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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Construction companies using heavy equipment and machinery must recognize the hazards of stored energy when repairing or maintaining that equipment, and that the unexpected start-up or release of that stored energy can easily result in serious injuries including electrocution, the crushing or amputation of body parts and even death. To prevent these life-altering and mortal injuries, companies must have proper Lockout/Tagout (“LOTO”) procedures in place that are followed.

The recent decision in Secretary of Labor v. Commercial Metals Company arising from a tragic work-place accident, illustrates the need and adherence to LOTO procedures. Commercial Metals Company (“CMC”) is a national re-bar manufacturer with a rolling mill facility in Sayreville, New Jersey (the “Rolling Mill”). On May 30, 2022, an employee was adjusting a stand jack located behind a mill stand at Rolling Mill when the machine energized unexpectedly, pulling him into the machine’s spindles leading to his death.

At the time of the fatal incident, Herny Hernandez was the Rolling Mill’s Shift Supervisor and had worked for CMC for 10 years and had just been promoted to the Shift Supervisor position in the previous month. Mr. Hernandez was responsible for the safety of his crew, known as the C-crew. The C-crew was responsible for the Rolling Mill’s production operation and typically consisted of 14 employees. Mr. Hernandez supervised his crew and had authority to discipline employees. At the time of the subject incident, Mr. Hernandez was working with three other employees, AC (the decedent), CC, and PH at Mill Stand # 7. AR held the Assistant Roller position and had worked for CMC for about 27 years. The Assistant Roller is responsible for ensuring the integrity of the rebar going through the factory’s 14 mill stands and that the finished product is free from defects. AR had, in fact, trained Mr. Hernandez when he began working for CMC and they had worked together for at least seven years. CC and PH were Mill technicians who were directed by the Assistant Roller, but both the Assistant Roller and Mill Technicians reported to the Supervisor Hernandez. CMC’s LOTO policy included three different written policies: 1) Lockout/Tagout – Energy Control Program (the “LOTO Program”); 2) Lock Out of Mill Stands for Operating Personnel (the “Mill-Stand-Lock Out Procedure”) and 3) Tightening Stand Jacks After Pass Changes (“Tightening Stand Jacks Procedure”).

CMC’s LOTO Program included definitions (such as “authorized” and “affected employees”) as well as training and requirements that paralleled OSHA’s own LOTO standards. For example, CMC’s LOTO Program required that “authorized employees who locked out the equipment were responsible for notifying all of the ‘affected employees’ when their machine is locked out”. Prior to starting work on equipment or machinery, to “‘start’ or ‘run’ or other operating control, to be sure that all energy has been isolated from the machine…that it will not operate.” Training and periodic reviews were conducted to ensure that the LOTO Program was followed. The Mill Stand Lock Out Procedure provided instructions for necessary tools and safety equipment, warnings and steps for the lockout of a mill stand with photographs depicting the location of the lockout switches and examples when the switch was locked out. The processes and steps were discussed in detail regarding the lock-out of the mill stand, which included the notification of relevant employees as well as the turning off and locking out of a specific mill stand’s switch, a butterfly switch, and the placement of a blue equipment key lock on it. The switch must be turned to the “off” position before placing the blue lock. Each authorized employee also carries a red personal key lock and that employee then places the blue equipment lock in a lock box which is locked with that red key lock. The authorized employee keeps the red personal key lock on his person to prevent anyone from opening the lockbox to obtain the blue equipment key to unlock and re-energize the mill stand. The next steps involve notifying the pulpit operator (who sits in a room about 15 feet from the mill floor and controls the speeds of the mill stand’s spindles) to start up the mill stand so as to ensure it will not start. The Rolling Mill also had Stand Lights, a series of lights behind the mill stand to indicate whether it is locked out but Mr. Hernandez admitted he did not know which color indicated that the machine was locked out and that he did not look at the Stand Light’s colors often.

