As has been previously shown in this safety series, Labor v. Sentinel Systems, LLC emphasizes the need for construction companies to provide proper instruction and training to their employees in the proper use of heavy equipment so as to avoid hazards associated with their use, in this instance the use a utility vehicle on paved surfaces with tires designed for off-road use, only.

Sentinel Systems, LLC (“Sentinel”) was one of the contractors involved in the construction of the American Dream Mall complex in East Rutherford, New Jersey (the “Project”). Its scope involved applying resinous floorings in the indoor amusement park and installing epoxy flooring in a parking garage. It had about 100 employees working on the Project.

On October 9, 2019, a Sentinel employee was driving a Bobcat Utility vehicle (“UTV”) when he fatally crashed into the front end of an empty flatbed semitrailer in a parking structure. The accident occurred at around 2:15 pm, in a parking structure that was used as a staging area for construction materials. A semitruck dropped off the flatbed for the offloading of material. The front end of the flatbed was exposed and was supported by front landing gear. This portion of semitrailer did not have any reflective materials and its location was not demarcated by traffic cones. Although the artificial light was sporadic, there was enough ambient natural light that the front end of the semitrailer would have been properly observable a reasonably attentive driver. The decedent employee was last seen by the GC’s superintendent driving the UTV about 10 mph, and in the parking structure when he struck the flatbed. It was inferable form the circumstances that the decedent did not discern the presence of the parked semitrailer before striking it.

After an investigation, OSHA issued a Citation with a single violation of construction industry standards titled “Safety training and education” which provides that “The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury” and that Sentinel violated the standard by not providing “the Bobcat operators instruction on operating a Bobcat utility vehicle on pavement with tires that are designed for off-road use only”. The Citation proceeded to quote two provisions from the manufacturer’s Operation and Maintenance Manual (“Manual”) for this equipment: 1) “AVOID INJURY OR DEATH. Read this…Manual. Understand all…precautions and operating procedures before operating this vehicle.”; and 2) “This vehicle’s tires are designed for off-road use only, not for use on pavement. Operating this vehicle on paved surfaces…can alter the vehicle handling and may cause loss of control. Avoid operating the vehicle on pavement. If it is unavoidable, travel slowly and avoid sudden turns or stops.” The Recommended Abatement Action, included with the Citation, re-quoted the same 2 Manual provisions indicating OSHA’s Compliance Officer’s (“CO”) position that had Sentinel provided its operators with instructions that conformed to the two referenced provisions, the accident could have been avoided.

The Citation focused on two issues. 1) What instructions and training did Sentinel provide if any to driving the Bobcat UTV on paved surfaces when the tires were designed for off-road use only; and 2) Whether the Secretary met its burden to show that a “reasonably prudent employer” under the same circumstances would have done more to instruct its authorized operators on driving the Bobcat UTV on paved surfaces with tires that were designed for off-road use. Here, the record showed that Sentinel met its burden while the Secretary did not.

Sentinel was able to show that it had authorized only 9 managerial employees to operate the Bobcat UTV and that each authorized operator had prior experience operating similar vehicles. Sentinel had established that it had instructed each employee to review the Manual and had instructed each to drive no faster than 15 mph at the site, and it had assessed the knowledge of competence of each employee in individual test drives at the site. The Bobcat UTVs had been delivered to Sentinel at the Project and its president and Director of Field Operations (“DFO”) were present to accept them. The president had advised the DFO that he would be responsible for employee training. The equipment dealer representative trained both the president and the DFO and tailored the training to the conditions at the Project site. The surfaces for vehicle traffic at the Project were in constant flux and included gravel, earthen and paved surfaces. The dealer advised the president and DFO that the UTVs must not be driven at speeds of more than 10 to 15 mph, specifically on paved surfaces and advised them that operators not familiar with the vehicle should read the Manual. Only nine management level employees were authorized to operate the UTV, including the president and DFO. These seven employees including decedent had informed the DFO that they had experience operating similar vehicles. Moreover, the DFO provided one-to-one training on the operation of the UTV especially since Sentinel recognized that operators may encounter the hazard of losing control of the UTV when operating on paved surfaces. The training including the instruction of not driving faster than 10 to 15 mph at the Project and to drive in two-wheel mode when driving on paved surfaces for better handling. The DFO also rode with each of the seven employees on test drives at the site. After the training and test drive, each employee expressed confidence to the DFO that they could safely operate the UTV. The DFO also instructed each operator to review the Manual which was in the UTV’s glovebox. Before this accident there had not been any instances of any authorized employees driving the UTV in an unsafe manner.

