THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., 9th Floor

Washington, DC 20036-3457

Appearances:

  Carlton C. Jackson, Esq.

  Office of the Solicitor, U.S. Department of Labor, Dallas, Texas

  For Complainant

  Merritt B. Chastain, III, Esq.

Ogletree Deakins Nash Smoak & Stewart PC, Dallas, Texas

  For Respondent

BEFORE: Administrative Law Judge Sharon D. Calhoun

On November 14, 2017, a pavement marking technician installing raised pavement markers1 on US Highway 90 near Devers, Texas, was fatally injured when the protection truck immediately behind him in his work convoy crashed into his work truck, causing him to fall underneath the protection truck. RoadSafe Traffic Systems, Inc. (RoadSafe), employer of the employee, notified the Occupational Safety and Health Administration (OSHA) of the accident. The next day, November 15, 2017, OSHA Compliance Safety and Health Officer (CSHO) James Jacob initiated an inspection of RoadSafe’s worksite. As a result of OSHA’s inspection, the Secretary issued a Citation and Notification of Penalty (Citation) to RoadSafe on April 17, 2018, alleging two serious violations2 of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (Act). After the Complaint was filed, the Secretary filed an Unopposed Motion to Amend the Complaint and Citation to allege in the alternative two violations of Section 5(a)(1), the general duty clause, of the Act. Prior to trial, the Secretary voluntarily withdrew Citation 1, Item 1 (Exh. J-1, ¶5)3. Therefore, only Citation 1, Item 2 as amended remains at issue. At trial, the Secretary clarified the general duty clause in Citation 1, Item 2 was being alleged in lieu of the previously cited standard and not in the alternative (Tr. 7, 17, 18; J-1)4.

Item 2 as amended alleges a serious violation of the general duty clause, asserting RoadSafe did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to fall hazards while using the liftgate of a moving vehicle as a work platform at the work site on US Highway 90 (Tr. 8-9; Exh. J-1, ¶5). The Secretary proposes a penalty of $12,675 for this Item (Tr. 9).

For the reasons set forth herein, the Court AFFIRMS Item 2 of the Citation as amended and assesses a penalty of $12,675.

JURISDICTION AND COVERAGE

RoadSafe timely contested the Citation on May 8, 2018. The Court held a hearing on March 27, 2019, in Conroe, Texas. Both parties filed post-hearing briefs on May 28, 2019. The parties stipulated jurisdiction of this action is conferred upon the Commission pursuant to §10(c) of the Act and RoadSafe admits at all times relevant to this action it was an employer engaged in a business affecting interstate commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 18; Exh. J-1, ¶¶ 1 and 2). Based on the stipulations, admissions and the record evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of the Act and RoadSafe is a covered employer under § 3(5) of the Act.

STIPULATIONS

The parties submitted the following stipulations as a joint exhibit:

(Exh. J-1)

  At trial, Respondent abandoned its employee misconduct or supervisory misconduct defense (Tr. 43).

BACKGROUND

RoadSafe Traffic Systems, Inc. (RoadSafe) is a road construction company which provides traffic control, pavement marking and pavement striping for the Department of Transportation (DOT), states, municipalities, utilities and railroads. In addition to the services it provides for governments, RoadSafe provides pavement marking services for private airports, military bases and parking lots. Pavement marking involves painting or putting thermoplastic chemical5 on highway center lines and installing reflective marking devices (Tr. 194, 247-248; Jt. Exh.1 ¶¶ 8, 9, 10).

On November 14, 2017, a RoadSafe crew was assigned to re-install road reflectors to the center line of Highway US-90 near Devers, Texas, a four-lane highway (two lanes in each direction) with a speed limit of 65 miles per hour. The crew worked in the far right lane of the highway (Tr. 134). The work spanned approximately seven miles of the highway where reflectors on the center line had previously popped off or had been removed because they were damaged (Tr. 132). The entire seven-mile distance was considered by RoadSafe to be the work zone (Tr. 314). The work in that work zone was part of a punch list of items to complete an ongoing project (Tr. 105, 106). The crew working this portion of the punch list included the Foreman,6 the pavement marking technician (Employee #1), the protection truck driver (Employee #2), and the driver of a truck equipped with a Truck Mounted Attenuator (TMA) (Employee #3) (Tr. 128).

The far right lane where the crew worked was not completely closed for the seven-mile work area. Instead, the crew utilized a three-vehicle convoy in a rolling lane closure to install the road reflectors (Tr. 108, 129-130).7 A rolling lane closure is where the lane of the work area is closed only within the parameters of the convoy so traffic will not enter in the work area. The area of the lane closure moved with the convoy as it proceeded along the highway in the direction of traffic. Traffic moved freely in front, behind and in the left lane adjacent to the work area in the rolling lane closure (Tr. 134).

