The Ruhlin Company

Plain-English summary

Ruhlin was widening a highway and had established a coned work zone next to an open traffic lane. OSHA cited the company because nine employees inside the work zone were not wearing high-visibility vests. The Commission held that 29 C.F.R. § 1926.95(a) did not cover warning garments because the listed protective equipment acts as a barrier or shield rather than as a visual signal. It also held that the general-duty alternative was not preempted by advisory traffic-control guidance. However, the Commission found Ruhlin lacked fair notice of a mandatory general-duty obligation because the relevant guidance said workers “should,” rather than must, wear high-visibility clothing. The Commission vacated the citation and the judge's $2,000 penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1926.95(a)
• Outcome: The Commission vacated both the PPE allegation and the alternative general-duty allegation.
• Key point: Advisory language recommending high-visibility clothing did not give fair notice of a mandatory general-duty requirement for non-flagger construction workers.

Full text (OSHRC public release)

The Ruhlin Company, Docket No. 04-2049

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 04-2049

THE
RUHLIN COMPANY,

Respondent.

APPEARANCES:

Howard M. Radzely, Solicitor of Labor; Joseph M. Woodward,
Associate Solicitor for Occupational Safety and Health; Michael P. Doyle,
Counsel for Appellate Litigation; Daniel J. Mick, Counsel for Regional Trial
Litigation; Ronald Gottlieb, Attorney; U.S. Department of Labor, Washington, DC

For
the Complainant

Tod T. Morrow, Esq.; Buckingham Doolittle & Burroughs LLP;
Canton, OH

For
the Respondent

DECISION

Before:
RAILTON, Chairman; ROGERS and THOMPSON, Commissioners.

BY RAILTON,
Chairman; THOMPSON, Commissioner:

Before
the Commission on review is a decision by Administrative Law Judge Ken S.
Welsch, vacating a citation alleging a violation of 29 C.F.R. § 1926.95(a)—the
personal protective equipment (PPE) standard for the construction industry—and
affirming an alternative allegation of a violation under the general duty
clause, section 5(a)(1) of the Occupational Safety and Health Act (OSH Act), 29
U.S.C. § 654(a)(1). Under both items, the Secretary alleges that employees of
The Ruhlin Company (Ruhlin) failed to wear high-visibility vests while working
in or near oncoming highway traffic. For the reasons that follow, we vacate the
citation in its entirety.

Background

Ruhlin is a construction
management and heavy construction company based in Ohio. Ruhlin was the general
contractor on a construction project involving the expansion of a four-lane
highway in Akron, Ohio. Part of the project involved the replacement of a
section of the shoulder along the eastbound, right-hand lane of the highway in
order to create an additional traffic lane. Ruhlin established a work zone
extending approximately one-eighth of a mile along the eastbound shoulder before
beginning construction. The boundary of the work zone was marked by three-foot
high orange cones placed between the right and left eastbound lanes, closing the
right lane off to traffic. Ruhlin also placed an arrow board in front of the
work zone directing traffic to the left lane and informing drivers that the
speed limit in the work zone was thirty miles per hour, not the posted fifty
miles per hour.

On
September 30, 2004, a compliance officer (CO) from the Occupational Safety and
Health Administration (OSHA) inspected Ruhlin’s worksite. The CO observed
various vehicles entering and exiting, and maneuvering within, the work zone. He
also observed that nine Ruhlin employees working within the work zone were not
wearing high-visibility vests. Ruhlin made such vests available to both flaggers
and its other employees working within the work zone, but Ruhlin only required
its flaggers to wear the vests. Based on the failure of these employees to wear
the vests while working in or near oncoming traffic, the Secretary issued Ruhlin
a citation alleging a serious violation of § 1926.95(a). The Secretary
subsequently amended the citation to allege, in the alternative, a violation of
section 5(a)(1) of the OSH Act.

At
issue here is (1) whether the language of § 1926.95(a) encompasses
high-visibility vests; (2) whether, under Commission precedent, the
Secretary’s alleged section 5(a)(1) violation is preempted; and (3) whether
Ruhlin had fair notice that it must provide high-visibility vests to its
employees working within a highway construction work zone under section 5(a)(1)
of the OSH Act.

Discussion

I.Application of 29 C.F.R. §
1926.95(a)

We
first address the judge’s dismissal of the § 1926.95(a) item. The judge
concluded that “reflective warning vests”

were not protective equipment
within the meaning of § 1926.95(a) and that the standard did not apply to the
cited conditions. He reasoned that the standard only requires protective
equipment that provides an actual physical barrier between the potential hazard
and the employee. He concluded that “reflective warning vests” operate as a
warning signal in contrast to the specific forms of “protective equipment”
addressed by the other standards within Subpart E of 29 C.F.R. Part 1926.
The judge also concluded that the Secretary does not consider “high visibility
vests” or “warning vests” to be personal protective equipment because she
promulgated other standards requiring such equipment outside the provisions of

§ 1926.95(a).

In
determining whether the Secretary has met her burden of proving that a standard
applies, we first look to the language of the standard. See Oberdorfer Indus.
Inc. , 20 BNA OSHC 1321, 1328-29, 2002-04 CCH OSHD ¶ 32,697, p. 51,643
(No. 97-0469, 2003) (consolidated cases). Here, the Secretary argues on review
that § 1926.95(a) is ambiguous with regard to whether warning garments can
be considered PPE.

We agree that the language of

§ 1926.95(a) standing alone does not indicate whether “protective equipment”
includes high-visibility vests. We reach a similar conclusion in United
States Postal Service ( USPS ), OSHRC Docket No. 04-0316, a case
that we decide today as well. In USPS , we find that the phrase
“protective equipment” as used in 29 C.F.R. § 1910.132(a)—the general
industry counterpart to § 1926.95(a)—does not indicate whether it includes
reflective vests, another type of warning garment.