The cited safety standard by OSHA is a general safety standard and therefore the ALJ utilized a reasonable person standard – would a “reasonably prudent employer” under the same circumstances have done more to instruct its authorized operators on driving the UTV on paved surfaces with tires that were designed for off-road use. Here, although Sentinel appeared to have initially offered conflicting accounts to OSHA’s Compliance Officer during the investigation following the accident, the evidence that was submitted showed that in fact Sentinel had taken adequate steps and instructions that were specific enough to advise employees of the hazards associated with use of this particular equipment and the Citation was vacated.

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Construction companies must not only ensure that they have a proper safety program in place, but that it is also adequately communicated and enforced by documented audits and consistent employee discipline, as shown in the matter, Secretary of Labor v. J.D. Abrams, LP. In this matter, the Administrative Law Judge (“ALJ”) affirmed the citations arising from an employee working in a trench excavation, over five feet deep (without proper cave-in protection) and the use of ladder in that trench that did not extend the minimum requirement of three feet above the landing surface.

J.D. Abrams, LP (“Abrams”) performs highway construction projects with about 500 employees. On December 3, 2019, Abrams, was engaged in a large waterline installation project in Austin, Texas. The installation supervisor (foreman) had worked for Abrams approximately two years and he had worked in excavation for over thirty years. He was supervising a three-person crew on this project: one person operated the excavator; the second worked in the trench; and the third worked outside the trench. This particular crew had worked on a section of trench that had been flooded on the previous day when a trench box crushed a section of pipe. No one was working inside the trench at that time and that portion had been repaired. On December 3, the foreman advised his crew that they would not use a trench box that day due to the prior day’s issue. They began excavating the trench, which ran parallel to the road on one side and to the sidewalk on the other. About 18 inches of rock was excavated from the lower layer while the middle layer was determined to be Type B soil. The top layer consisted of about a foot of asphalt on the wall closer to the roadway and six inches concrete and wire mesh material, closer to the sidewalk. One employee would use a ladder to go down into the trench, and prepare the base for a section of pipe, the excavator would then place that portion of pipe. The process would be repeated, and the ladder would be moved further down.

Two OSHA officers arrived at the site to observe the conditions, take photographs, measurements, and employee statements. The trench was six feet wide and between 60 to 86 feet long. The trench depth was measured in three separate locations, and each was over five feet: five feet, eight inches; six feet; and six feet, seven inches. The top of the ladder used to access and exit the bottom of the trench was two feet, eight inches above the landing surface. The foreman at the site admitted that he knew that a trench over five feet in depth had either to be sloped back or protected with a trench box, but he had avoided its use to avoid the incident that occurred on the previous day. He also knew that the top of the ladder should extend three feet above the landing surface, and he had verified it at the beginning of work that day, but he did not continue checking as work progressed.

OSHA cited Abrams for two items: Item 1 pertained to failure to properly protect workers from cave-ins during excavation, which specifically provides that adequate protective systems are required unless excavations are made entirely in stable rock or the excavation is less than five feet in depth and an examination of the ground by a competent person provides that there is no indication for a potential cave-in. Here, employees were noted to have been working in a trench approximately six foot seven inches in depth, without shoring, a trench box or other adequate protective system. Abrams unsuccessfully attempted to argue that the depth of the trench was less than five feet by not including the bottom layer of solid rock and the top concrete/asphalt layer. The ALJ dismissed this argument given that the case law is clear that depth of a trench is measured from the base to the top regardless of the various types of soil or other materials that it consists of. Moreover, the stability of the excavation is evaluated by the weakest material in the structure. Therefore, no exceptions applied, and an adequate protective system was needed, and not provided.

Item 2, cited Abrams for failure to require a portable ladder extend at least three feet above the upper landing surface, exposing the employee to a fall hazard. Here, the top of the ladder extended by two feet, eight inches, and clearly did not comply with the requirements of the cited standard. Given that it was also clearly known by the foreman, the Secretary proved its case for this violation.

