Thomas Industrial Coatings, Inc.

Plain-English summary

Thomas Industrial Coatings was painting an interstate overpass when OSHA cited alleged traffic-zone and aerial-lift hazards. The administrative law judge vacated the item alleging inadequate protection from traffic and the aerial-lift tie-off item. For the high-visibility clothing item, the judge found that the cited personal protective equipment standard did not apply, but affirmed the alternative general duty clause allegation and assessed a $3,000 penalty. After the Commission directed review of that item, the parties signed a settlement agreement and the Secretary withdrew it. The Commission approved the settlement and vacated the judge's disposition of the withdrawn item as moot.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1926.95(a); 29 C.F.R. § 1926.453(b)(2)(v)
• Outcome: The Commission approved the settlement, allowed withdrawal of the high-visibility clothing item, and vacated the judge's disposition of that item as moot.
• Key point: The settlement eliminated the only citation item under Commission review, including the judge's $3,000 disposition of that item.

Full text (OSHRC public release)

Thomas Industrial Coatings, Inc., Docket No. 05-1935

United States of America

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 05-1935

THOMAS INDUSTRIAL COATINGS, INC.,

Respondent.

FINAL ORDER

Thomas Industrial Coatings, Inc. filed a Petition for Discretionary Review regarding the
Administrative Law Judge’s disposition of Citation 1, Item 2 (Citation Item). The Commission
thereafter directed the case for review and issued a briefing notice.

The parties subsequently signed a Settlement Agreement that the Secretary has filed
together with the Secretary’s Request for a Final Order. The Secretary agrees to withdraw the
Citation Item, and does not oppose the request of Thomas Industrial Coatings, Inc. that the
Commission vacate as moot the Administrative Law Judge’s disposition of the Citation Item.

The Settlement Agreement is approved. Commission Rule 100, 29 C.F.R. § 2200.100. The
Secretary having withdrawn the Citation Item, the Commission vacates as moot the Administrative
Law Judge’s disposition of that item.

So ordered.

BY DIRECTION OF THE COMMISSION

Dated:   June 22, 2007                                      /s/

Ray H. Darling, Jr.

Executive Secretary

Secretary of Labor,

Complainant,  

v.

OSHRC Docket No. 05-1935

Thomas Industrial Coatings, Inc.,

Respondent.

Appearances:

Leigh Burleson, Esq., U. S. Department of Labor, Office of the Solicitor,, Kansas City, Missouri

For Complainant

Russell C. Riggan, Esq., and Julie O’Keefe, Esq., Armstrong Teasdale, LLP, St. Louis, Missouri

For Respondent

Before: Administrative Law Judge Nancy J. Spies

DECISION AND ORDER

Thomas Industrial Coatings, Inc. (TIC), is an industrial painting contractor who paints
structures such as water towers, ground storage tanks, bridges, locks, and dams. On October 24,
2005, the Secretary issued a citation to TIC alleging four violations of the Occupational Safety and
Health Act of 1970 (Act). The citation resulted from an inspection conducted by Occupational
Safety and Health Administration (OSHA) compliance officer Samuel Stuck on August 20, 2005.

The Secretary withdrew item 3 of the citation prior to the hearing. Item 1alleges a serious
violation of § 5(a)(1) because TIC did not provide a crash cushion or truck mounted attenuator
(TMA) vehicle to protect employees in work zones on and near a highway. Item 2 alleges a serious
violation of § 1926.95(a) , or, in the alternative, a serious violation of § 5(a)(1) for failing to require
employees to wear high-visibility clothing or warning vests as part of their personal protective
equipment (PPE) while crossing open traffic lanes on or near a highway. Item 4 alleges a serious
violation of § 1926.453(b)(2)(v) for allowing an employee to work from an aerial lift elevated 18 to
20 feet without wearing a body belt and lanyard attached to the basket.

The undersigned held a hearing in this matter on May 17 and 18, 2006, in St. Louis,
Missouri. The parties have filed post-hearing briefs. TIC argues it did not violate the cited
standards, and, in the alternative, that any violation resulted from unpreventable employee
misconduct for item 4.

For the reasons stated below, the undersigned vacates items 1 and 4, and affirms item 2 as a
violation of § 5(a)(1).

Facts

In August 2005, TIC was working as a subcontractor to Millstone Bangert on a site located
at the intersection of Interstate 70 and Highway 61 in Lake Saint Louis, Missouri. TIC’s job was
sandblasting and painting an overpass bridge. The work was usually performed during one shift
which stretched from late evening to early morning. TIC’s onsite foreman was Alan Jackson.
Kevin Sparks was its supervisor. Employees Raul Morales, Manuel Andres, James Hoffner, and
James Belfield worked as TIC’s crew on the site.