The first truck in the convoy (work truck), a Terrastar International work truck equipped with a Waltco liftgate, was driven by the Foreman. The pavement marking technician (Employee #1)8 rode in the bed of the Foreman’s truck. Following was a Ford F-450 pulling a trailer (protection truck), driven by Employee #29 to protect Employee #1 from passing motorists. The TMA (crash truck) was the last truck in the convoy and was driven by Employee #310 (Tr. 49, 110-111). It was designed to take the impact of any vehicle approaching from behind (Tr. 231). While they worked, the crew wore bright yellow safety vests with reflective tape and hard hats (Tr. 150).

The speed of the convoy was set by the Foreman who testified he drove his truck at a speed of 5 to 10 miles per hour (sometimes up to 12 miles per hour) (Tr. 114, 138, 159, 160).11 He testified he never accelerated or braked quickly because it was a slow operation (Tr. 138). Employee #2 testified the Foreman sometimes drove 25 to 30 miles per hour in long stretches where reflectors did not need to be installed (Tr. 64). The Foreman provided instructions to the drivers of the protection truck and the TMA to follow at a distance of five or six skips which was 200 to 240 feet (Tr. 130-132, 240). Employee #2 testified the Foreman instructed them to keep a good distance (Tr. 73).

To install the reflectors, the Foreman would drive the work truck until he saw a location with a missing road reflector, at which time he positioned the work truck so the back of it was across from where the reflector needed to be installed (Tr. 141). He then stopped so Employee #1 could exit the bed of the work truck to apply the bituminous tar adhesive and install the road reflector. Once the road reflector was installed, Employee #1 got back in the bed of the work truck and the Foreman drove to the next location (Tr. 112-113). The process was repeated throughout the seven-mile work zone on Highway US-90. The reflectors were 80 feet apart, however the stretches along the highway between where reflectors needed to be installed varied (Tr. 111-113). The pavement marking process is a start and stop operation (Tr. 319).

While riding in the bed of the work truck, Employee #1 sat behind the driver’s side, in front of the melting machine containing the bituminous tar adhesive which was tied to the gates on the side of the work truck (Tr. 50, 119, 120; Exhs. C-12A, R-16, p. 2). The liftgate of the work truck was in the down position as the convoy traveled so Employee #1 could enter and exit the bed of the work truck, using the liftgate as a step and as a footrest while seated in the bed of the work truck (Tr. 51, 74, 121, 137, 139, 233, 234; Exhs. C-12, C-12A, R-16, p. 2). When down, the liftgate was 18 inches from the ground. A chain covered in black fabric was attached to the liftgate and the back of the work truck on the driver’s side (Tr. 80, 137, 142, 161, 2; Exh. R-16, p. 2). The reflectors to be installed were on the liftgate in a bucket and a box (Tr. 167, 169-170).

By using the large left side view mirror and open driver’s side window the Foreman could observe the location of Employee #1. He could see when Employee #1 completed installing the road reflector and resumed his place in the bed of the work truck (Tr. 123, 126, 152, 232). The Foreman testified Employee #1 only stood up when in the work truck when it was stopped; and testified “no” at the hearing when asked whether he ever saw Employee #1 sitting on the tailgate of the truck (Tr. 119, 120-121).

RoadSafe has a bituminous application trailer, a specially configured vehicle to allow Employees to ride with fall protection when working from it to install road reflectors (Tr. 125, 315). When in that trailer, employees are seated and are secured by fall protection as they work. The trailer is 6 inches from the pavement and is between 6 and 12 inches from the center line. The bituminous application trailer is used only when working on a “long line job” where reflectors are being installed for the very first time for a series of miles (Tr. 135, 315-316). If only a few reflectors need to be installed in a short distance, Roadsafe allows its employees instead to use a work truck and convoy (Tr. 135). Because the bituminous application trailer was not available and since the work covered a short distance with frequent stops, the Foreman’s supervisor (identified only as Chris) made the decision for the crew to use a three-truck convoy to complete the work (Tr. 126, 127).

The crew had made approximately 30 stops installing as many reflectors without incident when at approximately 3:00 p.m. the second truck in the convoy, driven by Employee #2, unexpectedly increased its speed and rear-ended the work truck carrying Employee #1 (Tr. 142, 146). The Foreman saw the second truck rapidly approaching at approximately 30 miles per hour. He yelled at Employee #1 to watch out. The work truck had stopped so Employee #1 could replace a reflector. It had been stopped for 5 to 10 seconds when the Foreman saw the protection truck approaching fast, and he screamed Employee #1’s name telling him to be careful. According to the Foreman, Employee #1 tried to get back to the bed of the truck when the protection truck hit the work truck (Tr. 146, 147, 148, 159). In his interview statement to OSHA, Employee #3 stated he saw Employee #1 jump from the back of the truck to avoid being hit in the collision (Exh. C-2, p. 00054). Employee #2 testified Employee #1 jumped from the bed of the work truck (Tr. 54-55).

