but the contents of the plan. In light of the issues with the Citation in respect to the actual conditions in this unfortunate accident, the Citation was vacated. Nonetheless, to prevent accidents during rigging operations, the contractors must communicate with the engineers should there be a deviation of the plans due to field conditions that would impact imposed loads.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445

The decision in Secretary of Labor v. Brubacher Excavating Inc & Traffic Control Services reminds us that construction companies conducting paving and excavation operations in public roadways must take efforts to protect both their workers and the public by maintaining proper and adequate traffic control devices. Moreover, the facts in this matter are typical for construction sites where due to personnel needs, companies send a different set of employees to the same jobsite over the course of multiple days, which further emphasizes the need for consistent coordination and communication.

The matter arose from an incident in which an employee of Traffic Control Services, LLC doing business as Flagger Force (“Flagger Force”), was struck by a vehicle. Brubacher Excavating Inc. (“Brubacher”) had been retained to perform certain construction including the installation of a water line in West Chester, Pennsylvania. After excavation and the installation of pipes, Brubacher covered the trench and began paving. These operations ran a total of four days beginning on May 31, 2017 and being completed on June 5, 2017. The work took place within the northbound lane and shoulder of Pottstown Pike, a multi-lane roadway. A traffic control plan had been approved by Pennsylvania DOT to shift traffic from the northbound lane into the middle lane which was typically a turning lane. The speed limit was not altered for vehicles traveling north and southbound, and remained 45 mph. Cones were placed as barriers for northbound and southbound vehicles, while one flagger worked on the north end of the jobsite while another worked on the south end to alert drivers of the changed traffic pattern. Brubacher retained Flagger Force for implementation of the traffic control plan as it provides traffic control services and had a long-standing relationship with Brubacher.

On May 31, David Duda (“Duda”), Brubacher’s supervisor met with Flagger Force employees to advise of his crew’s activities and the location of their work. As work began on that day, Duda travelled the entire area of the site to ensure that the three sets of advance warning signs were properly in place as set up by Flagger Force’s employees. Specifically, the warning signs were set-up at three locations: (1) the northbound side of Pottstown Pike; (2) the southbound side of Pottstown Pike; and, (3) along the Route 322 exit ramp, which connected another roadway to a portion of Pottstown Pike that was near the worksite at approximately 250 feet. Duda completed a Safety Observation Compliance Form as he typically does on the first day of any of his project to ensure nothing was overlooked. Slight changes were made by Duda in consultation with the Flagger Force employees in the first three days of the project to improve traffic flow. During these three days, the same employees from Flagger Force were present, consisting of a crew leader and a crew member. On the last day of the project, June 5, two different employees were sent. Despite consultations with Duda, these employees only set-up warning signs on the northbound side of Pottstown Pike, the area closed to the paving work but not on the southbound side nor on the exit ramp as had been done on the three prior days. After about two hours of work, a car traveling on the northbound lane failed to adhere to the traffic control pattern and struck one of the Flagger Force employees, seriously injuring him.

OSHA was notified of the incident and after conducting an investigation involving the interview of various Brubacher and Flagger Force representatives as well as receipt of investigative materials from local police’s investigation, issued citations against Flagger Force¹ under the relevant safety standard § 1926.200(g)(1) which currently provides that “At points of hazard, construction areas shall be posted with legible traffic control signs and protected by traffic control devices”. OSHA cited a violation of the safety standard by in the failure to provide at least one advance warning sign for motorists approaching the worksite from two directions, the exit ramp linking Pottstown Pike to Route 322 and the southbound lane. To satisfy the standard, companies must convey that work is taking place, provide information about the roadway conditions, and information about how traffic can move through the temporarily revised traffic pattern.