The jobsite was located on a highway divided by a central median, with three westbound
and three eastbound lanes. Most of TIC’s work required the crew to be in the eastbound lane and
the westbound lane closest to the median (the fast lanes of eastbound and westbound I-70). The
overpass bridge was 20 feet high. TIC used at least two aerial lifts to reach the bridge.

TIC created a containment area by hanging tarps from the bottom of the bridge to the
ground. TIC’s crew fastened the tarps to the beams of the bridge with C-clamps. The containment
area catches sand from the sandblasting operation and overspray from the painting operation.

On August 20, 2005, OSHA compliance officer Samuel Stuck was driving westbound on I-70 when he saw TIC’s work activities. The employees started the shift at 7:00 p.m. on August 19
and by the early morning of August 20 they were running late. Stuck observed what he perceived
to be violations of the Act. Stuck pulled over and stopped his car, and then took several
photographs. He approached the worksite and spoke first with a representative of general
contractor Millstone Bangert, and then with TIC supervisor Kevin Sparks. Based upon Stuck’s
observations and his conversations with employees, he recommended that TIC be cited by the
Secretary for violations of the Act. The Secretary followed Stuck’s recommendations and issued
the instant citation.

The Citation

Item 1 : Alleged Serious Violation of § 5(a)(1)

The Secretary alleges TIC committed a serious violation of § 5(a)(1), the general duty
clause, when employees were inside work zones on an interstate highway without the control of a
specific traffic device. Section 5(a)(1) requires that each employer “[s]hall 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.”

In order to prove a violation of section 5(a)(1), the Secretary must show that a
condition or activity in the workplace presented a hazard, that the employer or its
industry recognized this hazard, that the hazard was likely to cause death or serious
physical harm, and that a feasible and effective means existed to eliminate or
materially reduce the hazard.

Arcadian Corporation, 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004).

The citation states:

a/ Employees were working in the west bound side of I-70 in a lane drop for lane 1
behind barrels without being provided a crash cushion vehicle (truck mounted
attenuator) or other means to separate employees from the oncoming vehicles
traveling at a posted rate of speed of 45 miles per hour. Traffic was being funneled
from lane 1 and was merging into lane 2.

b/ Employees were working on the east bound side of I-70 in a lane drop for lane 1
behind barrels without being provided a crash cushion vehicle (truck mounted
attenuator) or other means to separate employees from the oncoming vehicles
traveling at a posted rate of speed of 45 miles per hour. Traffic was being funneled
from three lanes (lanes 1, 2, &3) to one lane (lane 2).

While ultimate responsibility for correcting the hazards rests with the employer,
given his/her superior knowledge of the work place, feasible and acceptable methods
of abatement to correct this hazard, among others are:

1. To follow the required guidelines of the Missouri Department of
   Transportation for work zone safety and place a crash cushion or
   truck mounted attenuator [TMA] vehicle behind/between the workers
   in the work zone and the oncoming traffic along with using the
   required warning signs and lane drop cones and barrels.

2. Follow the guidelines of the 2003 Edition with Revision of the
   2003 MUTCD, Manual on Uniform Traffic Control Devices and Title
   23 United States Code, 655 Section 109(d) and 23 CFR 655.603, and
   as approved as the national standard for designing, applying, and
   planning traffic control devices.

3. Follow the requirements of 23 U.S.C. 402(a)(3)) which requires
   that all traffic control devices installed in construction areas using
   Federal-aid funds shall conform to the MUTCD. Traffic plans for
   handling traffic and pedestrians in construction zones and for the
   protection of workers shall conform to the requirements of 23 CFR
   part 630, subpart J, Traffic Safety in Highway and Street Work Zones
   which requires the use of barricades, crash cushions, and/or truck
   mounted attenuator vehicles.

TIC had implemented a traffic control system, which included the following:

1. Four or five road signs were on each side of I-70, indicating the presence of a work zone,
the closing of lanes, and the reduction of the speed limit from 75 to 45 mph (Tr. 331-332, 335-336,
382).

2. A flashing arrow board (approximately 4 by 8 feet) was on each side of I-70, indicating
traffic should merge into another lane (Tr. 329, 332, 382).

3. The center and fast lane on each side of I-70 were closed and traffic was diverted into the
far right lane on each side (Tr. 345).

4. Orange traffic barrels were placed diagonally across the closed lanes and alongside the
work zone (Tr. 329, 331, 382).

