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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Construction companies that maintain in-house first aid responders who would conduct clean-up operations following an accident must be properly trained and the company must have the proper control plans in place. The recent decision in Secretary of Labor v. Denaka Partners, LP arose from a workplace accident in which an employee unfortunately had his arm amputated. This decision shows how employees who are designated as first aid responders that respond in the event of administering first aid or conduct cleanup of blood from equipment must not only undergo proper training but also need to be timely offered any applicable vaccines (which the employee can decline at their choosing). A written bloodborne pathogens control plan specific to both the company and its worksite should be maintained containing certain mandated information.

Denaka Partners LP (“Denaka”) manufactures specialized mechanical and industrial rubber products, in small volumes. Typically, Denaka receives a design order and begins the process of mixing and compounding rubber and then uses mills and machines to create a finished product. It employs approximately 35 employees. On December 18, 2020, an employee, S.H., was adjusting a blade depth on a specialized mill when he lost his balance and his shirt sleeve was caught, pulling his left arm in the mill, resulting in an amputation. S.H.’s arm and hand were lodged in the roll of product, which had to be cut away to remove them. As they awaited EMS services, Denaka employees, M.L. and P.R., retrieved trash bags while Denaka’s President, Richard Balka, retrieved bleach and they then used rags and bleach to clean up the accident area. They then disposed of the rags and their gloves, as well as S.H.’s torn clothing. Denaka had previously utilized a third-party, Capital Health, to train some employees on bloodborne pathogens, as well as CPR and first aid, and also used American Heart Association student workbooks as part of their training program. They also trained their employees on first aid and CPR in 2017, and which included the use of PPE, handwashing, and notification procedures following an accident, although the training was not site specific. Mr. Balka testified during the trial that that they did not have a designated team to actually clean-up blood, and further they had not offered the Hepatitis B vaccination to employees who had completed their bloodborne pathogen training or to their designated first responders prior to this accident (but did so after this accident). They also did not have declination forms (as to the vaccine) on file. Denaka’s Controller, Stacey Hepner in emails sent to OSHA during their investigation indicated that their first responders, included Mr. Balka and M.L. and how Denaka did not have a written program for bloodborne pathogens, which was further confirmed by Mr. Balka in his testimony. However, Denaka following a 2016 inspection had provided OSHA with a bloodborne pathogens policy containing portions of a National Safety Council workbook as proof of abatement.

Following an investigation by OSHA as to the 2020 accident, multiple citations were issued to Denaka but for the purposes of this article, the citation items pertaining to the Hepatitis B Vaccination and Improper Training are discussed.

Under the relevant OSHA standard, employers are to offer the Hepatitis B vaccine to employees within 10 days of initial assignment, such as after having received required bloodborne pathogen training, and to all employees who have occupational exposure, such as after a workplace incident. Occupational exposure is defined as “reasonably anticipated skin, eye, mucous membrane… with blood or other potentially infectious materials that may result from the performance.” The Secretary (of Labor) argued that this safety standard applied since Denaka had trained employees as first aid responders, including, M.L., as early as 2017, and that M.L. had responded to and cleaned-up blood following the 2020 accident. Denaka argued that although it had trained some employees in first aid and bloodborne pathogens, it did not have a set of designated first aid responders. However, the Court found Denaka’s argument unavailing in light of its work with machines and knives, and given its prior accidents, Denaka could reasonably anticipate that designated first aid responders would respond to an incident and they would have occupational exposure to blood resulting from their first aid and cleanup duties. Designated first aid providers might be exposed to bloodborne pathogens in rendering assistance to an injured co-worker and especially when it is reasonably foreseeable the type of injury that would cause bleeding. Basically, if it is reasonably anticipated that an employee will come into contact with blood during their work duties, this standard applies, and the vaccination must be offered within 10 days following employee training, regardless of an exposure event. Consequently, this Citation was properly proven against Denaka.

