Sema Construction, Inc.

Plain-English summary

SEMA Construction was doing bridge demolition work at a job site in Colorado Springs, Colorado. In September 2000 a laborer helping load scrap metal was struck and seriously injured when a long piece of box tubing being moved by an excavator unexpectedly kicked free of the bucket and was propelled sideways toward the crew. OSHA issued one serious citation under the training standard, 29 C.F.R. § 1926.21(b)(2), arguing SEMA failed to instruct workers to keep a safe distance from the excavator. The judge found the evidence showed SEMA had in fact trained employees to stay outside the machine's swing radius and out from under suspended loads, and the injured worker was standing 40 or more feet away, well beyond that radius. Because a reasonably prudent employer would not have anticipated a load being catapulted that far, the Secretary did not prove a training failure. The citation was vacated and no penalty was imposed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2)
• Outcome: Serious citation 1, item 1 vacated; no penalty.
• Key point: An employer is not liable for failing to train against a freak hazard, here a load unexpectedly propelled outward, that a reasonably prudent employer could not have anticipated.

Full text (OSHRC public release)

                                             United States of America
            OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                           1244 Speer Boulevard, Room 250
                                            Denver, Colorado 80204-3582

SECRETARY OF LABOR,
Complainant,

                          v.                               OSHRC DOCKET NO. 01-0084

SEMA CONSTRUCTION, INC.,
Respondent.

APPEARANCES:

      For the Complainant:
               Andrea Christensen Luby, Esq., Leigh Burleson, Esq., Office of the Solicitor, U.S. Department of Labor,
               Kansas City, Missouri

      For the Respondent:
               David L. Zwisler, Esq., John L. Reiter, Esq., Mountain States Employers Council, Inc., Denver, Colorado

Before: Administrative Law Judge: Robert A. Yetman

                                         DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the "Act").
At all times relevant to this action, Respondent, SEMA Construction, Inc. (SEMA), maintained
a place of business at I-25 and Uinta, Colorado Springs, Colorado, where it was engaged in
construction. Respondent admits it is an employer engaged in a business affecting commerce and is
subject to the requirements of the Act.
On September 15, 2000, one of SEMA's employees was injured in an accident at its Colorado
Springs work site. Following that accident, on September 18, the Occupational Safety and Health
Administration (OSHA) conducted an inspection of the work site. As a result of the inspection, OSHA
issued a serious citation to SEMA, alleging one violation of the Act together with a proposed penalty.
By filing a timely notice of contest SEMA brought this proceeding before the Occupational Safety and
Health Review Commission (Commission).
On May 8, 2001, a hearing was held in Denver, Colorado. The parties have submitted briefs on
the issues and this matter is ready for disposition.
Alleged Violation
Serious citation 1, item 1 alleges:
29 CFR 1926.21(b)(2): The employer did not instruct each employee in the recognition
and avoidance of unsafe condition(s) and the regulation(s) applicable to his work
environment to control or eliminate any hazard(s) or other exposure to illness or injury:

    (a) At the I-25 and Uintah Bridge job site, Colorado Springs, Colorado: SEMA
    Construction did not ensure that employees were adequately instructed in the
    recognition and avoidance of hazards associated with working near a hydraulic
    excavator (Caterpillar Model 315BL). On September 15, 2000 an employee engaged in
    clearing debris from the job side was struck and seriously injured by a load being moved
    by the excavator.