As to the southbound lane, although the traffic control plan did not require a full lane shift for southbound traffic, the lane was partially obstructed and as Duda testified the traffic pattern required a two-foot diversion for southbound traffic, and if motorists were not aware of the diversion they could cross into the northbound lane. Moreover, the traffic control plan required the placement of cones along the middle turn lane so if a vehicle were to strike one of these cones it could act a projectile causing injury. Duda testified that due to all these reasons, a “flagman ahead” sign should have been present both on the north and southbound sides and as further confirmed by Flagger Force’s own policies mandating the need of advance warning signs. These signs were in fact present on the first three days of work. Similarly, the Route 322 exit ramp, had two signs indicating “work area ahead” and “flagmen ahead” for the first three days. Under these circumstances, the Administrative Law Judge (“ALJ”) confirmed that the Secretary (of Labor) met its burden as against Flagger Force showing the cited standard applied, the standard was violated, the employer knew or should have known the violative condition and employees were exposed to the condition.

However, Flagger Force was also able to establish the defense of unpreventable employee misconduct by showing that it had established work rules designed to prevent the violative condition from occurring, (2) adequately communicated those rules to employees, (3) took steps to discovery violations those rules, and (4) effectively enforced those rules when violations discovery. Flagger Force had a specific written work rule and in fact its first “fundamental principle” of flagging was to have advance warning signs in place. Flagger force had general safety rules in place and its employee handbook, received at the commencement of their employment, set forth that employees are to follow the procedures learned in training and any violation of the safety rule was “prohibited and could lead to termination”. Flagger Force incorporated its work rules in a comprehensive training program consisting of a four-hour training course and passing a written exam, in addition to a six-hour orientation program. Employees had to re-take the four-hour course every four years. Crew leaders completed an additional three-day training, as well as an additional one-day re-freshers, three times a year. All crew members and leaders were required to know the “ABCs of Flagging” and they were given written training materials which directed the employees to never start flagging operations “without signs on the road” as well as sign placement, including the placement on both sides of the road. Flagger Force would conduct random checks to ensure compliance with 41 separate issues including proper signage, whether they were abiding by the Manual on Uniform Traffic Control Devices, etc. It had an auditing system in place to visit at least 20% of the company’s worksites per month and if issues are found, more frequent inspections would be conducted. Moreover, none of the Flagger Force employees who had worked at this site had had a record of prior violations. Flagger Force had a progressive system of discipline for violations of the advanced warning sign work rule and showed how it had in fact terminated employees for violating these rules. Under all these circumstances, the ALJ found that Flagger Force could not have anticipated a “potential departure” from its training program and established work rules and vacated the citation.

¹ A citation was issued against Brubacher as well which was ultimately dismissed based on their lack of knowledge of the violative conditions under the circumstances.

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The decision in Secretary of Labor v. Ward Vessel & Exchange Corporation reminds us that construction companies must have adequate lock-out/tag-out systems in place to prevent injuries to their employees including during the servicing of such equipment. The decision arose from a January 23, 2021 incident in which Ward Vessel & Exchanger Corporation (“Ward”)’s employee had the tips of his fingers pinched in a plate rolling machine as his supervisor who was troubleshooting a power problem, activated the equipment.

Following the reporting of the accident, OSHA’s Compliance Safety and Health Officer Javier Fernandez (“CSHO Fernandez”) appeared, and conducted an investigation, inspected the equipment, a Roundo plate rolling machine (the “Roundo”), and conducted interviews of Ward’s employees. Following its investigation, OSHA issued multiple citations against Ward. OSHA alleged that Ward failed to implement adequate lock-out/tag-out (“LOTO”) procedures. Ward replied that the LOTO safety standard for which they were cited did not apply in this instance and furthermore that the LOTO requirements did not apply to troubleshooting because the work process either required an energization of the Roundo or that the proper implementation of the work processes removed the subject hazard.

The Roundo consists of a series of rollers that turn large metal plates into cylinders. The equipment is powered by a hydraulic motor which is energized by a one cord and plug. The cord is then plugged into a 480-volt breaker on the adjacent wall. Ward’s Vice President of Production, Bob Besh (“Besh”) testified at trial that the roller is a single-plug, single energy source machine, which can be de-energized by simply unplugging it. Ward’s employees can either lock-out the breaker on the wall or place the plug in a lockable container. The latter method was preferred since one could run an extension cord to plug the machine into a different outlet. The roller was energized in the same manner as about 30 to 40 other welding machines at their work-shop which all used a single 480-volt break and single cord and plug. Ward used the same general procedure for LOTO on all 480-volt, cord and plug machines.