5. Several 55-gallon drums of concrete were positioned in a rectangular perimeter around
the containment area (Tr. 334).

1. Was there a hazard?

The first element of § 5(a)(1) the Secretary must prove is that a condition or activity in the
workplace presented a hazard. In her citation, the Secretary described the alleged hazardous
condition as employees working on I-70 “without being provided a crash cushion vehicle (truck
mounted attenuator) or other means to separate employees from the oncoming vehicles traveling at
a posted rate of speed limit of 45 miles per hour.” This description does not identify the hazardous
condition to which employees were exposed; it formulates a hazard in terms of the absence of
abatement.

The hazard is not defined in terms of absence of a particular abatement method.
Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 11051121-22,
1993-95 CCH OSHD ¶ 30,048, p. 41,279 (No. 88-572, 1993) ( hazard was excessive
levels of airborne lead being generated by ongoing bridge demolition work, not
absence of protective clothing). A hazard is defined “in terms of the physical agents
that could injure employees rather than the means of abatement.” Chevron Oil Co.,
11 BNA OSHC 1329, 1331, n. 6, 1983-84 CCH OSHD ¶ 26,507, p. 33,722, n.6
(No. 10799, 1983). . . . The adequacy of the employer’s work practices to reduce the
risk of, or prevent the occurrence of, the hazard is a separate issue from the question
of how the recognized hazard is defined.

Arcadian Corp., 20 BNA OSHC at 2007.

The Secretary wants TIC to use a specific traffic safety control device, and cites TIC’s
failure to use it as a hazard. This is incorrect. The undersigned is not required to accept the
Secretary’s formulation of the hazard. “The Commission may define the hazard itself. See, e.g.,
Davey Tree Expert Co., 11 BNA OSHC 1898, 1899, 1983-84 CCH OSHD ¶ 26,852, p. 34,399 (No.
77-2350, 1984) (Commission defined hazard after determining Secretary’s definition is too broad).”
Arcadian Corp., 20 BNA OSHC at 2007-2008. It is determined the alleged hazardous condition to
which TIC’s employees were exposed was being struck by vehicles traveling on a highway, while
the employees were located in a designated work zone. Did this condition present a hazard?

In June 2001, the Center for Disease Control and Prevention (CDC) and the National
Institute for Occupational Safety and Health (NIOSH) issued a document entitled “Building Safer
Highway Work Zones: Measures to Prevent Worker Injuries from Vehicles and Equipment” (Exh.
C-9). The document reports that between 1992 and 1998, 841 workers were killed while
performing highway or street construction. Of these, 492 were killed while located in a highway or
construction work zone. Most of the fatalities occurred when a vehicle struck the worker. The
deaths by vehicles were almost evenly divided between construction vehicles (154) and passing
traffic vehicles (152). The introduction to the document provides examples of the risks to which
highway workers are exposed. One of the examples states (Exh. C-9, p. 1):

Highway workers are at risk of injury from passing traffic vehicles:

An 18-year-old flagger, outfitted in full reflective vest, pants, and hard hat, was
directing traffic at one end of a bridge approach during a night milling operation.
The work zone was correctly marked with cones and signs, and the entire bridge was
illuminated with street lights. The flagger was standing under portable flood lights
in the opposing traffic lane close to the center line, facing oncoming traffic. A
pickup truck traveling in the wrong lane at an estimated 55 to 60 miles per hour
struck the flagger head on and carried him approximately 200 feet. He died at the
scene of multiple traumatic injuries [Minnesota Department of Health 1992].

The Secretary has established that working on or near a highway in a designated work zone
presents a hazard.

2. Was the hazard recognized?

The second element the Secretary must establish is that TIC or the industry recognized this
hazard. (In the post-hearing briefs, both the Secretary and TIC proceeded on the erroneous
assumption the hazard at issue was failing to use a TMA, as described by the Secretary in the
citation. Their arguments will be applied to the hazard of working on or near a highway in a
designated work zone.) The Secretary does not contend TIC itself recognized the hazard, but that
she established industry recognition by citing recommendations made by the Federal Highway
Administration’s “Manual on Uniform Traffic Control Devices for Streets and Highways”
(MUTCD). TIC argues the Secretary has improperly categorized its industry as the highway
construction industry, when in fact its industry is the bridge painting industry.

“[W]here a practice is plainly recognized as hazardous in one industry, the Commission may
infer recognition in the industry in question.” Kelly Springfield Tire Co. v. Donavan, 729 F.2d 317,
321 (5 th Cir. 1984). In this case, the undersigned does infer the bridge painting industry recognizes
working in a designated work zone on or near a highway as a hazard. The introduction to “Building
Safer Highway Work Zones” states, “Highway and street construction presents a complex work
situation in which workers face multiple injury risks under conditions that may change without
warning” (Exh. C-10, p. 1). Page ix of the document lists the Federal Highway Administration’s
MUTCD as a primary source for safety recommendations, noting, “Highway workers, regardless of
their assigned tasks, work in conditions of low lighting, low visibility, and inclement weather, and
may work in congested areas with exposure to high traffic volumes and speeds.”