On May 30, 2022, AR moved to the back of Mill Stand #7, to adjust the mill stand jacks given that it had been observed that a bit (a smaller piece of steel bar) was not properly sized as it was run through the mill stand about two or three minutes, prior. Mr. Hernandez spoke to AR as he moved to the back of the mill stand. Mr. Hernandez did not see AR follow CMC’s lockout procedures nor did not hear AR notify anyone he was going to lockout the mill stand or ask the pulpit operator to “try-out” or start the machine to see if it was safe to proceed. AR did not follow CMC’s LOTO procedures in plain view of Supervisor Hernandez. As AR was adjusting the stand jacks, the pulpit operator turned the Mill Stand #7 back on, which caused AR to be pulled in between the spindles of the machine. OSHA investigated and issued multiple citations to CMC which included that CMC’s procedures were not utilized and followed in making adjustments to the jack of Stand #7. Here, four employees, Supervisor Hernandez, AR, and Mill Technicians, CC and PH were working in the zone of danger, the back of the mill stand, and were at risk of exposure of unexpected energization, which is what happened here. CMC’s detailed policies were not followed by AR and these violations were in plain view of Supervisor Hernandez whose failure to take action and verify that CMC’s LOTO policies were followed disclosed “negligent, inadequate supervision and a lack of reasonable diligence” and the Citations were upheld, against CMC.

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The realities and complexities of modern-day construction make it likely that a contractor will utilize subcontractors to perform a portion of those activities and their scope of work. However, up-stream contractors, and specifically general contractors must understand that in the realm of OSHA enforcement and OSHA violations, under the multi-employer worksite doctrine, they can in fact be cited for violations of safety rules and regulations from the work performed by employees of their subcontractors, and the decision of Secretary of Labor v. Preferred Roofing, LLC is illustrative.

Preferred Roofing LLC (“Preferred”) is a construction company that operates in the Jacksonville, Florida area. Preferred performed commercial, residential and specialty roofing, employing between six and seven people that included two repair technicians and administrative staff. Preferred utilized subcontractors to perform all other roofing jobs. Preferred’ s Vice President, James Snead (“Snead”) testified that Preferred does not directly supervise the work of its subcontractors if the subcontractor has its own on-site supervision. Snead would visit jobsites to ensure compliance by subcontractors as to the terms of the contract that would also include compliance with safety standards. If Snead had concerns, he would conduct additional spot-checks and he had authority to stop work and correct observed unsafe conditions. Snead would raise issues with the on-site crew or with the subcontractor’s site supervisor.

Preferred had subcontracted with Valor Roofing Company (“Valor”) to perform certain roofing jobs. Prior to entering into the subcontracts, Snead and Preferred’s chief of operations met with Valor’s owner to discuss the subcontracts’ terms as well as certain issues that Preferred had with prior subcontractors complying with safety standards and cleanups. The contract between Preferred and Valor required Valor to comply with “all statutory and contractual safety requirements”, provide its employees with all safety training and safety equipment and required it to notify Preferred with notice of an on-the-job injury. Pursuant to the contract, Preferred retained oversight of the job and required Valor to provide Preferred access to the job site and written progress reports, if necessary. Valor was prohibited from erecting any signs displaying its name on the job.

Within two weeks of Valor’s work, Snead visited two job sites for which Preferred had subcontracted with Valor. At one site, Snead found a person without fall protection and notified Valor’s owner and on-site supervisor who remediated the issue. At the second site, Valor was complying with all safety procedures.

Preferred had contracted with a home-owner to reroof a single-story home in Jacksonville and Valor had been assigned to perform the work which was scheduled to take one day. The roof pitch measured 5:12 and the lower eave was nine feet above ground. On July 18, 2023, OSHA’s Compliance Safety and Health Officer (“CSHO”) Diane Cuyler was driving and observed several men working without fall protection. She conducted an inspection which revealed that three roofers were working a 10- to 25-foot-high roof with the 5:12 pitch that were not utilizing any form of fall protection. CSHO Cuyler learned that Valor was a subcontractor for Preferred. At the site, she spoke to one of the workers and asked for his supervisor and she was directed to Preferred employee, James Taylor. Taylor initially said he was the supervisor and called his supervisor, Snead. However, Valor’s part owner and on-site supervisor, Jarren Stevens, returned to the site and indicated that he had just left the site and had left Taylor in charge. Afterwards, CSHO Cuyler met with Snead and Taylor. Taylor denied he was a supervisor at that time. She also met with Stevens, who indicated that he had in fact hired a third-party to perform the work. CSHO Cuyler attempted to contact his alleged third-party contractor but was unsuccessful. She subsequently issued a two-item citation to Preferred for failing to provide fall protection and for failure to properly secure a portable ladder under OSHA’s multi-employer worksite policy.