During his inspection and investigation, CSHO Fernandez learned that the Roundo had hydraulics in addition to the electric power and deemed that the single, general procedure for LOTO was insufficient. However, CSHO Fernandez during his testimony was unable to describe how the hydraulics worked nor how the hydraulic energy should be controlled to prevent unexpected energization. Besh, though testified that the hydraulics were used to raise the bottom rolls to impact the metal but that there was no stored potential energy to create a pinch point when the equipment was not in use because there was no pressure on the hydraulics.

Ward’s night supervisor, Frank Hernandez further testified as to the process for making steel cylinders and using the Roundo, which requires a two-person team process to clean and prepare the equipment. The process involves creating space between the three rollers to wipe down and clean the rollers and then wrap each one in plastic. Ward does not require its employees to de-energize the Roundo when preparing it for stainless steel applications but rather requires a series of steps to remove any pinch-point hazards or the release of hazardous energy. On the night of the incident, Hernandez directed two employees to prepare the Roundo for stainless steel cylinders but when they tried to lower the bottom rollers to begin the cleaning process the rollers failed to move. Hernandez was called over and two of them began to troubleshoot while Hernandez directed the third employee (the injured employee referred to as “IE”) to gather additional cleaning solution. Hernandez discovered that a superfluous extension cord had been connected from the Roundo to the breaker. In light of the voltage at issue, the employee turned off the breaker, removed the extension cord, reconnected the Roundo’s cord and then re-energized the breaker. At that point, Hernandez activated the rollers when he heard the IE begin to scream. Apparently, and unbeknownst to either Hernandez or the other troubleshooting employee, the IE had not only collected the cleaning solution, but he had begun wiping down the rollers so that once the Roundo was activated, the IE’s fingers were briefly pinched between two rollers before he pulled them out. He was taken to the hospital and received treatment.

Following the accident, Ward conducted its own internal investigation and determined that the injured employee had violated the company rules by attempting to clean before all necessary steps had been taken. Specifically, the two employees knew that they were not supposed to proceed with cleaning when the rollers had not been lowered and they had in fact contacted their supervisor Hernandez regarding the problem. As the rollers were in the “up” position IE attempted to clean, which constituted a violation of company policy. More importantly, Ward determined that Hernandez failed to ensure the area surrounding the Roundo was clear prior to troubleshooting the machine and he was subsequently disciplined.

The LOTO standard covers the servicing and maintenance of machines in which the “unexpected energization or start up… or release of stored energy could cause injuries to employees.” Ward claimed two exceptions to the standard (1) the exception for cord-and-plug machines and (2) the exception from the machine-specific procedure requirements and the Administrative Law Judge (the “ALJ”) agreed. The ALJ found that the “hazards of the unexpected energization… is controlled by the unplugging of the equipment from the energy source and by the plug being under the exclusive control of the employee performing the servicing…” Here, disconnecting the Roundo from its power source removed the hazard of stored energy potential energy as there was no stored pressure in the hydraulics. The lock-out condition was accomplished by placing the plug of the machine in a lockable container. Hernandez had been performing energized troubleshooting at the time of the incident which was governed by a different safety standard and was accounted for in Ward’s LOTO policy. Employees would have to adjust the roller heights to eliminate the pinch points as well as speed down the velocity of the rollers to a “snail’s pace” to wrap them in plastic. Ward’s policy requiring Hernandez to clear the surrounding area from the equipment while troubleshooting was compliant with the LOTO standard, which required it as a condition of performing “operational testing”. Basically, Ward is permitted to conduct energized operational testing of equipment as long as it takes proper precautions to avoid injury. Here, Hernandez violated Ward’s policy which caused this accident and the ALJ agreed. Given that Ward had been cited under certain LOTO standards for which it was determined it was exempt the Citations items were vacated. The Secretary had the burden to match the safety standard with the condition allegedly violated and here it had failed to meet its burden.