The Commission has acknowledged the common-sense observation that highway work is
inherently hazardous:

Simply put, unless [a multiple-lane interstate] highway has been completely
closed to active traffic, employees engaged in highway construction work are in
danger of being hit by a moving vehicle whether they are working adjacent to the
highway, flagging motorists on the highway, or crossing the highway.

W. G. Fairfield Co., 19 BNA OSHC 1233, 1236 (No. 99-0344, 2000) (discussing the training
standard § 1926.28(a)). Identifying a worker as belonging to the bridge painting industry rather
than the highway construction industry makes him no less vulnerable to being struck by a passing
vehicle. The Secretary has established the exposure of TIC’s workers to passing vehicular traffic
was a recognized hazard in the bridge painting industry, as well as in any industry that requires its
workers to work adjacent to or on a highway open to traffic.

3. Was the hazard likely to cause death or serious physical harm?

The third element the Secretary must prove is the hazard is likely to cause death or serious
physical harm. The fatality statistics for highway construction workers establish working on or
near a highway exposes them to death and serious injury.

4. Was there an effective and feasible means of abatement?

The last element of the Secretary’s case is proving a feasible and effective means existed to
eliminate or materially reduce the hazard. It is this element the Secretary fails to establish. She
relies on the Missouri Department of Transportation (MoDOT) manual to support her claim TIC
was required to use a TMA at its worksite. Stuck testified a drawing in the MoDOT manual
mandates the TMA be used when closing lanes on a divided highway (Exh. R-30, p.81, drawing
TA-13; Tr. 159-160). In focusing on the TMA, the Secretary loses sight of the other effective
means implemented by TIC to materially reduce the hazard. TIC used standard temporary traffic
control devices to slow traffic and channel it away from its work zone. Neither the MoDOT manual
nor the MUTCD requires the use of a TMA under the conditions existing at TIC’s site.

Scott Stotlemeyer is a technical support engineer for the MoDOT (Tr. 253). He helped draft
the MoDOT manual upon which the Secretary relies (Tr. 255). Stotlemeyer testified the manual
was intended for purposes internal to the MoDOT and does not impose requirements upon outside
contractors such as TIC (Tr. 256-258). Furthermore, the drawing in the manual to which Stuck
refers expressly exempts the MoDOT from using a TMA at a work site when the speed limit is
reduced to 45 mph, as it was on TIC’s site (Exh. R-30, p. 81, drawing TA-13; Tr. 195-196). Stuck
also referred to Figure 6H-30 of the MUTCD when testifying that document requires the use of a
TMA. Figure 6H-30 states the use of a TMA is optional (Exh. C-34; Tr. 208).

Nothing in the record indicates a TMA was the only feasible and effective means to
materially reduce the hazard available to TIC. Stuck admitted a TMA would not have protected the
entire site, and its presence would not have prevented all workers from being struck by an errant
vehicle (Tr. 201-202). TIC took steps to protect its employees from a recognized hazard, and the
Secretary failed to show a TMA afforded a more effective means to address the hazard. The
Secretary failed to establish a violation of § 5(a)(1) with respect to item 1.

Item 2: Alleged Serious Violation of § 1926.95(a),

or, in the Alternative, of § 5(a)(1)

In her original citation, the Secretary alleged TIC committed a serious violation of § 5(a)(1)
by failing to require its workers to wear reflective vests when they “were working on an interstate
highway, where traffic was present and where workers were crossing the open traffic lane.” On
April 24, 2006, the Secretary moved to amend her complaint under item 2 to allege a serious
violation of § 1926.95(a), claiming “The employer did not provide high visibility reflective clothing
to employees working on an interstate highway, where traffic was present and while working in a
work zone and crossing lanes of traffic.” She alleged in the alternative that TIC violated § 5(a)(1)
as alleged in the original citation. The undersigned granted the Secretary’s motion.

In order to establish a violation of an occupational safety or health standard,
the Secretary has the burden of proving: (a) the applicability of the cited standard,
(b) the employer’s noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s actual or constructive knowledge of
the violation ( i.e., the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).