The multi-employer worksite doctrine provides that an employer owes a duty pursuant to the Occupational Safety and Health Act “not only to its own employees but to other employees at the worksite when the employer creates and/or controls the cited condition.” An employer is liable “for violations of other employers where it could be reasonably expected to prevent or detect and abate the violation due to its supervisory authority and control over the worksite”. Moreover, a general contractor is recognized as a controlling employer due to its overall supervisory capacity.

Here, Preferred provided and delivered materials necessary to perform the work while Valor provided the equipment and labor. Preferred was responsible for obtaining the permits, arranging inspections and supplying all plans and designs, and retained the right to inspect and approve the work. Although the subcontract placed responsibility on Valor for supplying safety equipment and training to its own employees, as per Snead’s testimony, Preferred still had authority to require Valor comply with their safety obligations even if it lacked its own on-site supervisor at the job. Consequently, based on Preferred’s overall control of the work and its authority to require compliance with safety requirements, Preferred was deemed the controlling employer and liable for these OSHA citations.

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Although the decision of Secretary of Labor v. Trinity Solar, LLC specifically pertains both to the use of hard hats and fall arrest systems necessary for the protection of workers this decision is another reminder of an oft-repeated theme in this series – a company’s safety program is only as good as how strictly it is complied with, and enforced. On November 23^rd 2022, employees of Trinity were installing solar panels at a residence at a residence on Kimball Terrace in Yonkers, New York when an OSHA compliance safety officer  appeared and inspected the work site  subsequently issuing two violations to Trinity for the lack of employee head protection while working below solar panels, and a repeat violation for having employees work on a roof 25 feet above ground without fall protection as the relevant safety rule provides that employees engaged in residential construction activities 6 feet or more above the lower level shall protected by guardrail systems, safety net system, or personal fall arrest system.

Trinity installs residential solar panels with thousands of employees throughout New York, New Jersey and other neighboring states. On any given day, Trinity would have 500 to 700 installers.  Trinity had a safety program that included a written safety manual, on-site audits, training and the disciplinary policy. Trinity provided safety equipment that were stored on its trucks, which included special ladders. Upon hiring, employees would receive the company safety manual which included various topics such as job hazard analysis, personal protective equipment, hand and power tools, ladders, fall protection, trenching, hand and power tools, etc.  Employees would also receive a two-page pamphlet summarizing safety rules that would include topics such as fall protection, hard hats, lifting techniques, site cleaning, etc.  Employees would also receive training during orientation through videos, PowerPoint presentations and quizzes that verify that certain training had been understood.  Trinity would also conduct safety refreshers on a quarterly basis with all employees. Trinity safety rules required employees to wear hard hats when someone was working on the roof overhead and for workers to be securely anchored with fall arrest equipment during work on a pitched roof. A supposed strict disciplinary policy was also an effect that included a mandatory 3-day unpaid suspension on the first offense which then included retraining to ensure that the employee understood, while a second offence resulted in mandatory employment termination.

Trinity ran an audit safety program, which included conducting site safety observations at work sites, stopping and correcting work, and documenting them on observation forms.   Trinity even had a safety committee that would meet monthly and include safety coordinators from all the regional offices, regional vice presidents and other representatives. During these meetings recordable and non-recordable injuries for the prior month would be reviewed and changes would be made accordingly to work rules.