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The recent decision in Secretary of Labor v. Asplundh Tree Expert, LLC discussed feasible and effective methods to reduce or eliminate harm to employees performing tree trimming operations. Of course, in this field, proper and well-documented training of employees is needed given the danger of falls and falling objects. The decision arose from an unfortunate November 2, 2020 incident where a worker for Asplundh Tree Expert, LLC (“Asplundh”) fell during a tree trimming operation in Colorado and suffered severe injuries.

Asplundh is a nationwide tree-trimming company with over 34,000 employees. It had contracted with an electric utility company to prune and manage vegetation affecting its power infrastructure including trimming and pruning several dead trees that were interfering with the utility’s powerlines. On the day of the incident, Asplundh sent its crew consisting of the crew foreman, James Haynes and two crewmen to remove the top portions of several large trees. Upon arrival at this site, the crew performed a Job Safety Briefing prior to commencing work, which included a description of the tasks performed, necessary tools, potential hazards including dead trees, and steps to ensure safety. The Job Safety Briefing was signed-off by each crew member.

Although Foreman Haynes had determined that they needed a bucket truck that could extend 60 to 70 feet carrying a tree trimmer (a “60/70 bucket truck”) another employee for Asplundh testified and confirmed that they did not have authority to use this type of truck on this site. As alternative, Asplundh provided a second crew with a smaller squirt boom that can lift the tree trimmer in the air up to a 42-foot working height. Prior to the second crew’s arrival, the crew member from the first crew who was an experienced climber (with 17 months of experience), and who was unaware of the second crew’s arrival, began to climb to dead tree and made it up to 35 feet, at which point he stopped being unable to climb further due to the tree’s structural weakness. The remaining 35 feet of the tree needed to be cut and prior to beginning his work, he tied into a fall protection system by securing his lanyard around the main stem of the tree while securing his climbing line around the branch he was standing on. The crewmember began to make his cuts which were unobserved by the crew on the ground who were working on the opposite side. It was determined post-incident that he performed this cut improperly by a mere few inches, which caused the top of the tree to fall in an unintended direction. The top portion of the tree (weighing about 875 lbs.) struck the branch on which he was standing, and which his tie-off was secured. The impact further led to the lanyard around the main stem to lift over the area, in which he was tied off, and therefore caused him to fall 35 feet to the ground sustaining various serious injuries.

Following the incident, OSHA investigated and issued a violation of the Occupational Safety and Health Act’s general duty clause in alleging that Asplundh “did not provide safe means and methods to remove a dead cottonwood tree in cold weather” which exposed their employees to a struck-by and fall hazards while performing tree operations. The Citation further indicated the feasible and effective means existed to eliminate or reduce the hazards by among other methods “ensuring that all dead limbs are trimmed from a safe distance by using a bucket truck or similar equipment”.

The general duty clause requires employers to furnish their employees a “place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm…” To prove a violation of the general duty clause, the Secretary of Labor (“Secretary”) must prove a (1) a condition or activity in the workplace presented a hazard; (2) the employee or its industry standard recognized the hazard; (3) the hazard was likely to cause death or serious harm; and (4) that a feasible means existed to eliminate or materially reduce the hazard. The Secretary must also prove the employer knew or with the exercise of reasonable diligence could have known of the hazardous condition.

The Administrative Law Judge (“ALJ”) found that Secretary succeeded in showing the existence of some but not all of the above-mentioned elements. The conditions of falling trees pose hazards to Asplundh’s employees and the Secretary was able to show through their expert witness that trimming dead trees such as cottonwood could lead to falling and crushing employees given that the dead trees are suspect and often not structurally sound and unpredictable. Asplundh acknowledged as much from this its job briefings, Job Hazard Assessment and investigative reports and further acknowledged and recognized the hazard. Supervisory personnel also recognized the hazards and had signed the Job Safety Briefing. They provided written safety policies defining the hazards associated with dead trees and discussed it within their Line Clearance Qualification Standard Employer Training Manual, which specifically addressed the “felling path” of a tree, struck-by and falling hazards, and the danger zone around the tree to be felled. The manual further discussed the type of cuts to be used when trimming trees. The materials also referenced industry standards regarding safety tree trimming measures for which Asplundh’s employees were trained including fall protection systems and tie-in procedures. The existence of these standards established the industry’s recognition of the hazards. Furthermore, the actual incident itself demonstrated and proved that that the hazard was likely to cause severe injury and/or death.

