During loading and stacking operations, coordination between the operators of powered industrial vehicles and their spotters is necessary in cases of instability hazards to avoid serious injury and/or death. Moreover, the operators of heavy machinery must not only have the requisite training and experience but also hold required certifications.  The recent decision in Secretary of Labor v. C&S Technical Resources, Inc. is instructive on these issues, and unfortunately arose as a result of a work-place fatality. 

C&S Technical Resources, Inc. (“C&S”) had been contracted by National Grid, to torch-cut steel transmission poles that had been decommissioned, and then load these cut pole segments onto flatbed trailers, operated by a scrap metal company for transport.  These operations were conducted at a storage yard in Liverpool, New York.   The pole segments weighed between 4,000 and 8,000 lbs.  C&S had two employees performing this contracted work.  C&S’s foreman operated a JCB all-terrain forklift (“telehandler”) while the decedent performed the spotting function (the “Operator” and “Spotter”, respectively.)  The Operator had received formal training in the operation of powered industrial trucks (“PITS”) in 2000 and had decades of experience operating PITS.  However, C&S did not maintain any written certification that the Operator’s performance in operating PITs had been evaluated within the past three preceding years nor did it have any record of such evaluation being conducted.  

C&S began working on October 22, 2020.  Before commencing operations, C&S’s health and safety manager held a pre-job meeting with the Operator and Spotter with a plan for loading the flatbed trailers by placing four pole segments, side-by-side and end-to-end on the flatbed, with no stacking.  No other loading methods were discussed.  However, prior to their work, the Operator asked the driver of the semi-truck that would transport the poles how they wanted the pole segments loaded on the flatbed.  The driver asked that six pole segments be loaded onto the flatbed, rather than four, in two triangular stacks of three pole segments, with the one stack occupying the front half of the flatbed and the second stack occupying the back half.  The Operator and Spotter thus proceeded in this manner.  They did not physically secure the pole segments on the flatbed as the Operator believed that the straight side of baseplates at the end of each segment would prevent their movement on the flatbed. 

They had been working for 10 days when the accident occurred, on November 5, 2020.  The first stack had been loaded onto the front half of the flatbed and the accident occurred while they were loading the rear stack.  The Operator’s view of the landing area was blocked, so the Spotter climbed onto the flatbed and stood next to the front stack so that he could hand signal to the Operator in unloading the top third-pole segment on the back half.  As the Operator positioned the telehandler’s fork holding the third pole segment, the Spotter was standing on the left side of the flatbed, at the mid-point of the front stack and was about ten feet from the nearest point of the pole segment that was being unloaded, and about eighteen feet from the nearest part of the telehandler. As the third-pole rolled off the fork and dropped two inches onto the two pole segments below, the force caused both stacks to roll off. The front left bottom pole fell off the left side of the flatbed and knocked the Spotter off the flatbed to the ground.  The top pole from the front stack then fell from the flatbed, striking and tragically killing the Spotter. 

Following the accident, OSHA investigated and issued a Citation with two Items.  Item 1 alleged violation of the general duty clause, which requires employers to furnish a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.”  The Item alleged that the Spotter was standing in the danger zone of the forklift’s stacking operations when struck by multiple sections when the stack collapsed, and, cited to the telehandler’s manual which defined a zone of danger as “any zone within and/or around the machinery in which a person is subject to their health or safety” including the area “into which debris…could be projected…or fall from the machine…” The Administrative Law Judge (the “ALJ”) indicated that this Item “hinges” on whether it was more likely than not that the evidence showed that the Spotter’s position next to the front stack while there were on-gong loading operations toward rear stack constituted an industry recognized hazard so that the Spotter was in fact in the “in the danger zone of the stacking operations”.  

Testimony was elicited, including from C&S’s construction safety expert who testified that in the “common industry practice” the forklift’s danger zone is typically ten feet from the machine, and therefore the Spotter in this instance was outside the zone of danger of the telehandler’s operations. The zone of danger was assessed by looking at the risk of the Spotter being struck by the “telehandler, its load, or material falling from any attachment or working tool such as the fork”, and there was no evidence of that here.  Thus, the ALJ found that evidence was insufficient, and vacated this Item.  

However, the second Item of the Citation was affirmed. Specific safety regulations require that “an evaluation of each powered industrial truck operator’s performance shall be conducted at least once every three years”.  Here, the evidence clearly showed that C&S had failed to certify that this required evaluation was performed by the Operator.  Compliance with this certification requirement bears a direct relationship to safety and heightened the risk of serious injury or death in the operation of a PIT by an operator who was no longer qualified.   