When
the language of the standard fails to provide an unambiguous meaning, we look to
the standard’s legislative history. See Oberdorfer Indus. Inc. , 20 BNA
OSHC at 1328-29, 2002-04 CCH OSHD at p. 51,643. The legislative history of §
1926.95(a) does not resolve the question of ambiguity with regard to warning
garments. In promulgating § 1926.95(a), the Secretary merely incorporated the
regulatory text of § 1910.132(a). See Incorporation of General
Industry Safety and Health Standards Applicable to Construction Work, 58
Fed. Reg. 35,076 (June 30, 1993). Section 1910.132(a), in turn, was based
on an existing federal standard and promulgated under section 6(a) of the OSH
Act, 29 U.S.C. § 655(a). See General Industry, 39 Fed. Reg. 23,502 (June 27, 1974). As
we discuss in USPS , nothing in the legislative history of
§ 1910.132(a) “directly and explicitly” indicates that, in promulgating
this regulation, the Secretary intended this PPE standard to include warning
garments, such as the high-visibility vests at issue in the case before us.
See Exxon Mobil Corp. v. Allapattah Servs. , 125 S. Ct. 2611, 2626-27
(2005) (in interpreting the meaning of a statute, the Court looked for a direct
and explicit statement in statute’s legislative history). Because the phrase
“protective equipment” is ambiguous and legislative history does not clarify the
Secretary’s intent in promulgating § 1926.95(a), we must evaluate whether
the Secretary’s interpretation of the phrase is reasonable. See Oberdorfer
Indus. Inc. , 20 BNA OSHC at 1329, 2002-04 CCH OSHD at p. 51,643.

In
assessing the reasonableness of the Secretary’s interpretation, we “tak[e] into
account such factors as the consistency with which the interpretation has been
applied, adequacy of notice to regulated parties, and the quality of the
Secretary’s elaboration of pertinent policy considerations.” See id. , 20
BNA OSHC at 1328-29, 2002-04 CCH OSHD at pp. 51,643-44 (citing Martin v.
OSHRC , 499 U.S. 144, 157-58 (1991)); Union Tank Car Co. , 18 BNA OSHC
1067, 1069, 1995-97 CCH OSHD ¶ 31,445, p. 44,472 (No. 96-0563, 1997); Martin
v. Am. Cyanamid Co. , 5 F.3d 140, 146 (6th Cir. 1993) (“[w]hether the
Secretary has consistently interpreted a regulation is a factor bearing on the
reasonableness of that interpretation”).

Here, we conclude that the
Secretary’s interpretation is not reasonable. As in USPS , an examination of the PPE
standard as a whole—in this case § 1926.95(a)—suggests that warning garments may
not be considered PPE.  Section 1926.95(a) ,
which is the general PPE provision for
Subpart E , requires that PPE be provided and used whenever it is
necessary to protect against hazards “capable of causing injury or impairment .
. .  through absorption, inhalation or physical contact.” The types of
protective equipment listed in the standard itself and in the sections that
follow it in Subpart E do not include equipment that “warns.”   C f.
Carlyle Compressor Co. , 683 F.2d 673,
675-76 (2d Cir. 1982) (finding that the Secretary could not reasonably interpret
“hazards such as” in 29 C.F.R. § 1910.212(a) to include hazards that are not
similar to those enumerated in the section). Rather, t he only
types of equipment identified are those that act as a barrier or shield. 
See 29 C.F.R. §§ 1926.96 (safety-toe footwear), .100
(protective helmets), .101 (ear protective devices), .102 (eye and face
protection equipment), .103 (respiratory protection), .104 (safety belts,
lifelines, and lanyards), .105 (safety nets), .106 (life jackets and buoyant
work vests). Moreover, as we note in USPS , where OSHA requires
the use of warning garments, OSHA specifically identifies them as such in the
standard.  See, e.g. , 29 C.F.R. §§ 1917.71(e) (requiring
marine terminal employees to wear high visibility vests), 1918.86(m) (requiring
cargo-handling personnel to wear high visibility vests), 1926.201(a) (requiring
flaggers in the construction industry to wear warning garments).  Thus,
OSHA’s failure to reference warning garments in § 1926.95(a) cuts against
finding that high-visibility vests are covered under that provision . See FTC v. Sun
Oil Co. , 371 U.S. 505 (1962) (when a term is specifically used in a
regulation but excluded in another, it should not be implied where
excluded) .

Additionally, we note that §
1926.201(a), which requires flaggers to wear “warning garments,” is located in
Subpart G of Part 1926—which pertains to “Signs, Signals, and Barricades”—rather
than Subpart E—which pertains to “Protective and Life Saving Equipment” and is
at issue in this case. Thus, the Secretary apparently considers a warning
garment a type of “signal” or “barricade” for those employees engaged in
flagging work, but considers the same garments to be PPE for all other
employees. If the Secretary intended for this internal inconsistency to exist in
Part 1926, she could have drafted § 1926.95(a) to specifically include warning
garments as PPE when she first promulgated the standard in 1993, or she could
have revised § 1926.95(a) in this manner when she amended § 1926.201(a) in 2002.
See Safety Standards for Signs, Signals, and Barricades, 67 Fed. Reg.
57,736 (Sept. 12, 2002). Her failure to do so strongly suggests that she never
intended to treat warning garments as PPE in any context under Part 1926. See
Erik K. Ho, 20 BNA OSHC 1361, 1376, 2002-04 CCH OSHD
¶ 32,692, pp.
51,585-86 (No. 98-1645, 2003) (consolidated) (in finding that Secretary’s
interpretation is not reasonable, noting that Secretary failed to draft or amend
language of standard in a manner that provided fair notice to the regulated
community), aff’d , 401 F.3d 355 (5th Cir. 2005).

