Various materials are used in construction activities including those deemed hazardous to human health. Therefore, companies must ensure that they have an adequate and updated written hazard communication program in place consisting of multiple components. Safety Data Sheets (SDS) must be present on-site detailing information about each chemical, along with safety procedures and emergency procedures for potential and improper exposure. Employers must maintain an up-to-date inventory of hazardous chemicals at the site and ensure the proper labeling of all containers of hazardous materials with the relevant hazard warnings. Also, regular employee training must be provided to understand these labels and the SDS sheets and educate employees on the safe use of these hazardous chemicals.

The decision in Secretary of Labor v. Finley, LLC, however, indicates that proper hazard communications should be provided for those materials that are reasonably anticipated to be used by the workers. This matter arose from an anonymous complaint called into to OSHA regarding unsafe trenches at a worksite in Denver, Colorado in March 2020. Finley, LLC (Finley) was an earthmoving and excavating contractor based in Bailey Colorado with about five full-time employees, including its owner Jason Finley, a supervisor, and some laborers. Katerra Construction, the general contractor for the construction of a residential complex in Denver Colorado had retained Finley for certain excavation work at the site. Finley, which had been working at the site for about nine weeks at the time of the OSHA inspection, had excavated multiple trenches, including one for plumbing for lines that would ultimately supply the apartment complex. The trench at issue was approximately 160 feet long, 18 feet across, and varied in depth from 6 feet to 10 feet.

Alerted by the anonymous complaint, OSHA sent a Compliance Safety and Health Officer to the site, and after an investigation, issued multiple citations to Finley. These included a failure to develop or implement a hazard communication program in that its employees were potentially exposed to hazardous chemicals, inclusive of certain pipe adhesives, and that employees were not provided with effective information and training on hazardous chemicals in the their work area at the time of their initial assignment or whenever a new hazard that employees had not previously training about was introduced at the job site. Also, Finley did not have a copy of its hazard communication program on-site as required at the time of inspection, nor did it provide its employees with either chemical or site-specific training as required in the applicable safety standards.

During OSHA’s inspection, water was observed in the trench, extending across about 90% of its length. Although there was conflicting evidence as to the source of the water-that it was either coming from groundwater at the bottom and sides of the excavation or from piping that was being tested as it was being connected by other Katerra employees- it was undisputed that the presence of the water changed the soil classification in the trench and it increased the risk of collapse as well as presented a possible slip-and-fall hazard. The presence of water in the trench should have required a re-evaluation of the type of sloping that was being implemented at the site and the need to take additional precautions. Based on the submitted evidence, the citations for improper trenching and excavation were upheld against Finley by the Administrative Law Judge (ALJ).

However, the ALJ found that the Secretary of Labor failed to prove their case as against Finley for the citations arising from a failure to develop or implement a hazard communication program and to provide its employees with effective information and training on these hazardous chemicals. Although Finley only had a generic hazard communication program, which was only presented at the time of trial-and which did not actually address Finley’s specific business of excavation and earthmoving, Finley denied that their employees assisted plumbers connect piping at the bottom of the trench. At best, Finley employees might have been present in the trench while Katerra’s plumbers were connecting and sealing pipe with certain pipe adhesives, but Finley did not perform any plumbing work. Further, Mr. Finley testified that his company only installed drainage pipes, which did not require the use of any adhesives. The ALJ found that there was no reason to provide independent training on hazards not reasonably anticipated to be used by Finley’s employees. Finley employees had received training and information as provided by Katerra at the site that the ALJ found appropriate for the hazards presented by working adjacent to other workers who were required to use such chemicals. During the trial, the Secretary of Labor attempted to amend this citation to include gasoline for Finley’s vehicles and battery acid present in those vehicles as potential exposures for which Finley had failed to maintain respective SDS sheets. The ALJ found these attempts improper as gasoline did not present “a greater hazard to a trench digger than a stay-at-home day filling up for a soccer practice, or to battery acid, for which there was absolutely no evidence of exposure.”