Atlantic Battery Co., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Stuck testified he noticed only one member of TIC’s crew was wearing a vest, and it was
not reflective but was “a hunting vest that was a netted vest and was very badly worn. It was almost
brown it had been worn so much. It wasn’t bright orange” (Tr. 71). Stuck observed the employees
crossing one of the open lanes of traffic on their way to the laydown area (Exh. ALJ-1; Tr. 89).
Stuck told Sparks “it was required for anybody who was working within 15 feet of the roadway” to
wear a reflective vest (Tr. 69). (This is, in fact, not a requirement found in OSHA’s construction
standards.) Wayne Long, TIC’s environmental manager, testified that generally TIC does not
require its crew members to wear reflective vests (Tr. 379-380):

Because of the nature of our work on 95 percent of our jobs, we’re usually
the only contractor on site, and the nature of our work, blasting and painting, if you
wear a reflective or safety vest when you are blasting, it doesn’t last ten minutes.
And, if you wear it while you’re painting, it gets covered by overspray in a matter of
a couple of minutes.

It’s not feasible, it’s impractical because they don’t last long enough. You
can’t buy enough for the day to keep them on the men. But when it’s requested of
us, we come out with a containment procedure or work rule, and on that particular
site at Blanchep [the job TIC completed prior to the one at issue] you are to wear it
when you’re outside of the containment if required, if outside.

MoDOT inspectors had requested TIC to require its crew members to wear reflective vests
on the earlier Blanchep job. Long felt the inspectors might want the same requirement on the job at
issue, so he implemented it as a policy for the site. Long emphasized his rule was not prompted by
safety concerns (Tr. 381): “Just if you appease them, to make them happy, things go fine. If you
don’t appease them, they will make it rough on you.” The work rule Long allegedly instituted on
his initiative for these two jobs was a verbal accommodation for MoDOT, but did not appear to be
followed by the TIC crew.

Section 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 manner capable of causing injury or impairment in the function of
any part of the body through absorption, inhalation or physical contact.

Applicability

The first element the Secretary must prove is that the cited standard applies to the cited
conditions. TIC argues § 1926.95(a) does not apply to reflective vests. The issue of the
applicability of § 1926.95(a) (or of the identical general industry standard found at § 1910.132(a))
to reflective vests has recently been addressed in detail in The Ruhlin Company, OSHRC website,
2006 – No. 28 (Docket No. 04-2049, November 20, 2006) and United States Postal Service ,
OSHRC website, 2006 – No. 22 (Docket No. 04-0316, November 20, 2006).

In Ruhlin, the employer’s crew was widening a section of highway. The crew closed the
outside eastbound lane, used cones to create a work zone, and placed an arrow board to warn
traffic of the road work and to reduce the speed limit. Ruhlin’s employees working inside the
work zone were not required to wear reflective vests. The Secretary cited Ruhlin for a violation
of § 1926.95(a). Judge Ken S. Welsch vacated the citation. In affirming that portion of his
decision, the Commission held that Subpart E, where § 1926.95(a) is found (Personal Protective
and Life Saving Equipment), does not encompass high-visibility clothing or other warning
garments. Those standards provide an actual physical protection or barrier between the potential
hazard and the employee, rather than the protection of a visual warning to others offered by high
visibility or warning garments. Because the Secretary’s interpretation to the contrary was
inconsistent with other construction standards, with her more recent interpretative letter, and with
statutory requirements for rulemaking, the Commission considered the interpretation
unreasonable and rejected it. Ruhlin , 2006 OSHRC No. 28, p. 5-8).

Section 1926.95(a) does not apply to high-visibility clothing or warning garments. Item 2,
alleging an alternative violation of § 1926.95(a), is vacated.

Section 5(a)(1), in the Alternative

1. Was there a hazard?

The Secretary again incorrectly frames the hazard alleged in item 2 under § 5(a)(1) in
terms of the absence of abatement, i.e., not wearing high-visibility clothing or warning garments.
Again, the undersigned rejects this framing. The alleged hazardous condition to which TIC’s
employees were exposed was being struck by vehicles as they walked across open lanes of traffic
when crossing the highway.

The CDC/NIOSH publication “Building Safer Highway Work
Zones” establishes that working both inside and outside a highway work zone constitutes a
hazard.

2. Was the hazard recognized?

The record also establishes the hazard as recognized. The Commission in W. G. Fairfield,
19 BNA OSHC at 1236, states that, of the three practices of working adjacent to the highway,
flagging motorists on the highway, or crossing the highway, “crossing an active highway on foot
is clearly the most dangerous.”

TIC also recognized the hazard. TIC supervisor Jackson
testified that at the beginning of a shift when employees need to get to the work zone from the
laydown area where they park their vehicles and where equipment is stored, TIC does a “rolling
lane drop” (TR. 336): “I’ll take my truck with the lights on it, and I’ll actually slow the traffic
down in the live lane and even stop it if I have to to allow them time to cross that line into the
lane drop area.” When asked how employees got back to the laydown area, Jackson stated,
“Normally, they would stay [in the work zone] until lunch time or whatever, and then we would
get in my truck and come across” (Tr. 337).