Employee #2 had veered his truck to the left, apparently trying to avoid a collision, but putting it in the direct line of where Employee #1 was located in the bed of the truck. Employee #1 either tried to jump out of the way of the approaching truck or was ejected from the truck as a result of the impact. He was pinned under the axel of the protection truck (Exh. C-2, p. 00055). After the impact, the Foreman exited the work truck and discovered the location and condition of Employee #1. He testified Employee #2 approached him then and said “I’m sorry, I’m sorry; I don’t know what happened.” (Tr. 149) The Foreman said to him “Man, you killed [Employee #1].” (Tr. 149) According to the Foreman, Employee #2 responded “Man, you know, I got a lot of problems, you know. I don’t know what happened.” (Tr. 149-150) During his interview with CSHO Jacob, Employee #2 said as he was adjusting mirrors, he knew he was too close and was going to hit the work truck (Exh. C-2, p. 00054).

After the accident Employee #3 approached and the Foreman told him to call 911 (Tr. 240). In response to the 911 call, State of Texas Department of Public Safety investigator Nathaniel Godfrey arrived at the scene of the accident seven minutes after it occurred. Once onsite, he conducted his investigation and prepared a Texas Peace Officer’s Crash Report regarding the accident. His report provides in relevant part the following narrative opinion of what happened:

Unit #3 was traveling E/B on US-90. Unit #1 towing unit #2 was following behind unit #3. The passenger of unit #3 was sitting outside the rear of the vehicle on the left back quarter side laying down center stripe road markers, when unit #1 towing unit #2 struck the left back quarter of unit #3, ejecting the passenger causing him to roll under unit #2 where he came to rest.

(Exh. C-11, p. 2) The following diagram of the accident was included in the report:

(Exh. C-11, p. 2)

RoadSafe notified OSHA of the fatality accident. On November 15, 2017, CSHO Jacob initiated OSHA’s inspection at RoadSafe’s Houston office and truck yard (Tr. 178). During the inspection, CSHO Jacob12 conducted an opening conference, did a walk around of the truck yard to observe the trucks involved in the accident, took photographs and conducted interviews. He scheduled another visit to go to the incident site, made a return visit to interview Employee #2, and a final visit in April 2018 to conduct additional interviews (Tr. 179, 180). As a result of his inspection, CSHO Jacob determined Employee #2 misjudged the convoy speed and sped up to keep close to the work truck (Exh. C-2, p. 00054).

The Secretary obtained a copy of RoadSafe’s policy prohibiting employees from riding in the back of vehicles in certain circumstances. It provides:

It is permissible to WORK in or on the back of our vehicles as the job requires. However, RIDING in the back of vehicles, without the benefit of seat belts, is NOT permitted when not working. Examples of ‘not working’ include when the vehicle is moving to or from the yard to the work location, or between work locations when actual pavement marking is not occurring or traffic control devices are not being deployed.

(Exh. R-1, pp. 41, 43) (emphasis in original).

Based on CSHO Jacob’s inspection, he recommended the issuance of the citations initially issued in this case alleging violations of two motor vehicle standards of Subpart O- Motor Vehicles, Mechanized Equipment, and Marine Operations. Those citations were subsequently amended to allege two violations of the general duty clause, one of which remains at issue in the in this case.

Credibility

The Court recognizes how difficult it was for the crew members who observed the tragic accident resulting in the death of their co-worker. The Court also realizes the shock each crew member may have experienced as a result. In such situations recall of the events may be affected. In assessing the credibility of the witnesses in this case, the Court is cognizant of this and therefore attributes more weight to the recollections made closer in time to the occurrence of the accident. The Court’s credibility determinations are not a reflection on the truthfulness or character of the witnesses. Instead they are based on what the Court determines are the most reliable recollections of the circumstances surrounding the accident.

The Court credits the testimony of Employee #2 that Employee #1 was in the bed of the work truck at the time of the accident. His testimony is consistent with the Public Safety investigator’s report of the accident and with Employee #3’s interview statement to CSHO Jacob. As Employee #2’s testimony is consistent with the Public Safety investigator’s report, and there is no evidence in the record Employee #2 provided any information to the Public Safety investigator for his report, the Court is not persuaded Employee #2’s recollection of the events should be discredited because of any alleged personal injury action against him regarding the accident, as Respondent contends. During his testimony, Employee #2 appeared remorseful and did not appear to try to distort his recollection of the events.