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Road paving operations are a dynamic work-site with the constant movement of heavy equipment and workers on-foot that can very easily lead to struck-by hazards if workers are placed in the “zone of danger”. To minimize such risks and injuries, employers must maintain proper safety protocols such as internal traffic control plans and training as well as coordinate with other trades/suppliers on-site during on-going operations as shown in the decision in Secretary of Labor v. Master Construction Co. Inc.

Master Construction Co. Inc (“MCC”) was expanding and repaving a portion of roadway in North Dakota from a two-lane to a four-lane roadway. The roadbed was bounded on either side by a dirt field. MCC utilized machines to pour and smooth the concrete, constantly moving forward as the road is being poured, while the mixed concrete supplier, Aggregate Industries (“Aggregate”) delivered 100 loads of concrete once every six minutes. The placer, operated by a MCC employee, collected the concrete delivered by the trucks into the hopper. A conveyor then delivered the concrete from the hopper to a chute that spread the concrete over the roadbed. A paver travelled behind the placer to smooth and form the concrete into lanes. A cure-cart traveled behind these machines applying a compound so that the concrete dried according to specifications. Once the operation reaches the end of the designated street, they would turn around and back-up to the hopper on the placer machine. An MCC employee known as a chute man guided the Aggregate driver back to the placer where the driver could then lower the chute of the truck and unload concrete into the hopper. Upon completion of delivery, the chute man would notify that driver to pull forward and move over to the right to avoid the next truck in line. A convoy of Aggregate trucks could be lined to back-up to the hopper. Besides the chute man, most of MCC’s employees worked behind the placer and paver, which acted as barrier between them and the incoming trucks. According to MCC’s superintendent, Arthur Cofell (“Cofell”) the staging area for their operations as well as the employees’ cars were parked in a location where they would eventually end for the day. However, the Aggregate trucks entered and exited the worksite from this area. This layout also required MCC’s employees on occasion to walk in the area where the trucks were entering/exiting.

On October 4th, 2017, an Aggregate truck driven by Keith Nelson (“Nelson”) had finished unloading concrete and was directed by the chute man to move and make room for the next truck in line. Nelson proceeded to pull forward and to the right side of the gravel roadbed to avoid the next driver who was backing-up, and after traveling about 50 feet stopped the truck to pin-up his chute. At that point, he learned he had struck an MCC employee who sustained fractures to his legs. According to the injured employee, he had walked past the passenger side of Nelson’s truck with about 4 to 7 feet of space between them. As the employee had passed the truck, the truck pulled forward and to the right striking him. OSHA investigated the incident, conducting interviews and obtaining documents and information. Although workers typically walked in the dirt field adjacent to the gravel roadbed to go back to the staging area, in this instance, they walked along the gravel because the dirt field was muddy (and thus put them in path of the trucks). The Aggregate drivers were unaware that personnel would be walking through the roadbed area. OSHA issued a Citation against MCC for violating the “general duty clause” which provides than an employer must furnish its employees with a place of employment free form recognized hazards that were causing or likely to cause death or serious injury given their exposure to strike-by hazards. The Citation noted among other feasible methods of abatement, the development of a comprehensive work site traffic control plan to address strike-by hazards for personnel.

MCC trained its employees on the struck-by hazards by annual seminars and weekly tool-box talks, while it also had policies governing collisions between heavy mobile equipment and pedestrians including warnings and directives such as avoiding standing or walking in travel paths. However, MCC did not have “specific, documented rules” for personnel and truck traffic within a construction zone. Here, Aggregate drivers were only given basic instructions upon entering the worksite. Moreover, Cofell had only discussed with Aggregate’s representative safe operating speeds within the worksite and where they should enter and turn around. Cofell testified at the hearing that he had never implemented an Internal Traffic Control Plan (“ITCP”) at any worksite. MCC admitted that that employees would cross into the truck’s area of operations, although infrequently. Cofell also admitted that he instructed the injured employee to travel through the area to get a barrel of cure for their operations when he was struck by the truck.

The Administrative Law Judge (“ALJ”) affirmed the Citation against MCC as it failed to have a specific ITCP for this worksite, failed to implement plans to prevent operations where workers would be in the path of the truck convoy and failed to coordinate its efforts with Aggregate by providing it with copies of its safety polices or including the drivers in daily safety briefing. The Secretary’s expert identified multiple streps to address hazards on multi-employer worksites, which included performing a task hazard analysis; communicating the identified hazards to both employees and contractors; developing plans separating pedestrians from heavy equipment and performing inspections to ensure compliance; maintaining close supervision of high-risk work, creating a written ITCP; and develop truck-specific safety rules.

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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.

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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.

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