On November 23^rd 2022, Trinity’s crew leader was Austin Tyler who oversaw six crew members.  The job consisted of the installation of 12 solar panels on the roof of a 2-story home with a pitch of 34°. Three members of the crew worked from the roof surface while the other three crew members and Mr. Tyler worked on the ground. At certain times, Mr. Tyler was working in the home’s basement performing certain electrical work. Although in the beginning of the workday, all employees wore personal fall arrest harnesses at some point, the three workers assigned to work from the ground took off their fall arrest harnesses. The installation of solar panels included the initial prep work that consisted of removing the shingles, and installing railings to lay the panels using pry bars, drills and hammers. Ladders were used to access the roof from the ground and each solar panel would be carried up the ladder by a crew member and then passed on to the worker on the roof. The solar panels weighed about 48 pounds. One of the roof crew members, Mr. Rivera would take the roof panel and pass it along to another roof crew member who would carry it over the roof’s peak to install. Mr. Tyler admitted that the hard hats had not been distributed and everyone was working all day, and specifically, the ground crew was, without head protection, despite work rules mandating that hard hats are to be worn when there is a danger falling objects from the roofs.

Depending on the degree of the roof’s pitch Trinity would utilize a Y strap configuration with a fixed length rope attaching to the front of the harness or a “shock pack” that attached to the back which decelerated and then stopped the fall when in use.  The OSHA inspector took photographs that showed two employees on the roof who were wearing fall arrest harnesses but a third employee, Mr. Cesar, a member of the ground crew was not, and specifically, photograph showed Mr. Cesar carrying a solar panel up the ladder stepping onto the roof and carrying it over the roof without fall protection.  Moreover, the two roof crew members that wore fall arrest harnesses were not consistently tied off. 

During testimony it also became clear that Trinity’s disciplinary policy was not strictly enforced since it would contribute to difficulty in hiring and retaining workers. Although Trinity provided evidence of disciplining the employees from of this particular incident they had no other evidence of prior discipline at job sites where audits had revealed violations of safety rules, even when records showed that specific employees had violated rules on multiple occasions.  Trinity conceded liability but contested the penalty amount of $98,216, which was ultimately reduced to $88,394.  

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As is well documented and reported, a cave-in or trench collapse can lead to serious injuries and even death. In fact, it was recently noted that over the last decade, at least 250 workers have unfortunately died from such instances¹.  Safety precautions must be taken during these activities, including the use of trench boxes and/or proper shoring, as well as the use of hard hats.   Furthermore, spoil piles must be placed at a safe distance to avoid collapsing into the trench, imperiling workers. The decision in Secretary of Labor v. Arrow Plumbing, LLC  is instructive, and should again remind construction companies engaged in excavation of the necessary steps they must take to properly protect their workers during trenching activities.  

Arrow Plumbing, LLC (“Arrow”) provided plumbing work for municipalities in Missouri.   Arrow had been previously cited by OSHA on two separate occasions (and had settled). In the first occasion, in December 2016, they were cited for improper trenching as the trench walls were not benched or sloped, no trench box was used, and spoil piles were adjacent to the edge of the trench and not held back.  During excavations, in that instance, a sewer main was struck and caused a rupture, and as the excavator operator entered the trench, the wall collapsed from the weight of the spoil piles, and tragically killed him. On the second occasion, in January 2017, OSHA inspected another site and cited Arrow for again failing to provide cave-in protection, having utilities unsupported, and failing to keep spoil piles at least 2 feet from the edge of the excavation. Given this history, Arrow was on the Severe Violator Enforcement Program, a publicly available list maintained by OSHA of employers issued a willful violation directly related to a fatality and on OSHA’s radar. 

On August 20, 2020, Arrow was replacing a sewer line and conducting excavation operations pursuant to a contract with the City of Grain Valley, in Missouri when it was cited by OSHA. Arrow was excavating the front yard of a residential property when an OSHA officer appeared upon receiving a complaint about an unsafe worksite.  The OSHA officer observed the Arrow’s owner, Rick Smith and its site supervisor Joshua Brackenberry working inside an excavation without wearing a hardhat.  No trench box was used for the excavation.  The OSHA officer took measurements of the excavation, which ran from an east-west direction and recorded the width at its opening to be 12’10”, the depth to be 9’3” and the length to be more than 22’2”.  Smith during testified that after the OSHA officer left, he took his own measurements of the width of the excavation’s opening, and recorded it as 14’6” and the excavation floor was 2 ½ or 3 feet wide.  The OSHA officer observed spoil piles along the south wall and to east of the worksite, and although she took soil samples, she did not measure the spoil piles or their distance from the edge of the excavation.  She also observed utility lines in the excavation, including a white pipe fitted with a coupling, as well as an electrical line and a gas line.