Facts
On September 15, 2000, Keith Segura, a heavy equipment operator for SEMA, was acting as
lead man for a crew loading an iron dumpster on the Colorado Springs work site (Tr. 25-26, 128-30).
Segura testified that, using a 315 Caterpillar track hoe, he nearly filled the dumpster full of scrap iron
from a bridge demolition (Tr. 130-31). A crew of laborers was then assigned to help him manually
"top off" the dumpster before it was hauled off to a scrap yard (Tr. 40, 42, 131-32). Segura used the
bucket of the track hoe to scratch up the ground and expose buried rebar, which the laborers stacked by
hand in the dumpster (Tr. 37-38, 132-33). Segura testified that the ground crew consisted of three
laborers, Dave Bustillos, Dave Long and Juan Peinado (Tr. 39, 133). At some point, he used the
bucket and "thumb" of the track hoe to pick up a long section (approximately 24-40 feet) of 4" x 4"
hollow sheet metal box tubing, which had been a bridge guard rail (Tr. 19-20, 23, 49, 141, 153; Exh.
C-4, C-5, C-9). He intended to move the tubing out of the way in a direction away from the laborers
and continue to scrape the ground for small pieces of metal (Tr. 154-55). Segura testified that, before
making the pick, he turned to see where the laborers were (Tr. 143). All three were approximately 40
feet from the excavator, and 10-15 feet from the dumpster which was located behind and to the right of
the track hoe (Tr. 140, 143; Exh. C-10). Segura drew the box tubing towards the track hoe, lifting it
approximately 15-20 feet in the air. He was about to swing the load to a staging area away from the
dumpster area and the laborers, when the load broke free and "sprung" from the bucket, striking and
injuring Juan Peinado (Tr. 35, 43, 81, 142-43, 154). Segura testified that the load did not fall straight
down. He had never known an item to kick out of the bucket as it did on that day (Tr. 156-57).
Segura testified that he had been instructed during training sessions that employees should
stand a safe distance from the excavator, but was never told exactly how many feet from the excavator
was considered safe (Tr. 145-46). Moreover, he had been instructed during Respondent's weekly
safety meetings that employees should stay clear of the swing radius of the track hoe approximately 25
feet. As lead man, Segura instructed employees to stay clear of the excavator's
swing radius when they were on his blind side (Tr. 149). He never told the laborers to keep a specific
distance from the track hoe (Tr. 148). Segura stated that immediately prior to the accident he told the
laborers to move over near the dumpster until he moved the last piece of tubing (Tr. 154-55).
David Bustillos, through an interpreter, confirmed that Juan Peinado was not standing directly
under the excavator's load when the accident occurred. He estimated that he and Peinado were
standing approximately 40-45 feet from the excavator bucket when he saw the beam began to fall.
Bustillos ran, but Peinado was struck by the falling load (Tr. 108, 115-18). Bustillos testified that
Mark Grife told him, during a regular Monday safety meeting, to be careful around the equipment, and
not to stand beneath suspended loads (Tr. 110, 124). Bustillos's could not recall when he received this
instruction, though he stated it had been some time ago (Tr. 122, 124-25). On cross-examination,
Bustillos recalled that he had been instructed about the excavator during an earlier phase of the project,
when the bucket was being used to move boulders (Tr. 125-26). Bustillos believed that the distance he
was to maintain from the excavator depended upon the height of the load being moved (Tr. 126).
Bill Wright, the OSHA Compliance Officer (CO) testified, based upon interviews with SEMA
employees and on his September 18, 2000 examination of SEMA's work site, that he estimated
Peinado, the injured employee, was standing "near" the area where the track hoe's load, i.e., the box
piping, was lifted overhead when the accident occurred (Tr. 29-30 ; Exh. C-2). However, employee
David Long stated Peinado was not standing directly under the overhead load when it fell (Tr. 36-37,
82). Long told Wright that the box piping seemed to catch or snag on something, and then deflect
about three feet to hit Peinado (Tr. 36). Wright did not measure either the distance between the
excavator and the spot where Peinado was struck, or between that spot and the dumpster (Tr. 33).
Although CO Wright testified that, during an interview, Mark Grife, one of the SEMA project
managers on the Colorado Springs site, stated that he never specifically instructed laborers about safety
around excavators (Tr. 13, 51), a Weekly Hazard Awareness and Recognition Training sheet, dated
June 19, 2000, indicates that moving equipment and overhead loads were addressed during at least one
regular safety meeting (Exh. C-8, p. 117). CO Wright also testified that David Long told him he was
trained by a previous employer to work around excavators, but did not received any training from
SEMA (Tr. 52, 89). Long told CO Wright that no one in management showed him a safe area to stand
while the excavator was making lifts (Tr. 60). Moreover, David Bustillos told the CO that he had
received no training with respect to working around the excavator (Tr. 88). Wright stated that he
specifically asked Keith Segura whether he ever received, or was present while any laborers received
training instructing them how far employees should stay from the excavator and its load; Segura told
him he had not (Tr. 52, 86-87).
Discussion
The cited standard provides:
The employer shall instruct each employee in the recognition and avoidance of unsafe
conditions and the regulations applicable to his work environment to control or
eliminate any hazards or other exposure to illness or injury.