Finally, we find that the
Secretary has failed to consistently interpret the PPE standard to include
high-visibility vests, and she has not adequately explained this inconsistency.
In a July 1984 letter from John B. Miles, Jr., Director of OSHA’s Directorate of
Field Operations, the Secretary explained that under 29 C.F.R. §
1926.28(a)

— OSHA’s then general PPE standard
for the construction industry—“high visibility vests would fall under the broad
definition of [PPE].” In reaching this conclusion, the Secretary noted that the
National Safety Council and the American National Standards Institute considered
high-visibility clothing to be PPE.

Then in a May 2004 letter from
Russell B. Swanson, the Director of OSHA’s Directorate of Construction, the
Secretary addressed whether “[c]onstruction employees working on highway/road
construction work zones” were required to wear “high-visibility apparel.” The
Secretary in the May 2004 letter explained that under
§ 1926.201(a),

such apparel is required for
certain flaggers. Noting that Subpart G of Part 1926 does not, otherwise,
“address the circumstances in which it is necessary to provide warning garments
to protect against the hazard posed by traffic,” the Secretary further
explained:

It
is well recognized in the construction industry that construction workers in
highway/road construction work zones need to be protected from traffic. The
MUTCD reflects industry practice with respect to identifying the types of
situations where these workers need high-visibility warning garments. In such
cases, Section 5(a)(1) requires the use of such garments.

Not
only are these two interpretative letters inconsistent, the May 2004 letter
effectively supersedes the July 1984 letter, thus removing the primary basis of
the § 1926.95(a) enforcement policy that the Secretary followed in this case. We
do not suggest that the Secretary may never change her point of view on a
particular issue. See Nuclear Energy Inst., Inc. v. EPA , 373 F.3d 1251,
1296 (D.C. Cir. 2004) (although “[a]n agency is free to discard precedents or
practices it no longer believes correct,” before doing so it must supply a
“reasoned analysis indicating that prior policies and standards are being
deliberately changed, not casually ignored”). Here, however, the Secretary
failed to elaborate her reasons for changing this policy. Instead, she tries to
explain away the May 2004 letter by noting that “it does not address the scope
of § 1926.95(a) or any of [her] prior pronouncements construing the phrase
‘personal protective equipment’ as including reflective vests.” While the May
2004 letter does not explicitly address these issues, its apparent message is
that section 5(a)(1), and not a specific standard, governs whether non-flaggers
in highway construction zones are required to wear high-visibility vests.
Consequently, the Secretary’s decision to identify high-visibility vests as PPE
required by § 1926.95(a) is a change of course that lacks a reasoned
analysis. See Oberdorfer Indus. Inc. , 20 BNA OSHC at 1329, 2002-04
CCH OSHD at pp. 51,643-44 (citing Greater Boston Television Co. v FCC ,
444 F.2d 841, 852 (D.C. Cir. 1970)).

As explained in USPS , however, the
most troubling aspect of the Secretary’s approach in this case is her attempt to
impose a warning clothing requirement under the guise of an interpretation in
order to avoid the statutory requirements for rulemaking, as set forth in
section 6 of the OSH Act, 29 U.S.C. § 655. In both the case before us and
USPS , the Secretary would “interpret” her PPE standards as imposing the
substantive requirement to use warning clothing. Given the history of the
construction PPE standard, as detailed in USPS , we must reject the
Secretary’s attempt to sidestep her obligation to proceed under the rulemaking
provisions of the OSH Act.

We
therefore conclude that the Secretary’s interpretation is unreasonable, and
affirm the judge’s decision to vacate the § 1926.95(a) item.

II.Alleged Violation
of Section 5(a)(1) of the OSH Act

The
judge concluded that an advisory (as opposed to a mandatory) standard in the
Manual on Uniform Traffic Control Devices (MUTCD)

did not preempt a citation under section 5(a)(1).
Reaching the merits, the judge found that Ruhlin violated section 5(a)(1) by not
requiring its employees who worked within the highway construction work zone to
wear high-visibility vests. We agree with the judge that the citation was not
preempted, but we vacate for lack of fair notice.

A.Preemption

Ruhlin argues that, based on the reasoning in A.
Prokosch & Sons Sheet Metal, Inc. ,
8 BNA OSHC 2077, 1980 CCH OSHD ¶
24,840 (No. 76-576, 1980) (consolidated cases) (“ Prokosch ”), section
6D.02 of the MUTCD (Millennium Edition) preempts a citation under section
5(a)(1). Section 6D.02 states that “workers close to the motor vehicle traveled
(sic) way should wear bright, highly-visible clothing.” Title 29 C.F.R. §
1926.200(g)(2), in turn, states that “[a]ll traffic control signs or devices
used for protection of construction workers shall conform to . . . Part VI of
the [MUTCD], Millennium Edition, December 2000, FHWA, which are incorporated by
reference.” Because § 1926.200(g)(2) incorporates Part VI of the MUTCD, Ruhlin
reasons that section 6D.02 governs whether its employees are required to wear
high-visibility vests. We disagree with Ruhlin’s reasoning.

At
issue in Prokosch was an ANSI standard made applicable via 29 C.F.R.
§ 1926.550(b)(2). Even though the ANSI standard was advisory and did not
require the employer to abate the cited hazard, the Commission held that it
preempted a citation under section 5(a)(1) because, as an incorporated standard,
it “represent[ed] the considered judgment of the Secretary, after receiving
input from safety experts and persons who will be affected by the standard[], of
the proper means to guard against particular hazards.” Prokosch , 8 BNA
OSHC at 2080-81, 1980 CCH OSHD at pp. 30,629-30. In response to Prokosch ,
the Secretary revised the relevant portion of 29 C.F.R. § 1926.31, the provision
outlining the process for incorporating standards, to read:

The standards of
agencies of the U.S. Government, and organizations which are not agencies of the
U.S. Government which are incorporated by reference in this part, have the same
force and effect as other standards in this part. Only the mandatory provisions
(i.e., provisions containing the word “shall” or other mandatory language) of
standards incorporated by reference are adopted as standards under the
Occupational Safety and Health Act.