However, the ALJ found that the proposed abatement in the Citation was not feasible. The industry standards did not require use of 60/70 bucket truck and there was nothing in this instance that required one. The Secretary’s own expert conceded that a qualified climber could perform the work with the equipment provided and the use of the bucket truck in this instance would also actually create an additional electrical hazard as the trees were in proximity to power lines. Asplundh provided training and associated materials that met or exceeded industry standards. Here, the ALJ found that the Secretary failed to present evidence that training enforcement or employee supervision would materially reduce the hazard. Furthermore, since the incident happened so quickly at the elevation, other employees would not be able to impact the direction of the falling portion of the tree or to correct the crewmember’s mistake of cutting too deeply into the trees by mere inches. In light of the above, the Citation was vacated.

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The recent decision in Secretary of Labor v. Americold Logistics, LLC reaffirms the need for construction companies to provide proper training and establish rules and regulations for their employees when using powered industrial vehicles (“PIVs”). Further, companies can better ensure employee safety by conducting routine, documented, monitoring of employee practices and performance, while also maintaining and enforcing their disciplinary programs.

This decision arose from a work-place incident where an employee was severely injured while working in a large cold food storage facility in Georgia. Americold Logistic, LLC (“Americold”) temporarily stores food products and performs various operations from its Savannah 2 facility. Each shift had four floor supervisors, and each supervisor was responsible for a team that consisted of PIV operators and laborers. Different types of PIVs were used at this facility including fork trucks that were used to load and unload product and move around the facility, and reach trucks that were used to stack and remove products from the racking systems. Tractor trailers containing the food products would be unloaded at the loading dock with the use of the fork trucks. A PIV operator would then move food products into the blast freezer where they would be flash frozen. Once the food products were frozen, laborers would restack the products on pallets and PIV operators would then use the reach trucks to move them into freezers.

On July 7, 2022, an Americold employee who was driving a fork truck and making a turn, stuck out his food and caught it between a bollard and the truck, injuring his ankle. OSHA was notified of the accident and an OSHA Compliance Safety and Health Officer (“CSHO”) appeared on-site and conducted an investigation. During her investigation, the CSHO noted that she even had to step-out of the way from a PIV during her walk of the premises with management. She appeared again in September 2022 and observed similar conditions as in her earlier visit. She also interviewed the injured employee. The CSHO subsequently issued safety citations including permitting an untrained person to operate a PIV. The applicable safety standard required an employer to “ensure that each operator has successfully completed the training required by this paragraph” prior to being allowed to operate the vehicle.

To prove a violation, the Secretary of Labor (“Secretary”) must show by a preponderance of the evidence (i.e., that it was more likely than not) that (1) the cited standard applies, (2) there was failure to comply with the cite standard, (3) employees had access to the violative condition, and (4) the cited employer either knew or should have known of the condition with the exercise of reasonable diligence.

Americold’s former floor supervisor, Lamar Church testified as to Americold’s training procedures for PIV operators and explained that their training consisted of three parts. New operators would first be shown a 30-minute video created by the PIV manufacturer that addressed different operating and safety topics. The employees would then attend a class held by a supervisor who presented a 76-slide PowerPoint presentation on the vehicles’ operations and safety. The employees would then complete their training by receiving hands-on training and proficiency testing. Operators would also receive annual refresher training and recertifications, every three years. However, if an operator was involved in an accident or was observed operating a PIV unsafely, they would be mandated to immediately take the refresher and recertification. Americold had procedures and rules in place for PIV use, which included instructing operators to slow down and sound their horn when approaching pedestrians (within the warehouse). An operator would also complete a vehicle inspection checklist before starting-up the vehicle, and if it failed the inspection, it would be taken out of service. The company also had installed software which required an employee to have an ID badge with the appropriate credentials, which they would have to swipe before starting the vehicle. The PIVs also had speed governors installed that limited the vehicle’s speed to five miles per hour.