Abrams asserted an unpreventable employee misconduct defense as to both citation items and referred the ALJ to its extensive Safety Program. To prevail, on this defense, an employer must show that it “1) established work rules designed to prevent the violative conditions from occurring; (2) adequately communicated those rules to its employees; (3) took steps to discover violations of those rules; and, (4) effectively enforced the rules when violations were discovered.” The ALJ found that Abrams met the first two criteria. Abrams had established adequate work rules that in effect mirrored OSHA’s standards that were cited here, and they were effectively communicated to its employees.

Abram’s Safety Program included a 72-page employee safety manual (the “Manual”) available in English and Spanish, training, and Abrams employed area safety coordinators. Each employee was provided a copy of the Manual during company orientation and received training. The Manual is organized into twenty-five safety topics including excavations, fall protection, stairways, and ladders, etc. The Manual specifically set forth that that no one should enter into an unprotected trench with a depth greater than five feet, unless protected by a trench box, or the sides of the trench are sloped back. Ladders must be set-up with side rails extending a minimum of 36 inches above the landing. Abrams also employs four safety coordinators dedicated to safety, training, auditing of worksites for safety compliance and investigating incidents. The foreman had received excavation training about four of five times during his tenure, as well as interactive training. Abrams conducts every Monday, a 30-minute safety meeting for its staff at every active project where attendance is documented by the signing the Supervisor’s Safety Training Report attendance sheet. Moreover, each day a foreman has a five-to-ten-minute meeting with the crew to go over the work plan and necessary safety measures.

However, Abrams failed to prove that it took steps to detect violations to its safety rules and it did not ensure enforcement and consistent discipline. According to their policies, Abrams’ safety coordinator was required to audit each project at least once per month. If any safety violations are found, the project’s superintendent would be notified so that violations are corrected immediately. Each month, the safety coordinators should report the results of their audits to their management team that would include safety issues and their remediation. However, no documentation of the audits or reports were submitted. The fact that no safety coordinator came to the project on the prior day as result of the crushed pipe flooding the trench suggested that the safety coordinators did not consistently respond to near misses.

According to Abrams, employees who failed to follow their work rules were disciplined either by verbal warning, suspension or termination depending on the nature and severity of the violations. Here, the only offered examples of such discipline were that Abrams’ foreman and worker (in the trench) were suspended for a week without pay following the OSHA inspection. Such post-inspection discipline alone is not sufficient, and no further evidence was submitted of any discipline or enforcement action as a result of its discovery of violations at a worksite.

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Secretary of Labor v. Huen Electric, Inc. demonstrates the need for construction workers to be properly trained and competent when operating a powered industrial truck (“PIT”) such as forklifts, lift trucks, stacker trucks/pallet stackers, etc. Some of these PITS have a cabin for the operator, while in others the operator walks and controls from behind. On September 30, 2019, Huen Electric, Inc. (“Huen”) an electrical contractor was removing an electrical splice box from a vault approximately three feet below the floor of the Chicago Museum of Science and Industry. Huen’s foreman used a stacker truck he had borrowed from the museum to lift the splice box. During the process the splice box and stacker truck fell in the vault pinning one of the other workers and leading to serious injury.

As a result of the incident, OSHA cited Huen for two violations¹, although we shall limit our discussion to the violation pertaining to the lack of adequate training. According to the Citation, Huen had not ensured that the PIT operator was competent to operate the PIT, here a Toyota 6BWC15 Electric Counter Balanced Stacker Truck, by the successful completion of training and evaluation as specified in the regulation including but not limited to formal instruction, practical training and evaluation of the operator’s performance thereby exposing employees to struck by and crushing hazards.

Huen had been hired to upgrade the electrical system to the museum which required the removal of splice boxes located below the floor of the museum. Huen’s crew had previously removed four splice boxes by removing two-foot by three-foot concrete floor panels initially by hand and then by using a rented pallet stacker/forklift operated by the foreman to remove the covers from the vault. Once the covers were removed, the crew wrapped straps around splice boxes and removed them from the vaults using the rented forklift. The underlying incident occurred when Huen’s crew attempted to remove the largest splice box. Although the foreman and the crew were to use the same process as they had to remove the four prior splice boxes, there were some substantial differences with the operation starting with the fact that they did not have their rental stacker available and asked to and obtained permission from the museum to use its Toyota stacker truck (“stacker truck”), which is a hand-operated truck with an electric motor. Moreover, given that there was very limited space for maneuvering and the large size of the splice box, the foreman and crew engaged in significant planning for this removal, and he also reviewed the stacker truck’s manual for about an hour. They would also use straps wrapped around the splice box and then loop around the forks to raise it up from the vault. As the foreman attempted to raise the box from above the threshold, he briefly paused before releasing the parking brake by pressing down on the handle. At that point, the stacker truck did not appear unstable. The foreman then rotated the throttle to move the stacker truck away from the vault when he felt it move forward, towards the vault pit, tumbling into the vault and causing serious injuries to a crew member.