See 29 CFR Parts 1910 and 1926 Standards
Improvement (Miscellaneous Changes) for General Industry and Construction
Standards, 63 Fed. Reg. 33,450, 33,462 (June 18, 1998) (“In order to address
[the issues raised in Prokosch ], the Agency is revising § 1926.31(a) to
clarify that only the mandatory requirements of incorporated consensus standards
are adopted as OSHA standards.”). We hold that because section 6D.02 is an
advisory, not a mandatory, standard in the MUTCD, the provision is not
incorporated as an OSHA standard via § 1926.200(g)(2) and therefore does not
preempt a citation under section 5(a)(1) of the OSH
Act.

B.Fair
notice

A
citation issued under section 5(a)(1) will be vacated if the Commission
determines that the employer lacks fair notice of what conduct is required.
See Southern Ohio Bldg. Sys., Inc. v. OSHRC , 649 F.2d 456, 460-61 (6th
Cir. 1981). In light of the interpretation that the Secretary provided in
the May 2004 letter, we find that Ruhlin lacked fair notice that it could have
an obligation under section 5(a)(1) to require its employees to wear
high-visibility vests. See Billeke-Tolosa v. Ashcroft , 385 F.3d 708, 711
(6th Cir. 2004) (“[t]he consistent application of an agency’s precedents, like
the consistent application of its regulations, serves a critical purpose: the
provision of fair notice to those subject to the agency’s decisions”). The
Secretary suggested in the May 2004 letter that, as to “[c]onstruction employees
working on highway/road construction work zones” who are not flaggers,
“[t]he MUTCD reflects industry practice with respect to identifying the types of
situations where these workers need high-visibility warning garments,” and “[i]n
such cases, Section 5(a)(1) requires the use of such garments.” However, section
6D.02 of the MUTCD states that “workers close to the motor vehicle traveled
(sic) way should wear bright, highly-visible clothing.” (Emphasis added.)
Because this provision uses optional and not mandatory language, Ruhlin could
have reasonably concluded that its employees were not in “the type of situation”
where high-visibility warning garments were needed and, therefore, it was not
required by section 5(a)(1) to use such garments. The language of the MUTCD is
consistent with the Secretary’s enforcement policy. According to her Field
Inspection Reference Manual (FIRM) at chapter III, section C.2.c.(3)(e),
“Section 5(a)(1) shall not be used to enforce ‘should’ standards.” See
Hackensack Steel Corp. , 20 BNA OSHC 1387, 1392, 2002-04 CCH OSHD ¶ 32,690,
p. 51,558 (No. 97-0755, 2003) (FIRM confers no substantive rights on employers
and does not bind the Secretary during litigation).

Under these circumstances, we find that Ruhlin could not
have been sufficiently apprised of a duty to require use of high-visibility
vests by employees other than flaggers. See Morrison-Knudsen Co./Yonkers
Contracting Co. , 16 BNA OSHC 1105, 1120, 1993-95 CCH OSHD
¶ 30,048, pp.
41,277-78 (No. 88-572, 1993) (citing cases “which indicate that section 5(a)(1)
may be inapplicable in certain limited circumstances, amounting to unfairness,
i.e. , where the Secretary has stated, or in a substantially clear way has
implied, that an existing applicable standard or body of standards cover the
hazard or hazards, and set forth the entire duty of employers and employees
engaged in the particular operations or activities presenting such hazards”);
cf. Southern Ohio Bldg. Sys., Inc. , 649 F.2d at 460-61 (noting
that an employer “‘could not have been sufficiently apprised of his potential
liability under the general duty clause for failing to erect a catch platform in
light of the language of [29 C.F.R. §] 1926.451(u)(3)’” (quoting and following
R. L. Sanders Roofing Co. v. OSHRC , 620 F.2d 97, 100 (5th Cir. 1980) (per
curiam))). We thus conclude that Ruhlin cannot be held liable under section
5(a)(1) of the OSH Act.

Order

Accordingly, we affirm the judge’s vacatur of the §
1926.95(a) item, but we reverse the judge’s affirmance of the section 5(a)(1)
item and thus vacate the citation in its entirety.

SO
ORDERED.

/s/___

W.
Scott Railton

Chairman

/s/________

Horace A. Thompson

Commissioner

Dated: November 20, 2006

ROGERS,
Commissioner, concurring:

While I concur
with my colleagues’ decision to vacate the citation in this case, I respectfully
disagree with their reasoning. I agree that the phrase “protective equipment,”
as used in 29 C.F.R. § 1926.95(a), is ambiguous. However, for reasons that
are fully articulated in my dissenting opinion in United States Postal
Service ( USPS ), OSHRC Docket No. 04-0316, I would conclude that the
Secretary’s interpretation of § 1926.95(a) in this case is reasonable. See
Martin v. OSHRC , 499 U.S. 144, 158-59 (1991) (“ CF & I ”). The
language of § 1926.95(a) and 29 C.F.R. § 1910.132(a)—the general industry
counterpart to § 1926.95(a)—is identical. Moreover, as my colleagues note,
the Secretary merely incorporated the regulatory text of § 1910.132(a) when
she promulgated § 1926.95(a). Thus, my analysis regarding the reasonableness of
the Secretary’s interpretation in USPS applies as well
here.

Nonetheless, I
would vacate the § 1926.95(a) citation due to lack of fair notice. In
USPS , I described the May 2004 interpretative letter issued by Russell B.
Swanson as “somewhat confusing and obtuse.” While the letter is not directly on
point to the interpretation of the cited standard, § 1926.95(a), it addresses
obligations of construction employers (specifically in the highway/road
construction context) and predates the inspection here by more than four months.
In this context, unlike in USPS , the letter goes directly to fair notice
and, in my view, served to deprive Ruhlin of fair notice that the cited standard
applied. However, because I would have otherwise found that § 1926.95(a),
as reasonably interpreted by the Secretary, is applicable to the cited
condition, I would not reach the Secretary’s alternative allegation under the
general duty clause, section 5(a)(1) of the OSH Act, 29 U.S.C. § 654(a)(1).