Furthermore, floor supervisors were responsible for conducting three “behavior-based safety observations” per day which included observing an employee conducting their work for 30 minutes, after which the floor supervisor would coach the employees on what was observed. Floor supervisors also had to conduct “coaching method observations” twice a day involving observing an employee conducting certain job skills. Americold’s disciplinary program included termination for serious safety rule violations. If a supervisor observed such behavior, they could request an employee’s immediate termination and the request would then be reviewed by a safety panel which determined the final outcome for the employee.

Here, Americold’s records indicated that the injured employee had not completed their training program and Americold conceded that the employee was not authorized to operate the PIV. The employee was exposed to the hazards associated with untrained use of a PIV and was in fact severely injured. The Administrative Law Judge (“ALJ”) found that Secretary had established the first three elements of the alleged violation. However, the record was unclear as to whether any supervisory employee had actual or constructive knowledge of the violation.

The injured employee did not testify at the hearing, and the Secretary only presented the CSHO’s account of her interview with the employee without documentation, in which she recalled that another PIV driver badged-through the PIV’s system permitting this employee to use it. She also was told that a supervisor overrode the system after this employee failed the safety questions. However, the record contained no evidence corroborating the injured employee’s statement as provided through the CSHO. Further, the ALJ found the CSHO’s account that unnamed employees informed her that supervisors had observed unauthorized employees using PIVs, as unpersuasive. Therefore, the Secretary failed to establish that Americold had actual knowledge of the violative condition.

The ALJ’s Decision then looked at whether Americold should have known or been aware of this violative condition. The evidence presented in fact showed that Americold had written rules prohibiting unauthorized use of PIVs which included training provided to all employees. They also had controls in place requiring ID badges showing training and certification to operate the machine and employees had to perform a safety inspection prior to even starting the PIV. Although Americold conceded that an authorized employee’s card could be used by an unauthorized employee, Americold was unaware of any similar instances and Secretary had not shown any evidence of this practice. Americold also had two forms of routine, documented, monitoring of employee safety and performance as well as a disciplinary program for which it established it had terminated three of its employees, months prior to the accident for PIV violations. Under these circumstances the Secretary failed to meet its burden and the Citation was vacated.

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Power saws, shears, presses and other machines typically used in construction require one or more methods of machine guarding to protect operators from the hazards created by using these machines, and companies cannot merely delegate such duty to its own employees. The recent decision in Secretary of Labor v. Good Food Concepts, LLC d/b/a Ranch Food Directs is instructive as to the need for machine guarding. Although this matter arose from an unfortunate accident involving use of a meat grinder leading to the amputation of the worker’s fingers, the use of equipment with similar hazards are common in the construction industry and even if a company has stringent work rules in place they do not act as a substitute for guarding when an employee is in the zone of danger.

Ranch Foods is a meat processing business which also operates a retail store in Colorado that had approximately 15 employees in 2021. The owner of Ranch Foods, Mr. Michael Callicrate, visited the store twice a day, four to five times a week. Although he oversaw store operations, he delegated management and supervision to the store’s general manager, Mr. John Morrill and the head of the meat department, Mr. John Wichman. Mr. Morrill had held his position for 3 ½ years and typically he would visit the store every day to pick up receipts from the prior night and discuss any issues/needs with the employees during these visits. He was charged with safety compliance and discipline at the store and could remove employees for safety violations although he had never conducted any internal safety audits nor examined any of the equipment. If equipment was not operating properly, he expected his employees to report these problems and stop using that machine. They relied on “observation by managers and other employees” to ensure a safe work environment but safety violations were not documented, unless disciplinary action was required. They also posed a Code of Safe Practices in the common area, along with other labor law materials and schedules. Ranch Foods did not have a formal safety and health training plan and employees were given a handbook that contained the company’s disciplinary policy. Specific safety and equipment training was expected to be conducted by an employee’s immediate supervisor. Mr. Wichman, who held over 50 years of experience in the meat industry, trained new meat-cutters regarding the operation of meat cutting tools and machinery and was responsible for ensuring the employees operated the machinery safely. The employee involved in this underlying accident (hereinafter “Ms. Doe”) had been trained by Mr. Wichman, including the use of the meat grinder and the use of a stomper, an 18-inch cylindrical tool used to push meat down the throat of the grinder as well as cleaning and disassembling the grinder’s components which generally consisted of a hopper, a throat, an auger and rotating blade. The operator would place meat in the hopper and push down the throat of the grinder towards auger and blades that ground the meat. The stomper could also be used to push the meat down the grinder throat but sometimes the stomper was ineffective, and operators would use their fingers to dislodge meat from the walls of the throat. The grinder jammed frequently, and Mr. Wichman had trained this employee how to clear the jam by reversing it and then re-running it. If the jam did not clear, the operator was expected to disassemble and clean the machine. Mr. Wichman did not utilize any training materials nor videos, nor had he reviewed the grinder’s manual or OSHA publications pertaining to the safe use of meat grinders. Mr. Wichman trained this worker to avoid using her fingers to push the meat down the throat of the grinder but even though he knew it was dangerous, Mr. Wichman used his own fingers to push meat down the throat to about 2 inches (of the total 4 ¾ inches in length) since he was comfortable with this practice given his experience but advised employees not to do so because it was unsafe. No written rule existed prohibiting this practice and he had never formally reprimanded any employee for doing so.