The foreman had approximately 30 years’ experience operating PITs and had no prior accidents until the subject incident. In each of his many jobs he had received some form of formal training mostly on forklifts where the operator sits in a cab. He had also received training on “walk-behind” stacker trucks in a previous job. The foreman’s prior work history and training were recapped but it also became evident during testimony that he had not received recent training on stacker trucks/pallet stackers in the past seven years from his last employer, nor current employer, Huen. Although Huen, through counsel attempted to emphasize the similarities between forklifts and pallet stackers, during the foreman’s testimony, he admitted that the “biggest difference” was the steering, braking and throttle. The foreman spent about an hour reviewing the operator’s manual on the Friday prior to the lift but had never previously operated the Toyota pallet stacker, although he had maneuvered it from the second floor of the museum down to the location of the splice box.

To prove a violation, the Secretary of Labor (SOL) must show by a preponderance of the evidence 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.

Here, the PIT standard which “contains safety requirements relating to fire protection, design, maintenance and use of fork truck, tractors, platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by electric motors or internal combustion engines” clearly applied to the pallet stacker at issue. As to the second element, the Secretary of Labor claimed that Huen had failed to provide the foreman with training specific to this walk-behind stacker truck and had thus failed to ensure that he was a competent operator. Huen, countered with the foreman’s extensive history to show that the standard was not violated. However, the ALJ agreed with the Secretary since it found that Huen failed to provide training compliant with the standard or otherwise evaluate that its foreman was competent to operate this stacker truck. Irrespective of “whether the training is an employee’s initial training on a PIT or refresher training on a related yet different, PIT, such training must meet certain minimum requirements, including a combination of: (1) formal instruction such as lecture, discussion…written material; (2) practical training… and (3) an evaluation of the trainee’s performance in the workplace.” The standards provide who may provide the training, when additional training is necessary and requires the employer to certify that the operator is trained and evaluated. Here, the foreman’s own testimony indicated he did not have formal or practical training on stacker trucks and Huen had an obligation to ensure that he was in fact competent to operate the pallet stacker safely.

Although Huen provided Class IV Forklift training it had an obligation to provide training where forklifts and pallet stackers differed such as those that related to throttle, steering and braking and there was no evidence that Huen provided same ether as an initial or refresher training. The ALJ also clarified that an employer need not duplicate training already received by the operator in a prior training program but rather offer additional training based on the differences between the two PITs.

The ALJ found Huen’s employees were exposed to a hazard because they were working in proximity to the foreman who had not been properly trained and in fact one employee was seriously injured. Given that Huen had rented a different model stacker truck for the four previous lifts over the past six months, the ALJ found it reasonable to infer that Heuen was aware that the foreman was using stacker trucks on multiple occasions and therefore was aware of its obligations to train and evaluate him. A penalty of $11,934 was assessed for this violation.

¹ Violation # 2 pertained to modifications or additions to the stacker truck by use of the lifting straps, which were dismissed.

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Secretary of Labor v. TNT Crane and Rigging, Inc. demonstrates how companies must maintain work safety rules that not only specifically address the requirements of applicable OSHA safety rules and standards but that they also take measures to ensure adequate compliance. TNT Crane and Rigging, Inc. (“TNT”) is a crane service provider from Houston, Texas with more than 250 employees and numerous offices. On May 15, 2016, in Georgetown, Texas, a TNT employee was seriously injured during the disassembling of a crane when it contacted a power line. As a result of the incident, OSHA cited TNT for two violations of OSHA’s Cranes and Derricks in Construction Standards. The OSHA Review Commission ultimately affirmed both violations as against TNT.