_/s/________

Thomasina V. Rogers

Commissioner

Dated: November 20,
2006

Secretary of Labor,

Complainant

v.

OSHRC
Docket No. 04-2049

Ruhlin Company ,

Respondent.

Appearances:

Mary
Anne Garvey, Esquire

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

Cleveland,
Ohio,

For
Complainant

Tod
T. Morrow, Esquire

Buckingham,
Doolittle & Burroughs

Canton,
Ohio,       

For
Respondent

Before: Administrative Law Judge Ken S.
Welsch

DECISION AND
ORDER

Ruhlin
Company, a heavy highway construction contractor, began widening a section of
Highway 224 in Akron, Ohio, on September 30, 2004. Ruhlin closed the outside
eastbound (right) lane to motorists, used orange cones to create a work zone,
and placed an arrow board to warn traffic of the road work and to reduce the
speed limit from 50 mph to 30 mph. Ruhlin’s employees working inside the work
zone were not required to wear reflective warning vests. As a result of an
inspection by the Occupational Safety and Health Administration (OSHA), Ruhlin
received a serious citation on October 25, 2004. Ruhlin timely contested the
citation.

The
serious citation alleges Ruhlin violated § 5(a)(1) of the Occupational Safety
and Health Act (Act) (item 1) for employees working/walking within the swing
radius of a backhoe machine; 29 C.F.R. § 1926.95(a) (item 2) for employees not
wearing personal protective equipment (reflective vests) while working in the
work zone; and 29 C.F.R. § 1926.100(a) (Item 3) for an employee working
under an excavator bucket without proper head protection. The citation proposes
a penalty of $3,000 for Items 1 and 2 and a penalty of $900 for Item 3.
The Secretary amended Item 2 regarding the alleged violation of §1926.95(a)
to plead in the alternative a violation of § 5(a)(1) of the Act.

The
hearing was held on May 11, 2005, in Akron, Ohio. The parties stipulated
jurisdiction and coverage (Tr. 4). The Secretary withdrew Items 1 and 3; leaving
Item 2, the failure to require reflective vests, at issue in this case (Tr. 3).

It
is undisputed Ruhlin does not require its employees to wear reflective warning
vests while working in a work zone established during highway construction work.
Ruhlin asserts that neither §1926.95(a) nor §5(a)(1) of the Act require the use
of such vests.

For
the reasons discussed, the alleged violation of §1926.95(a) is vacated. However,
the alternative alleged violation of § 5(a)(1) of the Act is
affirmed.

The
Inspection

Ruhlin
is engaged in the business of construction management and heavy highway
construction. Ruhlin has been in business since 1910. Its office is located in
Sharon Center, Ohio. Ruhlin employs approximately 80 full-time employees and 200
seasonal workers (Tr. 171-172, 186).

In
2004, the Ohio Department of Transportation contracted Ruhlin to widen and
improve a one mile section of Highway 224 in Akron, Ohio (Tr. 188, 197).
Highway 224 is a four-lane highway with two eastbound lanes and two westbound
lanes. The posted speed limit is 50 mph (Exh. R-3; Tr. 11, 45, 177).

Ruhlin
began the project on September 30, 2004, the day of OSHA’s inspection (Tr. 187).
It was a clear and sunny day with good visibility (Tr. 33, 36). Ruhlin started
work by replacing a section of the shoulder along the eastbound lane with
concrete for eventual use in re-routing traffic (Tr. 40, 187). To work on the
shoulder, Ruhlin’s crew established a work zone for approximately one-eighth of
a mile (Tr. 11, 31, 75). The work zone was designated by
3-foot high orange cones placed along the outside (right) lane, closing it off
to vehicular traffic (Exh. C-6; Tr. 32-33). The inside (left) lane remained open
to traffic. The work zone was approximately 11 feet wide (Tr. 11,
75). An arrow board
placed in front of the work zone directed traffic to the inside lane and
informed motorists that the speed limit was reduced to 30 mph (Tr. 32, 177).

At
approximately 12:30 p.m., Compliance Officer (CO) Jacko Vermillion while driving
along Highway 224, observed nine employees of Ruhlin including project foreman
Mike Adelman, working
in the work zone without wearing reflective vests. The nine employees
were wearing regular
work clothing. CO
Vermillion saw only one Ruhlin employee and two employees of the City of Akron
wearing reflective vests. After parking his car, Vermillion initiated the OSHA
inspection (Exh. C-5 thru C-11; Tr. 12, 14, 16, 18-19, 27, 73). The inspection
took less than one hour (Tr. 36).

During
the inspection, the employees were not observed outside the work zone without
vests (Exhs. C-7 thru C-11; Tr. 54). Once, CO Vermillion saw foreman Adelman
remove and replace an orange cone to allow a concrete truck to enter the work
zone (Exhs. C-12, C-13; Tr. 17). Pickup trucks and a dump truck were also seen
inside the work zone (Tr. 76). Foreman Adelman told Vermillion that Ruhlin had
vests on site but the employees had not put them on that morning because they
were in a hurry (Tr. 18). Adelman retrieved several vests from his truck for the
employees to wear (Tr. 19).

As
a result of Vermillion’s inspection, Ruhlin received the serious citation for
violation of § 1926.95(a) for failing to require employees to wear reflective
warning vests. The Secretary amended the citation to include in the alternative,
a violation of § 5(a)(1) of the Act based on the same allegation.

Discussion

The
parties agree Ruhlin’s employees were not wearing reflective vests during the
OSHA’s inspection and Ruhlin did not require them to wear the vests in the
designated work zone. Ruhlin’s policy only requires flaggers to wear reflective
vests for highway projects (Tr. 175). Although not required,
employees are allowed to wear vests which Ruhlin will provide or the employees
could use their own (Tr. 175, 190). In this case, Ruhlin’s project foreman
retrieved several vests from his truck and some employees had their own (Exh.
C-10, Tr. 18, 22). According to CO Vermillion, Ruhlin’s employees generally wear reflective vests
while in the work zone (Tr. 42).

