Post Buckley Schuh & Jernigan, Inc.
Fatal heat-stress violation affirmed
Apply this to your situation
This order from 2012 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
An archaeological field technician became disoriented while digging test holes during his first day on a Texas pipeline survey project. Temperatures approached 99 degrees, he was sent alone toward an air-conditioned vehicle, and coworkers later found him unconscious with a core temperature of 107.8 degrees. He died after several days in the hospital. The judge found that the employer recognized excessive heat as a serious hazard but lacked an adequate written program for acclimatization, work-rest cycles, frequent hydration, accessible cool rest areas, and heat-illness training. The serious general-duty-clause violation was affirmed with a $6,300 penalty, and two withdrawn items were dismissed.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1)
- Outcome: The serious heat-stress item was affirmed with a $6,300 penalty; two withdrawn items were dismissed.
- Key point: A heat program must give changing field crews concrete written controls and training, especially for new workers who may not recognize or report worsening confusion and disorientation.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
Secretary of Labor,
Complainant, DOCKET NO. 10-2587
v.
Post Buckley Schuh & Jernigan, Inc.,
Respondent.
Appearances:
Clara H. Saafir, Esq., Colleen B. Nabhan, Esq., Office of the Solicitor, U.S. Department of Labor
Dallas, Texas
For the Complainant
Michael G. Murphy, Esq., Greenberg Traurig, P.A., Orlando, Florida
For the Respondent
Before: Administrative Law Judge Patrick B. Augustine
DECISION AND ORDER
Procedural History
This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”)
inspected a worksite of Post Buckley Schuh & Jernigan, Inc. (“PBSJ” or “Respondent”) located
in Jourdanton, Texas (“Worksite”), on August 26, 2010. The inspection occurred after an
employee at the Worksite lost consciousness, was taken to the emergency room, and
subsequently died. As a result of the inspection, OSHA issued a Citation and Notification of
Penalty (“Citation”) to PBSJ alleging violations of the Act and proposed a total penalty of
$9,450.00. PBSJ filed a timely Notice of Contest. The trial was held on October 4 and 5, 2011, in
San Antonio, Texas. At the beginning of the trial, Complainant moved to withdraw Citation 1,
Item 2 and Citation 2, Item 1. The Court granted the unopposed motion. Therefore, the trial only
addressed Citation 1, Item 1. (Tr. 7-8). Citation 1, Item 1 alleges a violation of § 5(a)(1) of the
Act, 29 U.S.C. § 654(a), and proposes a penalty of $6,300.00. Both parties filed post-trial briefs
in this matter.
Jurisdiction
The parties stipulated that the Act applies and the Commission has jurisdiction over this
proceeding pursuant to § 10(c) of the Act, 29 U.S.C. § 659(c). (Compl’t. Br. at 10; Resp’t. Br. at
2). Further, the record establishes that at all times relevant to this matter, Respondent was an
employer engaged in a business affecting commerce within the meaning of § 3(5) of the Act, 29
U.S.C. § 652(5). Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).
Applicable Law
There is no specific OSHA standard addressing exposure to excessive levels of heat. The
Complainant consequently cited the alleged violation under the general duty clause, § 5(a)(1) of
the Act, 29 U.S.C.§ 654(a)(1). Section 5(a)(1) of the Act states that "[e]ach employer 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." 29 U.S.C. § 654(a)(1). To establish a prima facie violation of § 5(a)(1),
Complainant must prove by a preponderance of the evidence that: (1) a condition or activity in
the workplace presented a hazard to employees, (2) the employer or its industry recognized the
hazard, (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible and
effective means existed to eliminate or materially reduce the hazard. Kokosing Constr. Co., 17
BNA OSHC 1869, 1995-96 CCH OSHD ¶ 31,207 (No. 92-2596, 1996).
A violation is “serious” if there was a substantial probability that death or serious
physical harm could have resulted from the condition. 29 U.S.C. § 666(k). Complainant need
not show that there was a substantial probability that an accident would actually occur; she need
only show that if an accident had occurred, serious physical harm or death could have resulted.
Whiting Turner Contracting Co., 13 BNA OSHC 2155, 1989 CCH OSHD ¶ 28,501 (No. 87-
1238, 1989). If the possible injury addressed by the cited standard is death or serious physical
harm, a violation is serious. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir.