    The Commission has held that:
    To prove a violation of §1926.21(b)(2), the Secretary must show that the cited employer
    failed to instruct employees on "(1) how to recognize and avoid the unsafe conditions
    which they may encounter on the job, and (2) the regulations applicable to those
    hazardous conditions." An employer's instructions must be "specific enough to advise
    employees of the hazards associated with their work and the ways to avoid them,"and
    modeled on the applicable OSHA requirements. [citations omitted]

O'Brien Concrete Pumping Inc., 18 BNA OSHC 2059, 2061, 2000 CCH OSHD ¶32,026 (No. 98-
0471, 2000). The employer must address those hazards a "reasonably prudent employer" would have
been aware of, and provide the instructions a reasonable employer would provide under the same
circumstances. Pressure Concrete Constr. Co. (Pressure Concrete), 15 BNA OSHC 2011, 1992 CCH
OSHD ¶29,902 (No. 90-2668, 1992).
The standard's requirements. The Secretary does not maintain that SEMA failed to instruct
its employees in regulations applicable to the hazardous conditions to which they were exposed.
Rather, Complainant argues that SEMA failed to give site specific instructions to its employees in the
means of avoiding the hazard posed by overhead loads which may fall from the Caterpillar track hoe.
Specifically, the Secretary alleges that SEMA failed to train its employees to keep an undefined safe
distance from the operation of the excavator. According to Complainant, adequate instructions should
have included a warning to avoid the swing radius of the excavator's bucket and load (Secretary's
Posthearing Brief, p. 10-11, 20). The Secretary's proposed instruction describes a zone of danger that
includes the entire area over which the track hoe is physically capable of moving a given overhead
load.
SEMA does not dispute that both overhead loads and the swinging boom of the track hoe pose
a hazard to employees. SEMA's defense in this matter implicitly acknowledges that moving loads over
employees with a track hoe is hazardous, and maintains that it trained its employees to remain out of
the swing radius of the excavator, and not to work under any suspended loads. In addition, SEMA
asserts that its lead man, Keith Segura, specifically instructed laborers working with him to stand in an
area away from the intended swing radius of his load. SEMA contends that its instruction was
adequate, and argues that Complainant did not prove that enhanced training would have prevented the
accident which triggered the citation (Respondent's Post-Hearing Brief, Argument ¶II, III).
Discussion
In order to establish that Respondent failed to comply with the aforesaid standard, the Secretary
must prove that (1) the standard applied, (2) the employer failed to comply with the terms of the
standard, (3) employees had access to the cited conditions and (4) the Respondent knew, or with the
exercise of reasonable diligence, could have known of the violative conditions, Astra Pharmaceutical
Products, Inc., 9 BNA OSHC 2126, 1981 CCH OSHC 25,578, aff'd 681 F.2d 69 (1st Cir. 1982);
Secretary of Labor v. Gary Concrete Products, 15 BNA OSHC 1051, 1052, 1991 CCH OSHD ¶29,344
(No. 86-1087, 1991); Carlisle Equip. Co. v. Secretary of Labor, 24 F3.d 790 (6th Cir. 1994). The
burden of establishing these elements rests with the Secretary of Labor. Moreover, the elements must
be established by a preponderance of the evidence. Armor Elevator Co., 1 BNA OSHC 1409, 1973-74
CCH OSHD ¶16,958 (Nos. 425 & 426, 1973). The Commission has defined "preponderance of the
evidence" as "that quantum of evidence which is sufficient to convince the trier of fact that the facts
asserted by a proponent are more probably true than false" Ultimate Distrib. Systems, Inc., 10 BNA
OSHC 1568, 1570, 1982 CCH OSHD ¶20,011 (No. 79-1269, 1982). Complainant relies heavily upon
out of court statements made to compliance officer Wright by Respondent's employees to carry its
burden of proof. However, many of the out of court "admissions" of employees Segura and Bustillos
were contradicted by those individuals during their testimony at the hearing in this matter. Only the
statements of employee Long to compliance officer Wright remain unchallenged in this record. Mr.
Long was not called as a witness by either party.
As acknowledged by Complainant in her post hearing memorandum, although out of court
employee statements are admissible pursuant to Rule 801(d)(2)(g)(A) FRCP, such statements
"inherently [have] less probative value than would the employees own testimony and [are] not
necessarily entitled to dispositive weight" Continental Electric Co. 13 BNA OSHC 2153, 2155, No.6
(1989). In Morrison-Knudsen, Inc., 13 BNA OSHC at 1124, the Commission stated:
When an out-of-court statement is introduced, the trier of fact has no opportunity to
assess the credibility of the person who made the statement and must therefore allow for
the possibility that the statement is exaggerated, incomplete, taken out of context, or
even false. Also, neither the other party nor the judge has a chance to cross-examine the
person who made the statement. The only person able to evaluate the statement's
credibility is the person who heard the statement and is testifying to its contents. These
considerations suggest that out-of-court statements can not always be taken at face
value."