The
Secretary does not the dispute that the placement of orange cones and an arrow
board establishes a work zone for highway construction and such signage was
appropriate. Also, there is no evidence Ruhlin’s employees at any time were
outside the work zone without wearing reflective vests (Tr. 54).

At
issue in this case is whether Ruhlin is required to have its employees wear
reflective vests working in the work zone by § 1926.95(a) or § 5(a)(1) of the
Act .

A.
Applicability of §
1926.95(a)

Section
1926.95(a) provides:

Protective equipment, including
personal protective equipment for eyes, face, head, and extremities, protective
clothing, respiratory devices, and protective shields and barriers, shall be
provided, used, and maintained in a sanitary and reliable condition wherever it
is necessary by reason of hazards of processes or environment, chemical hazards,
radiological hazards, or mechanical irritants encountered in a manner capable of
causing injury or impairment in the function of any part of the body through
absorption, inhalation or physical contact.

In
order to establish a violation of a safety standard such as § 1926.95(a), the
Secretary has the burden of proving, among other elements, that the cited
standard is applicable to the conditions and work performed by the
employer.

Atlantic Battery Co., 16
BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Judge
Simko in AAA Delivery Services, Inc ., 2002 CCH OSHD 32,673 (No. 02-923,
2003), addressed the application of § 1910.132(a)

, to not requiring reflective
vests by newspaper vendors at a busy intersection. Judge Simko found
§ 1910.132(a)
did not apply because a reflective vest was not protective equipment within the
meaning of the standard. The standard requires protective equipment which
provides an actual physical barrier between the potential hazard and the
employee. Reflective vests operate as a warning signal to others and not as a
barrier or shield. The Review Commission by decision
dated September 1, 2005, also vacated citation but on other grounds.
The Commission found that the Secretary failed to establish that AAA was the
employer of the vendors. Commission did not address the application of
§ 1910.132(a) .
The court agrees with Judge Simko’s analysis and applies it to this case under
§ 1926.95(a).

Unlike
§ 1910.132(a),
§ 1926.95(a) is
located in OSHA’s construction standards under Subpart E entitled Personal
Protective and Life Saving Equipment . The standard requires an employer to
provide appropriate protective equipment including personal protective equipment
to its employees based on the nature of the hazards in the workplace. The
standard does not define “protective equipment” or “personal protective
equipment.” Therefore, the words are given their most common sense definition
when viewed in the context of the standard. Globe Industries , 10 BNA OSHC
1596 (No. 77-4313, 1982).

The
dictionary defines “protective” as “affording or serving as a safeguard,”
“providing a defense or shelter against danger or harm,” and “tending to
shield.” Webster’s Third New International Dictionary.

This
definition of “protective” as a guard or shield is reflected by the specific
forms of “protective equipment” addressed by the other standards within Subpart
E. Such protective equipment includes safety-toe footwear, helmets, ear
protection devices, eye and face protective equipment, respiratory protection,
safety belts, lifelines, lanyards, safety nets, and life jackets, if working
over or near water. See § 1926.96 - § 1926.106 . The common factor
among these various types of protective equipment discussed in Subpart E is they
provide actual physical protection or barrier between the potential hazard and
the employee. None of the protective equipment identified in Subpart E operates
solely as a warning garment, as in the case of reflective vests. The protection
offered by a reflective vest is as a visual warning. The wearing of a vest will
do nothing to reduce or prevent the impact on the employee if struck by a
vehicle. Reflective
vests lack the guarding or shielding quality of the protective equipment
required by § 1926.95(a). Reflective vests or similar
warning equipment is not addressed in Subpart E.

Reflective
vests are referenced in Subpart G, Signs, Signals, and Barricades .
Section 1926.201(a),
under Subpart G,
provides:

Flaggers. Signaling by flaggers
and the use of the flaggers, including warning garments worn by flaggers shall
conform to Part VI of the Manual on Uniform Traffic Control Devices, (1988
Edition, Revision 3 or the Millennium Edition), which are incorporated by
reference in § 1926.200(g)(2).

It
is noted that §
1926.201(a) uses the term “warning garment” as opposed to reflective vests.
Also, this section was amended in April 2002, but it continued to reference
“warning garment” and its limitation to flaggers.

By amending Subpart G in 2002, the
Secretary showed her intent on keeping the warning garment requirements in
Subpart G rather than relocate them to the “protective equipment” provisions of
Subpart E.

Also,
it is noted the Secretary has promulgated standards requiring “high visibility
vests” or “warning vests” for employees who perform excavation work exposed to
vehicular traffic [ 29 C.F.R. §1926.651(d)], work at marine terminals [29 C.F.R.
§1917.71(e)], or perform cargo unloading work [29 C.F.R. § 1918.86(m)]. Thus,
the Secretary has chosen to place the standards requiring vests or warning
garments in standards outside the provisions of § 1926.95(a). She has not
considered vests or warning garments as personal protective equipment.

The
Review Commission and administrative law judges have discussed reflective vests
as a type of protective equipment in several cases. In Farrens Tree Sugeons,
Inc. , 15 BNA OSHC 1793 (No. 90-998, 1992), the Commission vacated a
violation of § 1910.132(a) for not requiring vests on the basis of lack of
employer knowledge. The Commission did not specifically address the issue of
applicability. In National Engineering & Contracting Co. , 1995-97 CCH
OSHD 31,023 (No. 94-2787, 1996) and Nelson Tree Service, Inc., 19 BNA
OSHC 1982 (No. 00-1130, 2001), violations of § 1926.95(a) and § 1910.132(a) were
vacated by administrative law judges on the basis that orange cones,
barrels, signs,
flashing lights made vests redundant and were designed to prevent the same
hazard.