1984); Dec-Tam Corp., 15 BNA OSHC 2072, 1993 CCH OSHD ¶ 29,942 (No. 88-0523, 1993).
Statement of Facts1
Respondent is a consulting firm engaged primarily in engineering and architectural
design. At the time of the cited incident, Respondent had approximately 3,100 employees.
Archeological field work, like the type being performed at the Worksite, was generally
performed by less than one hundred (100) of Respondent’s employees. During the summer of
2010, Respondent, at times, had over fifty (50) employees performing archeological field work.
Archeological field work consists of surveying sites for artifacts. The survey work required the
team, which is composed of degreed archeologists or anthropologists employed on a permanent
or temporary basis, to do shovel tests to ascertain the presence of any artifacts. Each shovel test
required clearing a specified area of brush, using a hand shovel to dig a 1-foot-square hole about
3 feet in depth, and then screening the extracted earth and recording the results. (Tr. 31, 578-584,
627-29, 632).
1
The Statement of Facts is based upon undisputed evidence in the record. Except for the first paragraph, the
following is a summary of the deposition testimony of Lisa Hopwood read into the record upon agreement of the
parties and her written statement. (Ex. J-10). Ms. Hopwood has a Master’s degree in archeology. She was the acting
supervisor for PBSJ on August 9, 2010. (Tr. 21, 26-30, 206-08).
In late June or early July 2010, Respondent started performing archeological survey work
in connection with the installation of a pipeline which comprised an area one hundred (100)
miles long located approximately sixty (60) miles south of San Antonio, Texas (“Project”).
Before commencing work on the Project, Respondent conducted an orientation for the crew
members that provided general instructions about the scope of work and the working conditions
at the Worksite (“Initial Orientation”). Respondent was performing archeological survey work at
the Worksite when the incident giving rise to the inspection occurred. Generally, the crew would
meet early each day at a designated hotel before heading out to the Worksite, which was about an
hour away. Two new crew members, C.L. and C.C., joined the Project on August 9, 2010, and
thus they were not present for the Initial Orientation.2 On the morning of August 9, 2010, the
team met at about 6:30 a.m. to prepare for the workday. C.L. and C.C. had to complete
paperwork for PBSJ’s human resources department (“HR”) before they could go to the Worksite.
C.L. was having trouble finding the documents he needed, so Ashley Brown, the team
supervisor, went to the Worksite with four team members while C.L. stayed behind to finish his
paperwork. Luke Hugman, another team member, stayed behind so that he could drive C.L. to
the Worksite. (Tr. 31, 34, 44-47, 55-58, 77-83, 129-30; Ex. J-10).
Mr. Hugman and C.L. arrived at the Worksite around 9:30 a.m. The rest of the team was
still getting water and equipment together and putting on sunscreen and insect repellent. Ms.
Brown and C.L. had a telephone conversation with HR which lasted thirty (30) minutes to
further discuss his incomplete paperwork. Ms. Brown was then stung by a bee, and, because she
was allergic to bee stings, she consulted with HR and decided to go back to the hotel. Before
leaving the Worksite, Ms. Brown designated Ms. Hopwood to act as supervisor due to her
2
The initials of these two employees are being used to protect their privacy. See generally Commission Rule 8, 29
C.F.R. §2200.8 and Fed.R.Civ.P. 5.2(a).
advanced degree. (Tr. 31-32, 81-87; Ex. J-10).
Before leaving the site, Ms. Brown instructed Ms. Hopwood to train C.L. and C.C. on
how to perform shovel tests and how to properly complete the paperwork. Ms. Hopwood did so.
She also told C.L. and C.C. that, because they were new and she was a new supervisor, they
would “take it … pretty slow and easy” and “just go at whatever pace we could”. At 10:10 a.m.,
she paired C.L. and C.C. with other team members so they could see how to do shovel tests and
complete the paperwork.3 After completing his first shovel test with another team member, C.L.
was ready to perform a shovel test on his own. Ms. Hopwood showed C.L. where to dig the hole.