   The testimony of employees Segura and Bustillos at the hearing supports the conclusion that

Respondent instructed its employees to refrain from working under suspended loads and to remain
outside the swing radius of operating heavy equipment. The remaining issue is whether Respondent
instructed its employees to avoid specific unsafe conditions present at the worksite; specifically,
hazards presented by lifting box tubing with an excavator. The evidence establishes that lead man
Segura instructed the laborers under his supervision to stand at a location that was 40-50 feet from the
excavator (Tr.126, 140) while he attempted to remove the box tubing from the immediate work area.
The swing radius of the machine, including the maximum extension of the boom was 25 feet (Tr.136,
137). It is clear that the laborers were instructed to stand at a distance beyond the swing radius of the
machine. Moreover, since Segura picked up the load and brought it in toward the body of the
excavator, the employees were not standing underneath the load (Tr.36-37, 82, 109, 143). For reasons
which are not on the record, the load unexpectedly kicked out from the bucket of the excavator and,
rather than falling straight down, was propelled in the direction of the employees.
As previously stated, the Commission has held that an employee must address those hazards
that a reasonably prudent employer would have been aware of and provide reasonable instruction to
employees to avoid those hazards. Pressure Concrete, supra. In this case, the Respondent was
required to inform employees of the danger of being struck by loads falling from the excavator and
how to avoid that hazard. It is reasonable to expect that a prudent employer, as in this case, would
instruct employees to stay outside the swing radius of the machine and out from under the load.
However, there is nothing in the record of this matter which supports the conclusion that a prudent
employer would anticipate that a load could be unexpectedly catapulted outward from the machine and
strike an employee located forty or more feet from the excavator.
In Precision Concrete Construction, 19 BNA OSHC 1404, 2001 CCH OSHD ¶32,035, (No.
99-0707, 2001), a case involving facts similar to the instant matter, the Commission concluded that the
employer had reasonably instructed employees to stay out of the zone of danger created by an overhead
concrete carrying bucket. However, the Respondent could not be held responsible for exposure to a
hazard created by the unanticipated movement of the bucket. The Commission stated:

   As to the circumstances of the accident itself, we find the evidence insufficient to show
   that the foreman could have anticipated [the employee] would be exposed to the hazard .
   . . [i]t was not shown that [Respondent] could have anticipated the bucket's movement
   over the employees. Since the Secretary has the burden of proving that the manner in
   which Precision conducted its pouring operations constituted a failure to exercise
   reasonable diligence, her failure to do that here requires our finding that knowledge has
   not been shown" (citations omitted).

Similarly, in this case the Secretary failed to establish that Respondent, by instructing employees to
stand forty or more feet from the excavator, failed to exercise reasonable diligence in protecting
employees from known or reasonably anticipated hazards at the worksite. Accordingly, the citation is
VACATED.
All findings of fact relevant and necessary to a determination of the contested issues have been
made above. Fed R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent
with this decision are DENIED.
ORDER

1. Serious citation 1, item 1, alleging violation of §1926.21(b)(2) is VACATED.

                                                   /s/
                                                   Robert A. Yetman
                                                   Judge, OSHRC
   

Dated: August 14, 2001