OSHA also cited Denaka for failing to ensure that each employee with occupational exposure participated in a training program, and for not providing the minimum required elements under the applicable safety standards for employees assigned to conduct cleanup operations after an incident involving blood or other potentially infectious materials. According to OSHA’s safety standards, such training must be provided at no cost to employees during work hours and the employer must ensure employee participation. The training must contain the text of the safety standard, an explanation of the employer’s control plan and where employees can obtain a written copy of same, an explanation of methods to recognize tasks that involve exposure, reporting requirements following an exposure event, vaccine information, and procedures for responding to an exposure incident, including what types of PPE to use and where to find them, etc. The exposure plan in fact must contain fourteen enumerated minimum requirements and training must be offered at least annually. Although Denaka had offered some training, the Court found it to be inadequate, and not compliant with the standard, which required an explanation of its exposure control plan and a written control plan that was facility and company specific. Denaka had been previously cited for a violation of the same standard following a 2016 accident, and the Court had previously found that “Mr. Balka knew a bloodborne pathogen policy and training were needed but did not ensure the policy and training were developed and implemented.” Although training was subsequently undertaken, it was still deficient, and so this item of the Citation was also proven against the company.

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The use of potentially hazardous and dangerous substances such as propane, propylene and compressed oxygen, which are common in the construction industry, need to be handled and used with proper care to avoid work-place accidents. The decision in Secretary of Labor v. First Marine arises from an unfortunate accident shows how employers must ensure that their employees are trained to perform their required duties safely when operating in confined or enclosed spaces when using these hazardous substances.

First Marine, LLC (“First Marine”) owns and operates a shipyard in Calvert City, Kentucky. It had been operating for a month to repair and rebuild a river towboat when an explosion occurred on January 19, 2018, tragically killing three employees. At the time of the accident, the towboat was moored in the Tennessee River. Some of the boat’s doorways and windows were open but because workers were engaging in repairs (during the Winter months), these openings were covered with plastic tarps and welder’s blankets to retain heat and prevent wind incursion in the upper engine room located on the boat’s main deck. Diesel heaters were also being utilized to warm the workers and a propane heater was used in the lower engine room, at the boat’s lower deck. Shipyard operations were overseen by First Marine’s superintendent, Mr. Ronald Thorn, while other supervisors that were present included the dry dock foreman, Mr. David Byrum, who oversaw its welders, the head electrician, Mr. Curtis Jones, and the carpentry crew manager, Mr. Robert Miller. First Marine also had other subcontractors on-site, including Rupke Blasting and Painting (“Rupke”), that performed pressure-washing and painted water tanks. First Marine’s employees and its subcontractors utilized multiple potentially hazardous substances to fuel their equipment and heat the towboat, such as diesel, kerosene, propane, propylene and compressed oxygen.

On the incident day, upon arrival and boarding of the towboat, most workers, including head electrician, Mr. Jones, noticed an atypical gas odor. Although no atmospheric testing was conducted, some workers moved the materials to ventilate the upper engine room. Mr. Jones, accompanied by other workers, conducted a search of the lower engine room to locate the source of the gas odor since, as per Mr. Jones’ testimony, he assumed the smell originated from a propane tank for the heater that had been changed by Rupke’s workers and was located in that area. He had previously wired fans between the lower and upper engine rooms, which were running to ventilate the areas, and additional fans were also set up in a compartment in the forward section of the boat for further ventilation. Thereafter, work commenced in the lower engine room that included welding and cutting with the use of gas and compressed oxygen. At around 9:15 am, an explosion occurred killing and injuring workers.

OSHA issued multiple citations to First Marine but the one at issue, here, pertained to a willful violation of 29 C.F.R. § 1915.12(d)(1) requiring employers to “ensure that each employee that enters a confined or enclosed space and other areas with dangerous atmospheres is trained to perform all required duties safely”. The Secretary (of Labor) claimed that First Marine allowed its employees to enter these confined spaces to perform work that included arc welding with a torch, pipe fitting, (etc.) without training them on hazards of confined and enclosed spaces and exposed them to fire, atmospheric and explosion hazards.