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Many motor vehicles including those in the construction industry are equipped with rear-view cameras, but older vehicles may not have them. The perils posed by vehicles reversing during construction operations with obstructed views are quite evident, and OSHA has in place specific rules to protect workers. For example, a vehicle operating within an off-highway jobsite (closed to public traffic) is required to have either a reverse signal alarm above the surrounding noise level or require the presence of an observer to signal to the driver that it is safe to reverse. However, companies operating in the winter must recognize that drivers likely have their cabin windows closed and, therefore, may not hear whether a reverse signal alarm is in fact audible over the surrounding noise level so as to warn a worker of the reversing vehicle’s path. Moreover, ice can form over a reverse alarm’s speakers to muffle or render the reverse alarm inoperable, presenting a danger.

These concerns and issues were the subject of the decision in Secretary of Labor v. Moorhead Bros., Inc. arising from a January 2014 workplace incident in which a truck while backing-up on a two-lane rural road in London, Ohio, struck and tragically killed an employee who was working. Respondent, Moorhead Brothers, Inc. was a site-clearing contractor specializing in right of way clearing for utility easements. An electric utility had contracted with MBI to clear a 40-mile right of way for the erection of new transmission lines. An MBI crew went to the location on Simpson Road that was going to serve as a staging area for MBI’s heavy equipment. Simpson Road is a two-mile long, two-lane paved road. A four-man crew was tasked among other items to place used tires on the side of road, so that they are laid down over the road for tracked vehicles to drive over, without damaging the pavement. The four-man crew consisted of a foreman, and three laborers. A 2002 flatbed straight truck with a knuckle-boom crane arrived at the site loaded with 10 timber mats on its flatbed. Each timber mat is about 16 feet long, four feet wide and eight inches high and is placed over ditches so that heavy equipment can drive over those ditches.

As required by MBI, the driver of the truck conducted a pre-trip inspection of the vehicle and noted no issues. The driver reached the site, and the foreman instructed him to drive the truck to the location on the side of the road where the tires had been placed. The foreman and a laborer were on foot near the truck. Flaggers about 300 feet from the Truck, subsequently closed the road for the off-loading. The flaggers, foreman and driver could communicate with each other by two-way radio. As the driver had begun off-loading the mats, the project manager appeared and advised him that adjacent property owner wanted MBI to access his property about 50 yards behind where the truck was currently stopped so that he would have to back-up “a little”.

The foreman instructed the driver of the new location and when the driver last saw the foreman, he was in front and to the right of the truck, picking-up tires. The driver had an obstructed view to the rear. The temperature was 40 degrees without precipitation, but the windows of the cab were closed. No further activity was on-going to produce any noise. No one acted as a spotter for the driver to reverse nor did the driver believe one was needed. He looked through his side mirror and did not observe anyone, and then proceeded to reverse. After traveling about 25 feet, he unknowingly struck the foreman who had walked over to the roadway to move loose tires. The foreman died.

The State Trooper who arrived on the scene interviewed the driver, asking him if the truck had an audible warning when it reversed. The driver explained that it did, but noted that sometimes it did not work. However, the driver never said that the warning was not working on that day. Another State Trooper with Highway Patrol also inspected the truck that day and found that the reverse alarm signal was operable. MBI’s own Safety Manager tested the truck that day and the following, finding it operable on both occasions. OSHA subsequently investigated. The driver was interviewed and explained although he did not remember if he heard the alarm on the day of the incident, he never said that it had not been working on that day. The OSHA officer also inspected the truck and was only able to hear a very faint sound, which it was determined was due to low temperatures (17 degrees). Ice had formed over the alarm’s speaker so that it could not vibrate and emit noise. The Safety Manager replaced it immediately. After concluding its investigation, OSHA issued a citation against MBI for failing to either have an operable reverse alarm or spotter. However, based on the evidence including the trooper’s investigation and the two subsequent tests by the MBI’s Safety Manager, the judge found that it was more likely than not that the reverse alarm signal was working, and vacated the Citation.

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Construction companies must maintain frequent inspections to ensure the safety of their workers. The recent decision in Secretary of Labor v. Avadek, Inc. shows however, that even when an employer does have a good and detailed inspection program, bad things can still occur. In this case, a foreman tragically plunged to his death in an incident while conducting work on an aluminum canopy.