On the incident day, four TNT employees (the crane operator, a spotter/rigger (SR1), a second spotter/rigger (SR2), and a driver) were completing the disassembly of a 275-ton mobile crane which had been used to install new antennas on a communication tower. All four employees met to discuss a plan for disassembly. The crane operator (and supervisor) created a job safety analysis (JSA) before the breakdown and discussed it with the three other crew members. The plan was for the crane operator to reposition the crane to lower the boom onto the semi-truck while SR2 would spot and hold the hoist line to keep it taunt, the driver would drive the semi-truck once the boom was on the flatbed and SR1 would spot and guide the truck. SR2 and the driver expressed concerns over the exact location due to nearby powerlines, but the crane operator reassured them it would be disassembled in the same location in which the crane was assembled and that there would be a 20 feet buffer zone from the power line. Therefore, the powerlines would be avoided. Nevertheless, as the crane operator was lowering the boom of the crane and retracting the hoist line, the load line came into contact with a powerline. SR2 who was holding the load line was electrocuted and sustained severe burns and other injuries.

After the incident, an OSHA Compliance Safety and Health Officer investigated. Although the officer was unable to inspect the original jobsite, the officer conducted interviews offsite with witnesses and took photos to recreate the scene. OSHA issued two citations: Violation # 1 – Exposure of employees to the hazard of electrical shock by failing to use at least one of the measures required to prevent encroachment or contact with power lines while disassembling a crane; Violation # 2 – Placing part of a crane and load, whether partially or fully assembled, closer than the minimum approach distance (MAD) to a power line.

To prove a violation, the Secretary of Labor (SOL) must show by a preponderance of the evidence 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. The cited safety standards clearly applied to the work that was being conducted at the time of the incident and that there was noncompliance and exposure to the hazardous condition. The issue that the Commission addressed in its most recent decision was whether TNT had knowledge of the violative condition, which it determined that it did.

Both violations rested upon the Commission’s reasoning that the violative conduct was collaborative here. It was not just the crane operator’s activities but the activities of the entire crew, collectively. As for Violation # 1, there was no dispute that TNT crew disassembled the crane without a required protective measure in place to prevent encroachment before disassembly began. Similarly, Violation # 2 involved the crew’s collective failure to maintain the required clearance during disassembly. Prior to disassembly, the crew conducted a JSA together and then met as group to discuss the work prior to commencement. Although two of the crew members expressed concerns, they were reassured by the other two crew members and all agreed to proceed. Therefore, the crane operator/supervisor’s knowledge of the other crew members’ violative conduct could be imputed to TNT, as is consistent with the relevant precedent.

TNT’s defense before the Commission was that the crane operator engaged in unpreventable employee misconduct (“UEM”). To succeed on that defense, TNT must show that it had established work rules to prevent violative conditions from occurring, adequately communicated those rules to its employees, took steps to discover violations of those rules, and effectively enforced the rules when violations were discovered. The Commission found that TNT failed to establish work rules that were specific enough to ensure the violative conditions from occurring.

As to Violation # 1, although TNT’s work rule shared some similarities with the OSHA standard, it did not provide the specific requirements mandating that an employer implement an encroachment prevention measure prior to crane disassembly to ensure that a 20-foot distance from power line is maintained when any part of the crane could breach that distance. TNT’s safety policy only mentioned one of the applicable provision’s numerous encroachment prevention measures.

As to Violation # 2, the Commission found that TNT did have work rules in place that addressed the requirement of the applicable standard and it properly communicated those rules to its employees through various trainings, safety programs/manuals, orientations, etc. However, TNT failed to sufficiently monitor compliance of those rules and effectively enforce them when violations were discovered and therefore could not establish a UEM defense. TNT claimed it monitored compliance through inspections and surprise audits by submitting inspection documentation that included safety checklists. Yet, this particular site was never inspected nor audited. TNT’s practices and the submitted documentation were insufficient as no one from TNT could provide details on how often worksites were generally inspected/audited, what kinds of sites were inspected, etc. TNT’s submitted documentation showed no evidence as to the effectiveness of their monitoring/auditing plan, except that one existed on paper. Lastly, TNT failed to establish they effectively enforced the rules when violations were discovered. Although the crane operator in this instance was discharged, TNT could not offer any other evidence of prior disciplinary action of an employee for violating powerline safety rules, which beggars belief given the size of the company. The fact that the crane operator and the rest of the crew collectively were involved in violative conduct actually was evidence of TNT’s lax enforcement of these rules.

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