The litigated issues in this decision pertained to First Marine’s noncompliance with the safety standard and whether First Marine’s actions could be characterized as a “willful violation” which would result in greater penalties. To establish non-compliance with the standard, the Secretary must show that the employer failed to provide instructions that a reasonably prudent employer would have provided under the same circumstances. Based on the testimony of five First Marine employees present on day of the explosion, the ALJ¹ determined that these employees lacked “a firm grasp of proper safety procedures” and the ALJ rejected the testimony of First Marine’s supervisors, Mr. Thorn, Mr. Byrum and Mr. Miller, who claimed that their workers were in fact adequately trained, as they failed to provide any documentation of such training as required by a separate OSHA provision pertaining to shipyards. First Marine acknowledged that although many of its employees had not been formally trained, these employees were in fact trained through “informal, on-the-job training” and that their employees appreciated the dangers associated with the smell of gas. The Secretary contended that the noncompliance was not only proven by testimony but by their actions as numerous workers were in fact smoking cigarettes on a vessel that smelled of gas, even while it was being vented, and First Marine failed to train its workers on basic principles of working safely, such as in instances of smelling gas. The Commission agreed, and cited to the testimony of First Marine’s workers showing how they had not been trained in what to do when smelling gas on the boat, discounted the smell as not important or dangerous, and, in fact one of the injured welders testified that he had not been trained on the hazards with using propylene or compressed oxygen in confined spaces and did not even know if he had been working with propylene or propane. Some of the workers failed to even report to a supervisor about the gas odor and three employees even admitted to smoking in an area that smelled of gas. The testimony by First Marine’s supervisors of informal on-the-job training was insufficient especially as it pertained to the smell of gas or the hazards of working with compressed oxygen and given that one worker even admitted he was unaware of what materials he was actually using.

However, based on the evidence, the Commission found that First Marine had not consciously disregarded the safety provision, and re-classified the violation from “willful” to “serious” and lowered the monetary penalty, accordingly. First Marine’s four experienced supervisors had completed competent person training and Mr. Thorn, Mr. Byrum and Mr. Miller all testified that they believed their employees had been sufficiently trained by way of the weekly safety meetings, daily work meetings with welders, and on-the-job instruction. Although this testimony was insufficient to show First Marine’s compliance with the safety standard, based on the evidence submitted, First Marine did not appear to be “plainly indifferent” or that it consciously disregarded the applicable safety standards (so as to be “willful”). The submitted evidence and testimony showed that First Marine did not appreciate that its procedures were deficient, and there had been no prior OSHA citations or an external audit to have placed First Marine on notice that its training was deficient. Moreover, First Marine was not “plainly indifferent” as it responded to the conditions present prior to the explosion by undertaking an investigation as to the source of the gas smell and by ventilating the vessel. First Marine failed to train its employees, it did not fail to respond to the conditions.

¹ The ALJ refers to the Administrative Law Judge for which this matter was initially heard and for which findings and decision was appealed to the Occupational Safety and Health Review Commission whose decision is discussed in this article.

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Engineering surveys are required to be performed by competent persons¹ before demolition operations begin so as to ensure the safety of workers. They should cover the work to be performed, identify the hazards at the site, address measures to prevent hazards and contemplate the danger of unplanned collapse. The decision in Secretary of Labor v. Wildcat Renovation, LLC discusses these requirements, how the Courts have defined “engineering surveys” and what constitutes adequate and proper compliance of the appropriate safety standards.

Wildcat Renovation, LLC (“Wildcat”) is a selective demolition, concrete cutting and shoring specialty company. In 2020, Wildcat bid on a demolition project in Naples, Florida at a water park. The project involved demolishing a wooden footbridge, along with removal of two concrete walls, which had served as supports for the footbridge. Wildcat was sent a set of documents including the scope of work and the “as-builts”. Wildcat’s owner, Mr. Miller, reviewed these documents and also sent out two estimators to the site. Wildcat was ultimately awarded the job. Prior to commencing the work, Mr. Miller visited the site on September 16, 2020, and inspected the structures to be demolished and took videos of the site conditions. On the following day, Mr. Miller returned with Mr. Nywening, the Project Manager. They both performed a visual inspection of the footbridge and concrete supporting walls and developed a demolition plan. The plan used the “score, break and remove” method which involves scoring or cutting partially through the concrete in grid patterns, and then breaking it with a sledgehammer (or other machine) for removal. The plan was memorialized in scope of work document.