It
is noted OSHA’s standard interpretation issued May 11, 2004, recognizes
§ 1926.95(a) may not apply. The interpretation states:

[it]
is well recognized in the construction industry that construction workers in
highway/road construction work zones need to be protected from traffic. The
MUTCD

reflects industry practice with
respect to identifying the types of situations where these workers need high
visibility warning garments. In such cases, Section 5(a)(1) requires the use of
such garments. (Exh. C-15).

The
alleged violation of § 1926.95(a) is vacated. The Secretary failed to establish
in this case the applicability of § 1926.95(a) in requiring the use of
reflective warning vests by employees working in a designated work zone.

B. Applicability of § 5(a)(1) of the
Act

Section
5(a)(1) of the Act, referred to as the general duty clause,
provides:

Each
employer -

(1)
shall furnish to each of his employees 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.

A
citation alleging a violation of § 5(a)(1) of the Act is inappropriate when a
specific standard applies to the facts. In this case, it is determined that §
1926.95(a) does not require reflective vests as a warning device in highway
construction work. Also, § 1926.201(a) which requires flaggers to wear vests, is
not applicable to employees in the work zone.

Ruhlin
argues § 5(a)(1) cannot be cited because OSHA’s Field Inspection Reference
Manual (FIRM) prohibits the use of § 5(a)(1) to enforce an advisory standard.
According to the FIRM, CPL 2.103, Section 7 - Chapter III, C.2.c. “ Violations
of the General Duty Clause ” under C.2.c.(3) entitled “ Limitations on Use
of the General Duty Clause, ” it states:

Section 5(a)(1) shall not be used
to enforce ‘should’ standards. (Exh. R-5).

The
citation at issue refers to the MUTCD, section 6D.02. Section 6D.02 which is
incorporated by 29 C.F.R. § 1926.200, states “workers close to the motor vehicle
traveled way should wear bright, highly visible clothing” (Exh. R-2,
emphasis added). According to the MUTCD, the verb “should” is characterized as
guidance which is recommended , but not mandatory (Exh. R-2,
page 1-3). Also, § 1926.31(a) provides that only mandatory provisions are
incorporated and adopted as standards. Also, see A. Prokosch & Sons Sheet
Metal, Inc. , 8 BNA OSHC 2077, 2082 (No. 76-406, 1980) ( “a hazard addressed by an advisory
standard cannot be the subject of a citation under section 5(a)(1)”).

In
this case, the Secretary’s reference to the MUTCD was to show the industry
recognition of a hazard as required to establish a § 5(a)(1) violation. See OSHA Standard
Interpretation issued May 11, 2004 . It is noted that the focus of the MUTCD
is temporary traffic control and not a manual for worker safety (Tr. 152). Also,
OSHA’s internal documents and interpretations such as the FIRM do not have the
force and effect of law and do not confer procedural or substantive rights or
duties on employers. Caterpillar, Inc. , 15 BNA OSHC 2153, 2173 (No.
87-0922, 1993). Ruhlin’s argument that OSHA cannot cite § 5(a)(1) is rejected.

In
order to prove a violation of §5(a)(1) of the Act, the Secretary must show:

(1)
there was an activity or condition in the employer's workplace that constituted
a hazard to employees, (2) either the cited employer or its industry recognized
that the condition or activity was hazardous, (3) the hazard was causing or
likely to cause death or serious physical harm, and (4) there were feasible
means to eliminate the hazard or materially reduce it.

Waldon Healthcare Ctr ., 16
BNA OSHC 1052, 1058 (No. 89-2804, 1993).

1. The Hazard

As
the first element in establishing a § 5(a)(1) violation, a “hazard” is defined
in terms of conditions or practices deemed unsafe over which an employer can
reasonably be expected to exercise control. Morrison-Knudson Co./Yonkers
Contracting Co., A Joint Venture, 16 BNA OSHC 1105, 1121-1122 (No. 88-572,
1993). “[T]he existence of a hazard is established if the hazardous incident can
occur under other than a freakish or utterly implausible concurrence of
circumstances.” 16 BNA OSHA at 1060.

The
hazard in this case is characterized as a struck-by hazard (Tr. 44, 144). With
one lane remaining open to motorists adjacent to the work zone and the number of
construction vehicles entering and exiting the work zone, the record establishes
the presence of a struck-by hazard (Exhs. C-9A and 9B; Tr. 76-77, 80).

Ruhlin’s
OSHA 300 log, which reflects employees’ lost time due to accidents and illness,
shows its employees on highway projects have been struck by vehicles (Tr. 179,
192). Ruhlin’s safety director Jeffery Peecook recalled two incidents where the
employees were wearing vests. One employee was struck by an automobile and other
struck by a construction vehicle (Tr. 192-193). He was aware other companies
have had employees injured by vehicles in the work zone (Tr. 193). Mark Potnick,
director of labor relations for the Ohio Contractors Association, testified to
the existence of a struck-by hazard to employees from highway motorists as wells
as construction vehicles in the work zone (Tr. 218-220).

A
struck-by hazard is also established by OSHA’s CPL 04-00, October 1, 2004, which
referenced an NIOSH study finding that 1 of 3 workers killed in construction
work zones were struck-by motorists (mostly truck related), (Exh. C-1). A
DHHS/NIOSH document (Pub. No. 2001-128) reported that for the period of
1992-1998, 492 fatalities occurred in highway or street construction work zones.
Of these fatalities, 318 or approximately 70 percent involved a worker on foot
struck by a vehicle. The worker was as likely to be struck by a construction
vehicle (154 fatalities, primarily from backing vehicles) as by a passing
traffic vehicle (152 fatalities) (Exh. C-18, pp. 12-13; Tr. 121). In Region V,
which includes Ohio, OSHA found that a majority of the 54 fatalities in the 5
years prior to October 2004, of employees working on road construction sites
were the result of employees struck-by highway and construction vehicles (Exh.
C-1).

The
record establishes the existence of a struck-by hazard to employees in the work
zone.