The Foreman’s testimony that Employee #1 was on the pavement and attempting to get back into the work truck is discredited as being inconsistent with the Public Safety investigator’s report, the testimony of Employee #2, and Employee #3’s interview statement to OSHA during the inspection. Further, in his interview with CSHO Jacob during the inspection, he stated that when he saw the protection truck coming up behind them fast he “tried to push the gas” on the work truck to increase the distance (Exh. C-2, p. 00054). He testified at the hearing he had stopped the work truck so that Employee #1 could install the road reflector (Tr. 146, 147, 148, 159). During his testimony the Foreman seemed nervous and his testimony was confusing and defensive. He was clearly upset by the accident. When the Foreman testified, he appeared to be making an effort to say the right thing, as if he were trying to please his employer.

The Court credits Employee #3’s statement to CSHO Jacob during the inspection that Employee # 1 was working on the rear lift gate (Exh. C-2, p. 00054). The Court further credits his testimony Employee #1 sat on the back of the truck with his feet on the tailgate when the work truck would start to move looking for the next button (Tr. 236). During his testimony Employee #3 appeared confident and forthcoming.

The Citation

The Citation as amended alleges a serious violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970 as follows:

The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to fall hazards:

(a) On or about November 14, 2017, at the work site on US Highway 90, employees were exposed to fall hazards while using the lift gate of a moving vehicle as a work platform.

As a feasible means of abatement, the Citation alleges:

Feasible means to abate this hazard include but is not limited to prohibiting the use of a lift gate of a moving vehicle as a work platform and/or only using a trailer or vehicle specifically designed for installing reflector buttons on the freeway.

(Tr. 8-9; Exh. J-1, ¶5)

ANALYSIS

Elements of a § 5(a)(1) Violation

Section 5(a)(1) of the Act mandates that each employer “furnish to each of his employee’s employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). To establish a violation of the general duty clause, the Secretary must show that: (1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm; and (4) a feasible means existed to eliminate or materially reduce the hazard. Pegasus Tower, 21 BNA OSHC 1190, 1191, 2005 CCH OSHD ¶ 32,861, p. 53,077 (No. 01-0547, 2005).

Erickson Air-Crane, Inc., No. 07-0645, 2012 WL 762001, at *2 (March 2, 2012).

  In addition to the above-quoted elements of a § 5(a)(1) violation, the Secretary must also establish the employer had either actual or constructive knowledge of the hazardous condition. Deep South Crane & Rigging Co., 23 BNA OSHC 2099 (No. 09-0240, 2012), aff’d Deep South Crane & Rigging Co. v. Seth D. Harris, 24 BNA OSHD 1089 (5th Cir. 2013).

Whether an Activity or Condition at the Site Constituted a Hazard

  The amended Citation provides employees “were exposed to fall hazards while using the liftgate of a moving vehicle as a work platform.”

  In a recent decision the Commission reiterated

In a general duty clause case, “[the] hazard must be defined in a way that apprises the employer of its obligations, and identified conditions and practices over which the employer can reasonably be expected to exercise control” Arcadian Corp, 20 BNA OSHC [2001, 2007 (No. 93-0628, 2004)]; Peron Corp., 12 BNA OSHC [1833, 1835 (No. 82-388, 1986)]. The Secretary must show, among other things, that the hazard was present. Wheeling-Pittsburgh Steel Corp., 16 BNA OSH 1218, 1221 (No. 89-3389, 1993).

Mid South Waffles, Inc. d/b/a Waffle House #1283, 27 BNA OSHC 1783, 1785 (No. 13-1022, 2019).   

  The Secretary defined the hazard in this case as a fall hazard while using the liftgate of a moving vehicle as a work platform. He asserts the employees were not protected from falling from the moving vehicle. The evidence adduced at trial shows Employee #1 rode on the liftgate when the convoy was moving in the work area: Employee # 2 testified:

Q. Did [Employee #1] ever sit on the rear of the lift gate and apply the- -

A. He – yes. He did at one point. Yes. He did when - - like I said, because we,

me and him, we covered the point where we had not to remove all these buttons. About - - I would say about 50 or 60. So he sat on the back to cover that distance. After we covered that distance, then he repeated the same process.

Q. Okay. So when you were coming up intermittently on the buttons that you had removed, he would - -

A. Yes.

Q.-- go up and down from the bed to the tailgate to the ground, to put on the liquid and to remove the buttons.

A. Yes, sir.

Q. But when you had to travel a distance, he would sit on the tailgate.

A. Yes. He only did it once, but if I - - just to cover that distance that we were going forward, he just sat on it once, from what I remember.

(Tr. 55-56). Although the evidence does not show Employee #1 sat on the liftgate for shorter stretches to install the road reflectors, it shows he sat in the bed of the work truck with his feet on the liftgate while the work truck was moving during those stretches (Tr. 112-113). Regarding what appears to be activity immediately prior to the accident, Employee #2 testified:

Q. Yes. You said that he would get the liquid from the bed of the pickup truck –

A. Yes.

Q. --jump down to the lift gate and then on to the ground and put the liquid down and then put the marker down. Correct?

A. Yes, sir.

Q. Okay. So as he was in the back of the pickup, in the bed of the pickup, was the truck stationary or was it moving?

A. It was slightly moving, coming to a very stop, and I wasn’t sure-- at this point, this is where, you know--once he was doing that and applying-- repeating the process, I gave him a good distance. And while I was coming to a complete stop with them, at the very end, he was on the tailgate. . .