3. Was the hazard likely to cause death or serious physical harm?

As in Item 1, the Secretary established the third element (the hazard is likely to cause
death or serious physical harm) by introducing the fatality statistics for highway construction.

4. Was there a feasible and effective means of abatement?

The last element the Secretary must prove is that a feasible and effective means existed to
eliminate and materially reduce the hazard. TIC argues it eliminated the hazard by implementing
the rolling lane drop and by ferrying the employees across the highway by truck. This method
would be acceptable if the record established TIC’s employees followed it without fail. The
Secretary presented evidence, however, that TIC’s employees crossed the active lane of the
highway on foot, without wearing high visibility clothing. Stuck testified he observed TIC’s crew
walk across the open lane from the work zone to the laydown area carrying equipment (Tr. 89).
Stuck stated four of the five crew members he saw crossed over the open lane (Tr. 90-91). TIC
claims generally its employees wore reflective vests on that site, but provided no specific
evidence they did so (Tr. 288-289):

Q. How many employees at that time [of the inspection] were wearing reflective
vests, do you recall?

Sparks: I don’t.

Q. Do you know if anyone was wearing reflectorized vests?

Sparks: I’m sure they were. That’s our policy.

Stuck’s eyewitness account of four crew members crossing on foot without high-visibility
clothing bringing equipment is credited over the speculative testimony by TIC personnel based on
an alleged policy. While wearing high-visibility clothing would not eliminate the hazard of being
struck by a traffic vehicle, it does materially reduce the hazard. In TIC’s scenario, reflective vests
may provide little protection for workers in work zones against errant vehicles whose drivers
have lost control. For employees crossing a lane on foot, however, wearing brightly colored
reflective vests increases their visibility and reduces their risk of being struck by a vehicle. The
Review Commission’s recent decision in United States Postal Service (USPS) , 2006 OSHRC
No.23 (decided the same day as Ruhlin ), does not invalidate this analysis. In USPS , the Postal
Service required letter carriers walking or crossing a roadway in low-light or dark conditions to
wear garments with reflective strips and reflective vests. The Secretary argued the reflective
garments did not comply with the criteria in ANSI-ISEA 107-1999 and offered inadequate
protection. She failed, however, to prove why the protection was inadequate or why the ANSI
criteria more effectively protected or warned against the hazard of being struck by a vehicle. In
contrast to the Postal Service in USPS , TIC did not enforce wearing highly visible reflective vests
or warning garments while crossing open highway lanes. Even if it existed, TIC’s alleged job-specific “policy” was ineffective.

Traditionally, the bright reflective colors of the warning vests or garments visually cue the
highway driver that individuals are in the area designed only for automobile traffic. Drivers
routinely see people required to work in and around traffic in dark or daylight, such as traffic
police, school crossing guards, or flaggers, all of whom wear highly-visible or reflective clothing.
(Many bicyclists and joggers who are on the roadways also wear reflective garments.) Just as
speeding motorists reflexively slow down when they spot blue flashing lights, drivers who see the
bright colors of the reflective or warning garments reflexively slow down, drive more carefully,
and avoid aiming towards individuals wearing reflective clothing. Drivers reasonably have come
to expect workers crossing active highway lanes will wear highly-visible warning garments.
Failure to wear the warning garments creates additional danger in a dangerous environment.

The Secretary established the existence of a feasible and effective means of abatement.
The serious violation of § 5(a)(1) for failing to require that employees crossing an open highway
lane on foot wear high-visibility clothing is affirmed.

Item 4: Alleged Serious Violation of § 1926.453(b)(2)(v)

The Secretary alleges TIC committed a serious violation of § 1926.453(b)(2)(v), which
provides:

A body belt shall be worn and a lanyard attached to the boom or basket when
working from an aerial lift.

It is undisputed the cited standard applies to TIC’s employees working in aerial lifts, and
employees not tied off would be exposed to fall hazards. Compliance and knowledge are at issue.

Stuck contends he observed TIC employee Raul Morales working from an aerial lift
elevated 18 to 20 feet. Stuck says Morales was not wearing a body belt. TIC attacks the
credibility of Stuck, arguing his testimony is contradicted by the other witnesses and not
supported by the evidence. TIC also argues that, even if Morales was working at a height of 18
feet without being tied off, TIC had no knowledge of the condition. TIC also asserts the
affirmative defense of employee misconduct.