2. The Hazard
   was Recognized

A
hazard is deemed “recognized” when the
potential danger of a condition or activity is either actually known to the
particular employer or generally known in the industry. Pepperidge Farm,
Inc., 117 BNA OSHC 1993 (No. 89-0265, 1997).

As
discussed, the record in this case establishes employees’ exposure in the work
zone to automobile traffic and construction vehicles is a recognized hazard by
Ruhlin and the highway construction industry.

3. A Hazard
   Likely to Cause Death or Serious Injury

There
can also be no dispute the struck-by hazard from an automobile or a truck could
cause death or serious injury to an employee (Tr. 134-135).

4.
Feasibility of Means to Eliminate or Reduce the
Hazard

As
the final element in establishing a §5(a)(1) violation, the Secretary must show
the proposed abatement will “eliminate or materially reduce the hazard.” Cardinal Operating Company , 11 BNA OSHC
1675 (No. 80-1500, 1983). In this case, OSHA’s proposed abatement is the use of
reflective warning vests by employees in the work zone.

Although
not a company requirement, Ruhlin encourages employees to wear reflective vests
within the work zone and even provides them (Tr. 175, 190). Ruhlin’s safety
director agrees “it’s probably a good idea for Ruhlin employees to wear vests”
(Tr. 182). He typically wears a vest on road construction sites (Tr.
184).

The
record fails to establish, however, the reflective vests will eliminate or
materially reduce the employees’ risk of severe injury from highway motorists
who unexpectedly enter the work zone. The work zone with 3-foot high orange
cones and signage already alerts motorists to the road side construction work.
The additional warning provided by the reflective vests may provide another
level of warning. But, the Secretary fails to show vests in conjunction with
cones and signage would materially reduce the employee’s risk to the struck by
hazard from motorists. As Judge Brady observed in National Engineering &
Contracting Co. , 1995-97 CCH OSHD 31,023 (No. 94-2787, 1996), “a motorist
who could not control an automobile well enough to avoid hitting orange barrels
would not be able to stop for a reflectorized vest.” In this case, there is no
evidence Ruhlin’s employees went outside the work zone without vests (Tr. 54).
Also, it is noted on the day of the inspection, the weather was clear and sunny.
The visibility was good (Tr. 33, 36).

On
the other hand, with regard to the employees’ exposure to construction vehicles
already inside the work zone, vests would be the only means of warning drivers
of construction vehicles of the location of employees and afford some protection
to employees. CO Vermillion observed, “there was traffic in the work zone that
they were working in, such as concrete trucks, dump trucks and pick-up trucks”
(Tr. 53). He also saw a backhoe in the zone (Tr. 77). The dump truck was seen
entering and exiting the work zone (Tr. 80).

Dr.
James Sayer,

who testified for the Secretary as
an expert in pedestrian conspicuity and the design of high visibility garments,
opined that employees working in a work zone are exposed to a struck-by hazard.
He testified all workers in the zone should wear high visibility safety apparel
at all times because they “dramatically reduce the likelihood of a struck-by
injury” (Tr. 117, 119, 122, 130). In support of his opinions, Dr. Sayer relied
upon a NIOSH document which showed 70% of all road worker fatalities were
associated with moving vehicles in the work zone and a document by the American
Road and Transportation Builders Association (ARTBA) which identified the
frequency workers are struck-by vehicles within the work zone ((Exh. C-18;
Tr.121-122, 128).

Dr.
Sayer considered reflective vests important in reducing the struck-by hazards
posed by both highway motorists and construction vehicles. However, unlike
orange cones which warn motorists, there is no means of warning drivers of
construction vehicles already inside the work zone of the presence of employees.
The number of fatalities caused by highway motorists (152) is the same as caused
by construction vehicles (154) (Exh. C-18). Dr. Sayer opined that a high
visibility garment such as a vest reduces the likelihood of struck-by injury or
fatality because it makes the worker more conspicuous so that the driver can
more easily detect the worker and avoid a collision (Exh. C-18; Tr. 130-131).
Unlike the cones which warn highway motorists of the work zone, there is nothing
in the zone which warns the driver of a construction vehicle, if employees are
in front or behind his vehicle. A highway construction zone is more confined,
only 11 feet wide in this case, and employees are working in close proximity to
the construction vehicles (Exhs. C-5, C-6, C-10).

The
record in this case establishes that reflective vests will materially reduce the
struck-by hazard to workers in the work zone from construction vehicles. Such
warning is not provided by the orange cones and appropriate signage.

A
serious violation of § 5(a)(1) is established. If an accident occurred and an
employer is struck by a construction vehicle in the work zone, the resulting
injury would likely be broken bones or death.

Penalty
Determination

In
determining an appropriate penalty, consideration of the size of the employer’s
business, history of the employer’s previous violations, the employer’s good
faith, and the gravity of the violation is required. Gravity is the principal
factor.

With
80 salaried employees and 200 seasonal employees, Ruhlin is given no credit for
size (Tr. 186). Ruhlin is also not given credit for history because it has
received serious citations within the past three years (Tr. 79). Ruhlin does
receive credit for good faith because the employees generally wore vests, and
Ruhlin provided vests to the work site. Also, the work zones had the appropriate
signage and cones.

A
penalty of $2,000 is reasonable for violation of § 5(a)(1) of the Act. There
were nine Ruhlin employees not wearing reflective vests including the project
foreman. During the inspection, Vermillion observed a number of construction
vehicles working inside the work zone.

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 serious
Citation:

1.           Item
1, alleged serious violation of §5(a)(1) of the Act, is withdrawn by the
Secretary.

2.
Item 2, alleged serious violation of 29 C.F.R. §1926.95(a) is vacated. The
alternative violation of § 5(a)(1) of the Act, is affirmed and a penalty of
$2,000 is assessed.

3.           Item
3, alleged serious violation of 29 C.F.R. § 1926.100(a), is withdrawn by the

Secretary.  

SO
ORDERED.  

/S/
KEN S. WELSCH

Date:       October
17,
2005                                                                          Judge Ken S. Welsch