She then checked on the other team members and returned to where C.L. was working about
thirty (30) minutes later. At that time, C.L. stated he was not feeling well. Ms. Hopwood
instructed him to sit down, rest and drink some water. C.L. sat down near his work area, which
was shaded by a small mesquite tree.4 Ms. Hopwood checked on C.L. about fifteen (15) minutes
later, and he said he still was not feeling well. Ms. Hopwood told C.L. to go sit in the company
truck with the air conditioning (“AC”) on. C.L. agreed to do so. Ms. Hopwood did not know if
he drank any water as she had instructed him earlier, nor did she see him actually go to the truck,
which was on the main access road and about 300 feet away. (Tr. 38-39, 85-100, 187-88, 191;
Ex. J-10).
About an hour later, around 11:45 a.m., C.L. returned from the truck. After sitting in the
AC truck, drinking some water and eating some almonds, C.L. said that he felt much better. C.L.
appeared exuberant, and he thanked Ms. Hopwood for letting him rest in the truck. Ms.
3
According to Ms. Hopwood, C.C. was very new to field work, while C.L. had worked out in the field before with a
different company. (Tr. 89).
4
Ms. Hopwood indicated that the vegetation at the site consisted of brush and small mesquite trees that provided
some shade, but not the kind of shade that larger trees would provide. (Tr. 95-98).
Hopwood found his behavior rather odd, especially considering how he had been feeling before.5
She told him because it was almost lunchtime, he could help another team member finish a
shovel test. C.L did so, and then returned to Ms. Hopwood. Ms. Hopwood asked him to go back
to the truck and move it to where the team was so that the water cooler, which was in the truck,
would be closer to their location in the afternoon. When he did not return shortly as expected, the
team walked to the road looking for C.L. The team watched as the truck sped by at an excessive
speed, and the cooler in the back flew up as the truck hit bumps in the dirt road. It appeared that
C.L. had not been able to find the team’s location, even though he had just been there, and that
he had been driving back and forth on the road. C.L. finally saw them, turned around and came
back. Ms. Hopwood admonished him for driving the company truck in such an inappropriate
manner, and she told him he should not do so again. C.L. said he understood. (Tr. 101-11; 131-
32; Ex. J-10).
The team had lunch from 12:30 p.m. to 1:30 p.m. At first C.L. sat with Mr. Hugman, who
had returned to the Worksite in his jeep. The rest of the team sat in the truck. Both vehicles had
the AC on, due to the heat. C.L. got out of the jeep and walked to the truck to talk to the other
team members. He had a water bottle in his hand, and when someone asked him if he had enough
to eat, he said that he only had nuts and dried fruit when out in the field. C.L was out in the heat
for fifteen (15) to thirty (30) minutes during the lunch hour. After lunch, the team walked back
to the Worksite, and Ms. Hopwood showed each team member where to dig. As before, the
members worked alone but were within five (5) to ten (10) meters of each other. Mr. Hugman
was working closest to C.L., and while they could not see each other, due to the brush, they
5
Ms. Hopwood testified that she and others on the team found C.L. to be rather odd. She learned, for example, that
C.L. had driven all night to reach the hotel; he had been drinking coffee to stay awake and wasn’t feeling well, but
he still intended to do a full day’s work. He only had orange juice that morning, even though the hotel provided a
full breakfast. C.L. also had an unusual way of communicating and seemed to express incomplete thoughts. These
observations led Ms. Hopwood to conclude that C.L. was somewhat “strange.” (Tr. 79-80, 105-06, 128-30).
could hear each other. After about twenty (20) minutes, Ms. Hopwood returned to C.L.’s dig
site. She saw that rather than clearing an area of one foot by one foot, he had cleared the brush
from an area about five (5) feet by nine (9) feet. Ms. Hopwood found this very strange. She told
him that he did not need to clear that large of an area and that he should start his shovel test,
which he did. Ms. Hopwood continued checking on the rest of the crew. Around 3:00 p.m., Ms.
Hopwood returned to C.L.’s location and found him standing about twenty (20) yards away from
his test area holding grass in his hand. She asked him if he was all right, and he said he was “not
lollygagging but feeling a bit disoriented.” She told him to have some water and sit in the shade.
He said that sounded “like a good idea”. As he walked toward some shade, Ms. Hopwood heard
C.C. tell C.L. that she had some water if he wanted some. Ms. Hopwood assumed C.L. took the
water but later learned he did not. (Tr. 111-26, 131; Ex. J-10).
About 3:30 p.m., while she was helping another team member with a shovel test, Ms.