(Tr. 53-55). The Foreman’s testimony also confirms, regarding the way they performed the work, Employee #1 was in the bed of the work truck while it was moving (Tr. 118-119).

RoadSafe’s regular practice for employees installing road reflectors when using a convoy to accomplish this task was to allow them to ride in the bed of the work truck. It considered riding for this purpose to be “work activity.” Glen Thompson,13 RoadSafe’s Chief Operating Officer testified an employee is considered “working” in the back of the truck because he is in a “work zone, moving at a slow speed in a published state-designated work zone” (Tr. 291). Therefore, the Court finds employees riding in the bed of the work truck is not disputed.

RoadSafe disputes however, the Secretary’s position the employees were not protected from falling from the work truck while it was moving. It argues Employee #1 was more than adequately protected from falling because he had four points of contact while riding in the work truck while seated with feet placed on the liftgate and when holding with one hand onto the fabric wrapped chain connected to the liftgate (Tr. 279). Thompson testified this is more protection than even OSHA requires (Tr. 279). No credible evidence was adduced at trial that when Employee #1 was riding on the tailgate or immediately prior to the accident, he was holding onto the chain on the liftgate while the work truck was moving. RoadSafe produced no work rules or policies requiring employees to hold onto the chain for fall protection. Moreover, the Foreman testified holding onto the chain was not sanctioned by RoadSafe, that it was just something Employee #1 would do (Tr. 162-163).

The Secretary further described the fall hazard as occurring when the employee used the liftgate of a moving vehicle as a work platform. RoadSafe does not dispute the liftgate was used as a work platform. The uncontroverted evidence shows the liftgate was used as a staging area or platform for the reflectors which were in a bucket and box on the liftgate for Employee #1 to install once the work truck arrived at the designated area (Tr. 167, 169-170). The evidence does not show the reflectors were removed from the liftgate before the work truck moved along stretches of highway. The liftgate remained in a down position throughout the convoy’s movement along the highway.

  The Court finds the Secretary has adequately defined the hazard and Employee #1 was unprotected from falling while riding on the back of the work truck. Therefore, Employee #1 was exposed to a fall hazard while riding on the back of the moving work truck while using the liftgate as a work platform.

Whether the Employer or its Industry Recognized the Hazard

The Secretary asserts RoadSafe recognized riding in the back of a truck created a fall hazard, and provides as support, RoadSafe’s Employee Handbook, ANSI standard A10 47-1015 4.5.4, a Job Safety Analysis and OSHA 300 logs reflecting instances when RoadSafe employees had fallen from trucks (Secretary’s brief, pp. 10-13). RoadSafe disagrees, arguing none address the hazard of falling from a moving vehicle as cited by OSHA in this case.

RoadSafe points out the Co-Worker Safety Handbook prohibits riding on vehicles only when transiting between work locations unless actively setting up or taking down temporary traffic control devices. It argues the ANSI standard relied upon by the Secretary addresses putting down and taking up traffic control devices, a different work activity than what the employees in this case were engaged in. Regarding the JSA alleged in support by the Secretary, RoadSafe argues it too only prohibits riding on the back of a vehicle when transiting between work locations (RoadSafe brief, pp.19-20). And RoadSafe argues the circumstances regarding the incidents set forth in the OSHA 300 logs do not address the cited hazard.

The evidence adduced at trial shows RoadSafe recognized the cited hazard. RoadSafe’s Safety Manual provides:

It is permissible to WORK in or on the back of our vehicles as the job requires. However, RIDING in the back of vehicles, without the benefit of seat belts, is NOT permitted when not working. Examples of ‘not working’ include when the vehicle is moving to or from the yard to the work location, or between work locations when actual pavement marking is not occurring or traffic control devices are not being deployed.

(Exh. R-1, pp. 41, 43) (emphasis in original) RoadSafe’s Job Safety Analysis for Short Duration Work to protect against fall hazards provides “[t]there shall be NO riding on back of tail or lift gates at any time.” (Exh. C-7, p. 3)(emphasis in original) Further, Chief Operating Officer Thompson testified employees are not permitted to ride in the back of a vehicle for transportation because it “subjects an employee to risks from either (a) falling out of a vehicle, or if the vehicle’s involved in a motor vehicle accident, people would be ejected from the back of a vehicle.” (Tr. 254)

  The distinction RoadSafe makes between riding in the back of a vehicle when working as opposed to transiting is illogical. The hazard of falling when riding unprotected on a vehicle is the same whether a worker is working or transiting. Thompson’s testimony alone establishes RoadSafe’s recognition of the cited fall hazard. The Secretary has established employer recognition of the hazard.