Prior to beginning work, Brackenberry, as the competent person, held a safety meeting with Mr. Smith to discuss dangerous situations that could be encountered at the site as well as the challenges of excavating in the front yard of a residential property, and close to the neighbor’s property line.   On the previous day, August, 19, 2020, Brackenberry had excavated at the site and bore a hole under the road so that a 4-inch pope could run underground and tie into the home. He also located the electrical and gas lines and excavated around them with a shovel and had observed that the coupling had separated from the conduit on the electrical line.  He also piled the excavated soil outside the excavation while another employee moved it to the road for removal by the City.  On August 20, 2020, Brackenberry was not using a trench box because he believed that the excavation was properly sloped to prevent a cave-in.  Even Smith who observed that the southern wall of the excavation was nearly vertical, did not have safety concerns and proceeded to enter the excavation with Brackenberry.  Smith also believed the utility lines were safely secured by the walls of the excavation and not at risk of breaking.  At the time, the two men had installed 10 to 12 feet of pipe when the OSHA officer arrived but there was conflicting testimony as to how close they were standing near the utility lines while working in the excavation with Brackenberry indicating they were 10 feet away, Mr. Smith indicating they were 15 to 20 feet away and the OSHA officer testifying that they were 3 to 4 feet away.  

Arrow was cited by OSHA for failure to have its employees wear helmets while working in the excavation, a failure to support or protect utility lines and repeat offenses for failure to keep excavated materials at least 2 feet from the edge of the excavation and failure to protect employees from cave-ins and imposed significant monetary penalties.  After a hearing and review of all the evidence, the Administrative Law Judge (“ALJ”) found that Secretary of Labor and met its burden against Arrow for most of the citation items. 

The relevant safety standard provides that employees working in areas with possible dangers of head injuries from falling or flying objects by protective helmets.  Here, neither Smith nor Brackenberry were wearing hard hats, which they saw as a nuisance, limiting their field of vision.  Brackenbury was working alongside excavation walls that exceed his height and there were tools and spoil piles near the edge of the excavation, and it was reasonably foreseeable they that they could fall or get kicked into the excavation striking an employee and causing serious head injuries.

The ALJ agreed with the Secretary that Arrow also violated the safety standard providing that when an excavation is “open, underground installations shall be protected, supported, or removed as necessary” to protect employees.  Here, neither the gas lines nor electrical lines were properly supported and expert testimony noted that industry standards require some type of structural support such as lumber supports, which were not present herein.  Smith’s testimony that “live” lines were light and sufficiently supported by the walls of the excavation was unavailing.  Furthermore, the OSHA officer testified that she did not observe anything supporting or protecting these lines during her inspections. 

The ALJ vacated the citation against Arrow for violation of the standard which provides that materials or equipment are to be kept least 2 feet from excavations or by the use of retaining devices to prevent hazards from rolling or falling in the excavation because the OSHA officer, here, had actually failed to take measurements of the spoil piles during the investigation and there was insufficient evidence on the record.

Lastly, the ALJ affirmed the citation against Arrow for failure to provide an adequate protective system such as the trench box which actually was present at another location at the site but not used. Arrow’s explanation that such protection was unnecessary since the trench was wider than it was deep was insufficient and actually wrong based on either set of measurements.  Furthermore, the almost vertical wall on its southern side should have required some protective systema and even if there was an issue with the neighboring property line, a trench box could have been used, but was not. 

In light of its repeat offenses, Arrow was assessed monetary penalties in the amount of $163,058 so as to act inflict “pocket-book deterrence”.

¹ https://www.npr.org/2024/07/19/nx-s1-4853020/npr-teams-investigate-a-dangerous-problem-for-construction-workers-trench-cave-ins

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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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