On June 11, 2021, Ms. Doe was operating the meat grinder when it jammed. She reversed the machine but was unsuccessful. She then observed that extra meat was on the side of the throat, so she reached into the throat to push it towards the auger. At that point her right hand was caught and pulled into the grinder. Mr. Wichman unplugged grinder and an ambulance. The EMS personnel, after deliberation transported Ms. Doe with the grinder to the hospital. After emergency surgery which reversed the grinder’s motor, free the hand and amputated four fingers.

OSHA received notice that a worker had lost four fingers in a meat grinder and on June 15, 2021, a Safety Officer investigated the store, interviewed employees and took photographs. Following the investigation, Ranch Food was issued multiple citations. The relevant citation for our discussion pertained to violation of the safety standard which requires, one or more methods of machine guarding to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks, by methods such as barrier guards, two-hand tripping devices, electronic safety devices, etc. The citation set forth that Ranch Foods failed to ensure that the grinder was guarded effectively or that tools other than hands were used for pushing small amounts of meat through the grinder when the stomper was ineffective.

The Administrative Law Judge (hereinafter “ALJ”) found that the cited standard applied in this instance. The meat grinder presented a point of operation, ingoing nip point, and rotating parts with the potential for serious injury, which was being used during its “normal production operations” and did not a maintenance activity, which would have involved a different safety standard (lockout/tagout standard which places a larger onus on the equipment operator). The purpose of this safety standard is to not make it primarily dependent on human behavior but rather to provide a safe environment “regardless of the employee’s intelligence, skills and tendency to neglect a specified course of conduct”. Ranch Foods argued that the grinder’s own design prevented employee’s exposure as adult hand could not enter the zone of danger and further that the stomper, alleviated the need for use of an operator’s fingers to push meat into the throat of the grinder and further that operators were warned against this use. However, the safety standard prohibits tools to be used in lieu of a guard and therefore the stomper was inadequate. Moreover, the safety standard does not permit guarding by work rules but rather requires a physical guard so as not to depend upon correct employee behavior. The practice of inserting their fingers in the meat grinder to dislodge meat within 2 to 4 inches from the rotating auger, as confirmed by Mr. Wichman and other employee testimony, established that this was a common practice for which it was foreseeable that an operator would put their hands within the zone of danger. The inadequacies of Ranch Food’s safety training and precautions established that supervisor, Mr. Wichman, own violation of safety rules was foreseeable to impute knowledge of these violative conditions on the Ranch Foods of this practice. Furthermore, an employer could not merely delegate the duty of safety to its employees, and the general manager, Mr. Morrill’s reliance on employees to act safely and report any safety issues and his own failure to discipline any unsafe actions or examine equipment for safe operation did not allow Ranch Foods to escape responsibility. Consequently, the Citation was affirmed.

Ranch Foods was also cited for failing to timely notify OSHA of this accident, which was also affirmed by the ALJ. Pursuant to the applicable rules, all employers are required to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye. A fatality must be reported within 8 hours, while an in-patient hospitalization, amputation, or eye loss must be reported within 24 hours.

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