Whether the Hazard was Likely to Cause Death or Serious Physical Harm

  To establish this element, the Secretary presented evidence of prior OSHA inspections citing violations for falls from the bed or back of moving vehicles (Exh. C-22). Exhibit C-22 shows situations where employees suffered injuries such as skull fractures, facial injuries and other injuries requiring hospitalization. It also includes situations where employees died as a result of their falls from moving vehicles.

  It cannot reasonably be disputed that falls from moving vehicles are likely to cause death or serious physical harm. Therefore, RoadSafe argues the conditions set forth in the examples of prior instances set forth in Exhibit C-22 are different from the conditions here and involve falls from the bed of the truck or lift gate directly to the pavement. RoadSafe relies on CSHO Jacob’s alleged testimony that a fall in this case would be first to the lift gate and then to the pavement (RoadSafe’s brief, p. 23). RoadSafe mischaracterizes CSHO Jacob’s testimony. He testified in response to RoadSafe’s questioning, that a fall first to the liftgate was only one possibility (Tr. 210). The Court finds no merit in RoadSafe’s argument. As CSHO Jacob testified, the employee would still be exposed to a fall (Tr. 210).

  RoadSafe also disputes CSHO Jacob’s characterization of the violation as being of high severity because Employee #1 died. RoadSafe argues Employee #1’s death was not because he fell from the work truck but because he was hit by the protection truck while on the road trying to get back into the bed of the work truck (RoadSafe’s brief, p. 24). The Court discredits this version of the accident. The credible evidence shows Employee #1 was on the work truck at the time of impact. Public Safety investigator Nathaniel Godfrey’s Crash Report provides he was ejected from the vehicle (Exh. C-11, p. 2). The Court finds the Public Safety Accident Report to be reliable. The report was made on the same day of the accident. Its content was not disputed by either party at the hearing. Therefore, the Court credits the Public Safety Crash Report over testimony to the contrary, including testimony that Employee #1 jumped from the work truck.

  Employee #1 suffered fatal injuries as a result of his fall from the work truck. The Secretary has established the hazard of falling from a moving vehicle is likely to cause death or serious physical harm.

Whether a Feasible Means Existed to Eliminate or Materially Reduce the Hazard

As a feasible means of abatement, the Secretary set forth in the Citation prohibiting the use of a liftgate as a work platform and/or using a trailer or vehicle specifically designed for installing reflector buttons on the freeway. In addition, the Secretary set forth in his post-trial brief that employees could install the road reflectors on foot and employees could ride in the cab of the work truck on the passenger side and exit to install each road marker (Secretary’s brief, p. 17).

The Secretary has the burden of “demonstrat[ing] both that the [proposed abatement] measures are capable of being put into effect and that they would be effective in materially reducing the incidence of the hazard.” Beverly Enters., 19 BNA OSHC at 1190, 2000 CCH OSHD at p. 48,981. “Feasible means of abatement are those regarded by conscientious experts in the industry as ones they would take into account in ‘prescribing a safety program.”’ Id. at 1191 (quoting Nat'l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973)). If the proposed abatement “creates additional hazards rather than reducing or eliminating the alleged hazard, the citation must be vacated for failure to prove feasibility ....” Kokosing, 17 BNA OSHC at 1875 n.19, 1995-1997 CCH OSHD at p. 43,727 n.19. But the Secretary is not required to show that the proposed abatement would completely eliminate the hazard. Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1122, 1993-1995 CCH OSHD ¶ 30,048, p. 41,279 (No. 88-572, 1993).

Acme Energy Servs., No. 08-0088, 2012 WL 4358852, at *6 (OSHRC Sept. 19, 2012), aff’d Acme Energy Servs. v. OSHRC, 542 F. Appx. 356 (5th Cir. 2013).

In his brief for the first time, the Secretary proposed as a feasible means of abatement having the employees install the road reflectors by foot. The Secretary posits this would be feasible as demonstrated by the employees having removed the defective reflectors by foot on the morning of November 14, 2017, with an employee walking between a two-truck convoy. Since the post-hearing briefs were filed simultaneously, RoadSafe did not address this proposed feasible abatement method. The evidence shows the road reflector installation process is different from the removal process, as it requires the use of a melting machine with bituminous tar heated to at least 300 degrees, and at a minimum a two-step installation process. The Secretary did not address how installing the road markers by foot is feasible in light of the differences between the installation and removal processes. Nor did he address how this proposed abatement method impacts RoadSafe’s policy of limiting the time employees are on the road in order to reduce their exposure to hazards from traffic. Therefore, the Court finds the Secretary has failed to establish installing the road reflectors by foot is a feasible means of abatement.