Stuck’s Testimony

Stuck was driving westbound on I-70 at approximately 6:30 a.m. on August 20, 2005,
when he saw a highway work zone (Tr. 61, 171, 183). Approximately ⅜ of a mile from the work
zone, westbound traffic stopped and Stuck observed Morales in an aerial lift 18 to 20 feet in the
air (Tr. 171-172). Stuck observed Morales “working up in the beams of the bridge, below the
bridge” (Tr. 61). Stuck stated he watched him “for three or four minutes while I was moving
toward him in my own personal vehicle. As I was driving, I could see him out of the corner of
my eye.” (Tr. 151-152). As the traffic began moving, Stuck stopped looking at Morales and
focused on driving and finding a parking place (Tr. 173-174). Stuck was unable to photograph
Morales working at a height of 18 feet because his camera was on the back seat of his car while
he was driving (Tr. 152). Stuck exited his car approximately 10 minutes after first seeing
Morales in the lift (Tr. 242). Stuck returned to his car and drove over to the opposite side of the
road, from where he observed Morales again. The second time Stuck saw Morales in the elevated
lift was approximately 20 minutes after he first observed him (Tr. 241-242). When Stuck saw
him, Morales was handling a piece of equipment, possibly a hose (Tr. 153).

Stuck pulled into the work zone past the last piece of equipment, put on his PPE, and
approached the nearest person on the site (Tr. 62). Stuck first spoke to a representative from the
general contractor Millstone Bangert (Tr. 62). The representative directed Stuck to Kevin Sparks
(Tr. 67).

According to Stuck, Sparks told him Morales was not wearing his harness because “it
was across the road in a laydown area” (Tr. 69).

Morales’s Testimony

Raul Morales testified through a Spanish translator. Morales stated he always wore a
harness when working in the aerial lift. When Stuck arrived at the site, Morales was moving the
aerial lift because it was on top of one of the containment tarps (Tr. 29). Morales had exited the
lift and was changing out of his coveralls and cleaning up when other members of his crew asked
him to re-enter the lift and move it off of the tarp so they could roll it up (Tr. 30-31). Morales
could not remember if he put his harness back on to move the lift (the basket was not elevated,
but TIC’s rule is to wear a harness and tie off any time a worker is in the lift (Tr. 39-40)).
Morales testified he always followed the tie-off rule (Tr. 40). Stuck did not interview Morales
(Tr. 33).

Kevin Sparks

Sparks testified he did not recall telling Stuck that Morales’s harness was across the street.
He stated he never told Sparks he was aware Morales was in the lift while not being tied off (Tr.
287, 290). He arrived at the site “right after daybreak,” near the end of crew’s shift at 7:00 a. m.
The TIC crew members had finished their work and “were derigging, rolling up hoses, rolling up
tarps. We were trying to get off the highway” (Tr. 286-287). When Stuck arrived on the site,
Sparks was working to repair a broken-down lift (not the one in which Morales worked) (Tr.
285).

Alan Jackson

Foreman Jackson was on site at the time of Stuck’s inspection. He did not observe
Morales in the lift without his body harness (Tr. 325). Jackson testified that at the time of Stuck’s
inspection, there was no reason for Morales to be in the lift 18 to 20 feet in the air (Tr. 342): “We
were finished with the bridge. There was no reason to go back up there.”

1. Did TIC comply with the terms of the standard?

The only evidence presented by the Secretary in support of her charge that Morales was
working from a lift 18 to 20 feet in the air without being tied off is the testimony of Stuck. She
presents no photographic evidence. Despite Stuck’s claim that Sparks acknowledged Morales’s
harness was across the street, no witness statement, notes, or contemporaneous report was
adduced to support his claim. The accuracy of Stuck’s observation from a moving car at some
distance that an employee elevated at least 18 feet in the air was not tied off is open to question.
The angle and the height of the basket would seemingly work against certainty on this issue.           Yet, TIC offered no evidence that Stuck was unable to see whether or not Morales was tied off
from his positions on the highway. Morales’s testimony regarding whether he was tied off was
confusing and evasive. He testified he wore his harness in the aerial lift earlier that day while
sandblasting. He had only just taken off his harness and cover-alls when another employee asked
him to move the aerial lift (in its lowered position). His testimony focused on that latter time, and
did not otherwise address the period when Stuck observed him 20 minutes earlier. Sparks, while
denying he said anything regarding Morales’s harness, came across as defensive and
uncooperative.

The Secretary has the burden of proving each element of her case by a preponderance of
the evidence. On the element of noncompliance, she has done so.

2. Employer Knowledge

The Secretary has failed to establish TIC had actual knowledge that Morales was not tied
off in the lift. Jackson and Sparks both testified they were unaware Morales was working from
the lift without his harness. For proof of actual knowledge, the Secretary relies on Stuck’s
testimony that Sparks acknowledged Morales’s harness was across the street. A review of
Stuck’s testimony on this issue shows Stuck and Sparks may have misunderstood each other.