Avadek Inc. was hired by a general contractor to install an aluminum tube canopy in an event center in Bryan, Texas. The job required two crews, an installation crew and a quality control crew that ensured compliance with specifications and plans. Over the course of a month in September 2022, Avadek’s installation crew installed the canopy. Beginning in October 19, 2022, Avadek’s quality control crew began their assignment to remediate some errors. The QC crew was managed by Jose Ledesma and consisted of the foreman, and two other workers. On that day, Mr. Ledesma and the foreman visited the site and discussed the necessary remediation work, which also required the use of aerial lift to working on the canopy. Their discussion and walk-around lasted about 10 to 15 minutes. Mr. Ledesma reminded the foreman that the use of the areal lift was the approved method for this particular work, and that Avadek’s fall protection policy required workers to be tied-off while in the lift. Although the foreman pointed to Mr. Ledesma that other contractors on-site were utilizing their own aerial lifts without tie-offs, Mr. Ledesma told him to disregard to the contractors’ actions and to be tied-off. The aerial lift was delivered later that day. Mr. Ledesma saw the foreman again the following day at Avadek’s Houston office, where he was gathering tools and had no further interactions with this particular job site or the foreman before the incident on October 21, 2022.. After the incident, a third-party site safety company conducted an investigation and issued a report that noted apparent contributing factors, which included that the foreman had stood on certain trellis tubes as he unbolted the tubes to re-align which created an unstable system. Moreover, the fall protection system in use had multiple deficiencies including that the wire rope, a 3/8’cable, measured 55 feet in length when the fall distance was approximately 25 feet; the 3/8’s cable equipment was improperly anchored and installed. Lastly, the foreman should have not been working on the canopy roof to perform the work but rather should have utilized the aerial boom lift to access the canopy and perform the work.

Following the incident, OSHA was notified and conducted an investigation, which included visiting the site and interviewing certain individuals although none of the interviews were recorded and there appeared to be inconsistencies during the interview process. Nonetheless, OSHA issued citations against Avadek for failing to initiate and maintain accident prevention programs including frequent and regular inspections by competent persons designated by employers.

Avadek submitted three documents that were consistent with each other – its Site Safety Plan, its Safety Manual, and the Employee Safety Handbook. All these documents discussed safety inspections with regards to fall protection equipment and required regular and frequent inspections whenever conditions change and if hazards were found the Safety Director or a delegate must eliminate them or provide employees with proper protection from them. Avadek’s Site Safety Plan provided a specific list of instructions for fall protection including that fall protection equipment will be inspected prior to each use, with proper documentation, and in accordance with manufacturer’s guidelines. Manager Ledesma and Avadek’s Safety Coordinator Jorge Longoria testified during the hearing and confirmed that daily inspections of the jobsite would be conducted prior to beginning work given that there could be changes to conditions from the previous day. Moreover, Juan Mata, Avadek’s Safety Coordinator Manger, testified that the competent person on behalf of the company, here the foreman, was responsible to conduct a three-phase inspection consisting of a workplace inspection, a visual inspection, and a functional inspection of any equipment. All of Avadek’s witnesses’ testimony was consistent with its written safety protocols regarding daily inspections and that the foreman was responsible for conducting them as the designated competent person. Avadek further submitted evidence of its periodic safety audit inspections and job hazard analysis inspections. Its employees received fall protection training including a portion their initial safety orientation, as well as periodic refreshers and specific safety training such as aerial lift training, OSHA 10s and first aid. Avadek also submitted proof of disciplining employees for safety rule violations including for fall protection violations at different jobsites prior to the underlying incident.

Here, based on the submitted evidence and testimony, the Administrative Law Judge found that the Secretary of Labor had not met their burden of proof that the cited safety standards were violated, and they were not able to show that the foreman’s actions were foreseeable. The safety standard requires an employer to initiate and maintain a program of frequent and regular inspections that are meant to “keep track of safety hazards at the site” and “to keep abreast of the pace of work”. The evidence submitted showed that Avadek had met its duty to initiate and maintain a safety program with frequent and regular inspections. The foreman has been designated as a competent person at this site “one who is capable of identifying existing and predictable hazards in the surrounding or working conditions…and has authorization to take prompt corrective measures to eliminate them.” Here, the foreman had authority to recognize hazards to fix them on-site even if he had supervisors above him in the chain of command. The Secretary failed to produce affirmative evidence of the foreman’s action indicating that Avadek had any knowledge of the violative condition except after the incident itself with receipt of the Incident report.

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