The Secretary’s proposed feasible abatement of having employees ride in the passenger side of cab of the work truck and exit to install each road marker also fails. The Court is persuaded by RoadSafe’s argument the employees would be exposed to a greater hazard of traffic from the right side of the work truck. The Secretary did not address in his brief prohibiting the use of the liftgate as a work platform as a feasible means of abatement, as alleged in the amended Citation. Nor was evidence adduced at the trial regarding this. The Court therefore rejects this proposed abatement method.

The Court now turns to the Secretary’s proposed feasible abatement measure regarding the use of a specially configured vehicle. RoadSafe already uses a specially configured vehicle called a bituminous application trailer for installing road markers when long distances are involved. The bituminous application trailer allows employees to ride with fall protection when working from it to install road reflectors (Tr. 125, 189, 315). RoadSafe does not use the bituminous application trailer however for work involving short distances with frequent stops, such as in this case. Although it uses the bituminous application trailer for work involving long distances, RoadSafe asserts it is not used for the safety of employees, but rather to allow faster production (RoadSafe’s brief, p. 15). It argues the employees on short distances would be exposed to a greater hazard because of prolonged exposure to the center line of the highway in proximity to live traffic (RoadSafe’s brief, p. 15).

RoadSafe’s argument regarding the infeasibility of using the bituminous application trailer for short distances is perplexing. Employees using it for long distances are exposed to the same hazards as those on short distances, potentially for longer periods of time. RoadSafe’s argument suggests it values expediency over Employee safety. RoadSafe has not argued that the frequent stops made on short distances impacts production significantly, if at all. Nor has it shown the hazards to which employees are exposed on short distances are any different than those on long distances. The Court is not persuaded use of the bituminous application trailer on short distances exposes employees to a greater hazard. The Court finds use of the bituminous application trailer would materially reduce exposure to fall hazards when installing road reflectors on short distances and is a feasible means of abating the fall hazard, as demonstrated by use of the bituminous application trailer by RoadSafe for long distances.

The Secretary has established a feasible means of abating the fall hazard.

Whether RoadSafe had either Actual or Constructive Knowledge of the Hazard

The Secretary must prove that the employer had either actual or constructive knowledge of the violative conditions. To prove knowledge, the Secretary can show that a supervisor had either actual or constructive knowledge of the violation and such knowledge is generally imputed to the employer. An employee who has been delegated authority over another employee, even if only temporarily, is considered to be a supervisor for purposes of imputing knowledge to an employer. American Engineering & Development Corp., 23 BNA OSHC 2093, 2012 (No. 10-0359, 2012); Diamond Installations, Inc., 21 BNA OSHC 1688 (Nos. 02-2080 & 02-2081, 2006); Tampa Shipyards, Inc., 15 BNA OSHC 1533 (Nos. 86-360 and 86-469, 1992). Where the Secretary shows that a supervisor had either actual or constructive knowledge of the violation, such knowledge is generally imputed to the employer.” ComTran Crp., Inc. v. U. S. Dep’t of Labor, 722 F.3d 1304, 1307-08 (11th Cir. 2013). A supervisor’s knowledge of a subordinate employee’s violative conduct may be imputed to the employer even when the supervisor himself is simultaneously involved in the same violative conduct. Quinlan v. U. S. Dept. of Labor, 812 F.3d 832 (11th Cir. 2016).

Here, the Foreman drove the work truck with Employee #1 riding in the bed of the truck using the liftgate as a work platform to install road reflectors. He was aware there was no fall protection available on the work truck. Although the liftgate has a chain connecting it to the bed of the work truck, the Foreman testified the company did not advise using the chain as a handhold (Tr. 162-163). The Court discredits the Foreman’s testimony that Employee #1 used the chain on the liftgate for fall protection. This testimony was not corroborated by any other witness. The Foreman had actual knowledge Employee #1 worked without the use of fall protection while riding in the bed of the work truck while it was moving. In addition, because it was RoadSafe’s practice to use work truck convoys for short distances when installing road reflectors, management including higher level officials, such as Glenn Thompson, were aware employees worked without fall protection. Knowledge is established.

The Secretary has established a violation of §5(a)(1) of the Act.

CHARACTERIZATION OF THE VIOLATION

  The Secretary characterized the violation of § 5(a)(1) as serious. A serious violation is established when there is “a substantial probability that death or serious physical harm could result [from a violative condition] . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k).

  As a result of his review of OSHA citations relating to prior inspections for falls from trucks and his review of OSHA 300 logs for Roadsafe, CSHO Jacob determined falling from the back of a truck posed a serious hazard which could result in serious injuries or death (Tr. 181, 187-188; Exh. C-22). Employee #1’s injuries were fatal. The violation is properly characterized as serious.