On September 24, 2020, Wildcat sent a three-man crew comprised of a foreman, Mr. Norton, and two laborers who had performed various jobs that included concrete cutting and operating machinery. Wildcat also sent to the project a demolition robot, a booming forklift and mini-track loader. The Project Manager met with the foreman and reviewed the scope of work and then over a course of three days, the crew began and completed the removal of the wooden footbridge. The Project Manager visited the site twice a day and noted his visits in daily reports. On September 28, 2020, the crew began demolishing the first concrete wall, without any issue. On the following day, the crew began to remove the debris from the concrete wall and as planned, they would proceed to demo the second wall. The Project Manager had appeared that morning but then left the site. The crew began cutting the second wall. The foreman was in the parking lot moving the forklift while one of the laborers was cutting the bottom of the wall, and the other laborer watched the power lines. As the laborer continued cutting the bottom of the wall, the foreman saw that the wall began to tip and called-out, but the wall fell on the laborer. Tragically, the laborer would succumb to his injuries.

Following this incident, an OSHA Compliance Officers inspected the site, took photographs and measurements and interviewed the foreman and laborer from Wildcat’s crew and subsequently issued a citation. The first item of the Citation alleged that “an engineering survey was not performed by a competent person to determine the conditions of the walls and the possibility of unplanned collapse…a competent person did not perform and document in writing an engineering survey of 6’ x 10’ cement walls to determine their condition…” The Secretary (of Labor) contended that to the extent Wildcat performed an engineering survey it was inadequate and did not take into account the possibility of unplanned collapse, as it was noted in Wildcat’s scope of work sheet, that no shoring was necessary.

The appropriate safety standard provides that “prior to permitting employees to start demolition operations, an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors and walls, and the possibility of unplanned collapse of any portion of the structure…The employer shall have in writing evidence that such survey has been performed.” The Administrative Law Judge (“ALJ”) in this matter found that nowhere in the standard or its source standard (ANSI A10.6-1969) was the term “engineering survey” actually defined and thereafter looked at how the OSHA’s Review Commission, and other judges have addressed the standard’s requirements. The Commission in Ed Miller Sons Inc. No. 934 (OSHRC July 31, 1974) found that the demolition’s company vice president who was experienced in demolition, had inspected the structure at issue twice, developed a sequence for the work, memorialized his plan and confirmed that he had in fact conducted the inspections in a signed memorandum, which all together constituted adequate compliance to the safety standards.

Here, the ALJ found that Wildcat’s actions mirrored those in Miller that had been found adequate. Mr. Miller had received and reviewed the set of documents that included the “as built drawings” which gave him the height, size and thickness of the concrete walls, the psi of the concrete used, and the steel embedment of the walls, he had visually inspected the structures, took videos and confirmed that the structures were consistent with the drawings and that no shoring or bracing was required and that the most effective method for demolition here was to “score, break and remove”. Mr. Miller believed that this method would keep the wall stable until it was brought down by equipment and how he had used this method “thousand of times”. Further the ALJ noted how Mr. Miller returned to the site on the following day, conducted further visual inspections of the footbridge and concrete walls, and together with Project Manager, agreed on a plan to demolish the structures. These plans were memorialized in a scope of work document which included details of the project, how Wildcat intended to complete the job, equipment to be used, the site conditions and overall means and methods and how shoring was not needed. Moreover, Mr. Miller and the Project Manager communicated the scope of work with the crew and the Project Manager memorialized his visits in daily reports. The Secretary provided an expert who testified that Wildcat’s engineering survey did not meet the requirements of the safety standard because it did not note the hazards on the site and did not contain a plan for using protective measures and therefore showed that Wildcat did not consider the possibility of unplanned collapse. The ALJ disagreed and found that all of Mr. Miller’s steps were in fact adequate to conduct an adequate engineering survey and vacated this item of the Citation.

¹ Defined as “one who is capable of identifying existing and predictable hazards in…working conditions …and who has authorization to take prompt corrective measures to eliminate them.”

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