At the time Stuck interviewed Sparks, 20 minutes had elapsed since Stuck first saw
Morales in the lift. Morales testified he had exited the lift, taken off his coveralls, and begun
cleaning up. He then re-entered the lift to move it off one of the tarps, as requested by his co-workers (Tr. 30, 31). Sparks testified that when he arrived at the worksite, shortly after 7:00
a.m., the TIC crew members were done with their shift and were in the process of moving the
equipment off the highway. Sparks’s attention was trained on the broken-down aerial lift and the
repairman sent to fix it (Tr. 286-287). The shift was late, and the pace of activity was frenetic.
Crew members were carrying equipment across the highway during this time.

When Stuck asked Sparks where Morales’s harness was, Sparks answered “Across the
street.” He knew Morales was done with his shift and the storage trailer was located in the
laydown area where the employees took the tools and equipment after they were done. Stuck
may have intended his question to mean, “Why wasn’t Morales wearing his harness when he was
elevated 18 feet in the aerial lift 20 minutes ago?” but Sparks could have interpreted his question
to mean, “Where is the harness now that Morales’s shift is over?” Stuck’s testimony is generally
worded and vague regarding the time about which he is questioning Sparks (Tr. 68-69):

Stuck: I asked Mr. Sparks why he didn’t have on his harness, and I was told that
the harness was in a storage trailer on the other side of the road. . . . We went into
some detail about the need for the harness and lanyard, and I asked him why he
didn’t have it on, and he said it was across the road.

Q. You asked him why he didn’t have it on?

Stuck: I’m sorry, I should be more clear. I asked Mr. Sparks why the man in the
aerial lift didn’t have it on.

Q. What did Mr. Sparks reply?

Stuck: He replied that it was across the road in a laydown area; in that area.

Struck did not ask Sparks why Morales did not have on the harness at the time he was in
the lift. His question could be interpreted as doubting that TIC had any fall protection on the site.
Sparks’s answer could be interpreted as assuring Stuck that TIC does use fall protection, and that
it is in the storage trailer if he wants to check. Such an interpretation was reasonable. The
conversation recounted by Stuck does not establish actual knowledge on Sparks’s part that
Morales was in the lift without his harness.

The Secretary also failed to establish constructive knowledge. To prove constructive
knowledge, the Secretary must show that the employer could have discovered the violative
condition with the exercise of reasonable diligence. “Whether an employer was reasonably
diligent involves a consideration of several factors, including the employer’s obligation to have
adequate work rules and training programs, to adequately supervise employees, to anticipate
hazards to which employees may be exposed, and to take measures to prevent the occurrence of
violations." Donohue Indus., Inc. , 20 BNA OSHC 1346, 1349 (No. 99-0191).

TIC had a work rule requiring employees working in lifts to tie off 100% of the time.
This rule was communicated in orientation training, refresher training, and weekly toolbox talks
(Exh. R-1; Tr. 364, 366-367). Several of the crew members, including Morales, spoke Spanish as
a first language. Both Morales and Jackson testified that if one of the Hispanic workers had
trouble understanding any communications, Jackson explained it to him in Spanish, in which he is
fluent (Tr. 320). TIC implements a progressive disciplinary system, and disciplines employees
when they violate company safety rules (Exhs. R-6).

TIC demonstrated it exercises reasonable diligence in discovering and correcting the
specific safety hazard. The Secretary failed to establish TIC had constructive knowledge of
Morales’s violative conduct. Item 4 is vacated.

Penalty Determination

The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, the Commission is required to consider the size of the employer’s business,
its history of previous violations, the employer’s good faith, and the gravity of the violation.
Gravity is the principal factor to be considered.

TIC employs approximately 100 workers (Tr. 134). The company had received citations
for serious violations of the Act within the three years prior to the instant inspection (Tr. 134).
No evidence was adduced to show less than good faith.

The gravity of the violation is high (being struck by a car on a highway will likely result
in death). It is determined the appropriate penalty is $3,000.00.

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:

1.           Item 1, alleging a violation of § 5(a)(1), is vacated and no penalty is assessed;

2.           Item 2, alleging a violation of § 1926.95(a), is vacated. The alternative allegation
of a violation of § 5(a)(1) is affirmed and a penalty of $ 3,000.00 is assessed;

3.           Item 3 is withdrawn by the Secretary; and

4.           Item 4, alleging a violation of § 1926.453(b)(2)(v) is vacated.

/s/

NANCY J. SPIES

Judge

Date: December 11, 2006