Hopwood heard movement in the brush nearby. She thought it was Mr. Hugman, so she called
out: “Hey, Luke, come over this way for your next shovel test.” The response was “Okay,” and
then some mumbling. Ms. Hopwood called out: “[C.L.], is that you?” The response was “Yes.”
Ms. Hopwood then asked why he had answered as Mr. Hugman. C.L.’s reply was not
intelligible. Ms. Hopwood stated: “You don’t sound very good. Would you like to go sit in the
truck in the AC?” C.L. answered: “Yes, that sounds like a good idea. I think I should get out of
the woods.” Ms. Hopwood told him the rest of the crew would be done in fifteen (15) to twenty
(20) minutes and they would meet him at the truck. Ms. Hopwood could not see C.L. at this time,
but she heard him head off in the brush in the direction of the truck. She thought he was
experiencing some confusion or disorientation, but she believed, due to his last response, that he
was coherent enough to make it back to the truck, which was about 300 feet away. (Tr. 126-28,
132-33, 191; Ex. J-10).
Around 4:00 p.m., the crew headed back to the vehicles. Mr. Hugman had gathered up all
of C.L.’s equipment, as it had been left at his last shovel test, and the team carried it with them.
Along the way, they saw C.L.’s hat, so they picked that up, too. When they reached the vehicles,
C.L. was not there. The crew started calling out his name, and when there was no response, Ms.
Hopwood directed the crew members to look for him. She called Ms. Brown, Dale Norton and
HR, to let them know what had happened.6 Ms. Hopwood found C.L. about 300 yards down the
road from the truck. He was lying in a ditch, face down and curled up. When she reached him,
his body was hot, he was breathing heavily and she was unable to rouse him. In an effort to cool
him off, she began pouring water on him. She then called out for help, and when the other team
members arrived, they placed wet handkerchiefs on C.L. to try to cool him down. (Tr. 133-39;
Ex. J-10).
Mr. Hugman called 911 and arranged for an ambulance to meet them a short distance
away in a less remote area that would be easier to find. C.L. was then lifted into Mr. Hugman’s
jeep and taken to the ambulance. The ambulance transported C.L. to the hospital, where he
remained for several days before he died. According to the autopsy report, C.L.’s initial core
temperature was 107.8º F. (Tr. 140-42, 329-32, 353; Ex. C-1).
The Alleged Violation
Item 1 of Serious Citation 1 alleges a violation as follows:
Section 5(a)(1) of [the Act]: The employer did not furnish to each of his
employees a place of employment which was free from recognized hazards that
were causing or likely to cause death or serious physical harm to employees…:
a) On or about 08/09/10, at times prior thereto, field techs
performing the task of archeological digs at the White Kitchens
and Fall City Project, were subjected to the recognized hazards of
6
Dale Norton was PBSJ’s group manager for the archeology team that went to the Worksite. (Tr. 512).
excessive levels of heat. Exposure to excessive levels of heat may
result in serious heat induced illnesses which include: transient
heat fatigue, heat rash, fainting, heat cramps, heat exhaustion, and
heat stroke. Heat stroke is the most serious of these illnesses and
can result in death.
AMONG OTHER METHODS, ONE FEASIBLE AND ACCEPTABLE
ABATEMENT METHOD TO CORRECT THIS HAZARD IS TO ESTABLISH
A HEAT STRESS MANAGEMENT PROGRAM WHICH INCORPORATES
GUIDELINES FROM THE ACGIH’S THRESHOLD LIMIT VALUES AND
BIOLOGICAL EXPOSURE INDICES AND/OR THE NATIONAL INSTITUTE
FOR OCCUPATIONAL SAFETY AND HEALTH (NIOSH) DOCUMENT,
“WORKING IN HOT ENVIRONMENTS.” SUCH A PROGRAM MAY
INCLUDE, BUT IS NOT LIMITED TO:
1. ACCLIMATIZING EMPLOYEES BEGINNING WORK IN HOT
ENVIRONMENT OR THOSE RETURNING FROM ABSENT PERIODS OF
THREE OR MORE DAYS,
2. DEVELOPING A WORK/REST REGIMENT [SIC],
3. PROVIDING COOL WATER AND ENCOURAGING EMPLOYEES TO
DRINK 5 TO 7 OUNCES OF FLUID EVERY 15 TO 20 MINUTES—RATHER
THAN RELYING ON THIRST,
4. PROVIDING FOR A COOL REST AREA,
5. PROVIDING TRAINING FOR EMPLOYEES REGARDING THE HEALTH
EFFECTS ASSOCIATED WITH HEAT STRESS, SYMPTOMS OF HEAT
INDUCED ILLNESSES AND THE METHODS OF PREVENTING SUCH
ILLNESSES AND,
6. ESTABLISH A SCREENING PROGRAM TO IDENTIFY HEALTH
CONDITIONS AGGRAVATED BY EXPOSURE TO HEAT STRESS.