PENALTY DETERMINATION

  “In assessing penalties, section 17(j) of the Act requires the Commission to give due consideration to the gravity of the violation and the employer's size, history of violation, and good faith. 29 U.S.C. § 666(j). Gravity is a principal factor in the penalty determination and is based on the number of employees exposed, duration of exposure, likelihood of injury, and precautions taken against injury.” Siemens Energy & Automation, Inc., No. 00-1052, 2005 WL 696568, at *3 (OSHRC February 25, 2005) (citation omitted). "Gravity, unlike good faith, compliance history and size, is relevant only to the violation being considered in a case and therefore is usually of greater significance. The other factors are concerned with the employer generally and are considered as modifying factors.'' Natkin & Co. Mech. Contractors, No. 401, 1973 WL 4007, at *9, n. 3 (OSHRC April 27, 1973).

CSHO Jacob considered in calculating the gravity of the violation that only one employee was exposed and determined the gravity based penalty for the violation in Item 2, Citation 1 as amended was of high severity and greater probability because an employee was killed and because that employee and other employees perform worked on a regular basis from the rear liftgate of trucks and were not protected from falling (Tr. 191).

No reduction in the gravity-based penalty was given. Roadsafe employs 1700 employees so no penalty reduction for size was given (Tr. 192). No penalty reduction for history was given because Roadsafe had been previously cited for a high gravity safety violation under an OSHA State Plan. And no penalty reduction for good faith was given because the cited violation in this matter was determined to be of high-greater gravity.

  Upon consideration of the gravity of the violation, RoadSafe’s size, history and good faith, OSHA’s proposed penalty is appropriate, and the Court assesses a penalty in the amount of $12,675 for Item 2 of the Citation as amended.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is ORDERED that:

AFFIRMED and a penalty in the amount of $12,675 is assessed.

SO ORDERED.        

     /s/        

    Sharon D. Calhoun

Dated: September 30, 2019     Administrative Law Judge

     Washington, DC

1 During the hearing, raised pavement markers were referred to as markers, reflectors or buttons (Tr. 76).

2 The Citation originally issued alleged violations of the standards found at §§ 1926.601(b)(2)(ii) and 1926.601(b)(8), proposing penalties in the amount of $12,675 for each alleged violation.

3 Commission Rule 102, 29 C.F.R § 2200.102, provides the Secretary may withdraw a citation "at any stage of a proceeding."  “[T]he Secretary's decision to withdraw a citation against an employer under the Act is not reviewable by the Commission.”  Cuyahoga Valley Railway Co. v. United Transportation Union 474 U.S. 3, 7 (1985).  The Court acknowledges the Secretary's withdrawal disposes of Item 1.

4 At the hearing, Exhibit J-1 was modified to exclude language that Item 2 was being amended to allege §5(a)(1) in the alternative.

5 Thermoplastic chemical was referred to at the hearing as bituminous tar adhesive, bituminous material or adhesive. It has to be heated to 300 to 340 degrees Fahrenheit to achieve flowable status to install the reflectors (Tr. 315). A melting machine is transported on the vehicles to keep the bituminous tar adhesive at the correct temperature (Tr. 50).

6 At the time of the hearing, the Foreman had been employed by Roadsafe for ten years, nine of which as Foreman. He has twenty years of experience in road construction (Tr. 103, 104, 153).

7 This same crew minus the Foreman, earlier in the day, removed the defective road reflectors using two trucks with Employee #2 walking on the highway between the trucks to remove defective road reflectors (Tr. 106-107).

8 Employee #1 is the employee who died as a result of the accident on November 14, 2017.

9 Employee #2 had been employed by RoadSafe for one and one-half months at the time of the accident. He was terminated on November 21, 2017 (Tr. 33, 71). He testified his work at RoadSafe included driving the combination (a truck with a trailer or attachment) and since he was fairly new, he did a lot of “ground stuff” such as removing or applying buttons. Earlier on the day of the accident he and Employee #1 worked together, with employee #1 driving the truck and him walking behind chiseling the buttons and throwing them on the truck (Tr. 34, 37, 38, 46, 47, 48).

10 Employee #3 had been employed with RoadSafe for five years, has a commercial driver’s license and drives big trucks for the company. He has been in the construction business for ten years (Tr. 231).

11 The Foreman testified in a deposition unrelated to this OSHRC proceeding that he traveled between 10 and 12 miles per hour during this type of process. In the instant case, he did not recall that prior testimony (Tr. 115, 117).

12 CSHO Jacob has been employed with OSHA for four years and his job duties include conducting construction and general industry inspections and incident investigations (Tr. 176). Prior to his employment with OSHA, CSHO Jacobs was a civilian safety specialist with the United States Marine Corps for ten years. His job duties included conducting ship inspections for safety and health and he formulated several safety and health programs (Tr. 177).

13 In November 2017, Mr. Thompson was Vice President of Operations for RoadSafe, and was in charge of the safety compliance department handling investigations. He ran the fleet department and maintained the safety standards with the DOT. He also was responsible for the operational excellence campaigns to improve quality of service and safety (Tr. 248-249).