Complainant, in essence, argues that the Respondent failed to provide its employees a
safe work place free of recognized hazards because it failed to have an adequate heat stress
program.
Discussion
I. Whether a Condition or Activity in the Workplace Presented a Hazard
The Court finds, based upon the following additional findings of fact, that the heat in
which PBSJ’s employees were working on August 9, 2010, presented a hazard. Arlene Lamont-
Cubitt, who was involved in the inspection, is an industrial hygienist (“IH”) with a Master of
Science degree in industrial technology. She has almost ten years of IH work experience, some
of which included heat stress and illness prevention. (Tr. 298-311, 318). During her inspection,
Ms. Cubitt obtained weather data from the National Weather Service website that showed hourly
temperatures on August 9, 2010 for Pleasanton, Texas, which was within 20 miles of the
Worksite. (See Ex. J-2). On August 9, 2010 at 10:05 a.m. the temperature was 84.4º F, with 63%
humidity. At 11:05 a.m., it was 88.7º F with 52% humidity, and at 12:05 p.m., it was 91.8º F
with 45% humidity. By 3:05 p.m., it was 97.3º F with 31% humidity. The high for that day, at
4:45 p.m., was 99º F with 29% humidity. (Tr. 318-21, 361-62; Ex. J-2). These temperatures,
combined with the corresponding humidity, were in the ranges where an individual could suffer
serious physical harm or death.
Ms. Cubitt relied on a 1992 CDC/NIOSH document entitled “Working in Hot
Environments” (“NIOSH Document” or “Exhibit J-1”)7 to support her determination that the
temperature on the day of the incident constituted a hazard. (Tr. 317, 327-28). Ms. Cubitt noted
at trial that the NIOSH Document contained the following language:
A heat stroke victim’s skin is hot, usually dry, red or spotted. Body temperature is
usually 105 degrees F or higher, and the victim is mentally confused, delirious,
perhaps in convulsions, or unconscious. Unless the victim receives quick and
appropriate treatment, death can occur.
(Tr. 328). (See also Ex. J-1 at.2). The autopsy report for C.L. showed that his initial core body
temperature was 107.8 degrees F. (Tr. 328-30; Ex. C-1). Ms. Hopwood testified that when she
found C.L., his skin was “very flushed and hot” and he was unconscious. (Tr. 139).
7
At the beginning of the hearing, the court admitted Exhibits J-1 through J-12, as the parties agreed on the
admissibility of these exhibits. (Tr. 27-28). Exhibit J-1, the 1992 CDC/NIOSH document, and Exhibit J-3, the 1986
CDC/NIOSH document, appear to be identical in text, except for the first six pages of J-3. Those six pages are a
separate CDC/NIOSH document entitled “Heat Stress.” In this decision, “the NIOSH Document” will refer to
Exhibit J-1 and is the one the court relies on because it was the most current version of the NIOSH Document.
In addition to the documented hot temperatures, the following factors, while technically
symptoms of an individual having a heat stroke, support the court’s conclusion that a “hazard”
existed.8 The Court concludes that even before C.L. was found unconscious, there were signs
present which indicated C.L. was experiencing symptoms of a heat stroke. After completing his
first shovel test, C.L. complained about not feeling well. C.L was also disoriented when driving
the truck to move it to a new location as indicated by his inability to find the team’s location. At
3:00 p.m., Ms. Hopwood observed C.L. standing about twenty (20) yards from his test area and
holding grass in his hands. At that time C.L. admitted he was feeling “a bit disoriented.” At 3:30
p.m., when Ms. Hopwood was talking to C.L., his speech was not intelligible. Finally, Ms.
Hopwood admitted that after her exchange with C.L. at 3:30 p.m. she thought he was
experiencing some confusion or disorientation.
The Court’s conclusion is further supported by PBSJ’s own safety manual, which states
as follows in the section entitled “Effects of Heat”:
Heat stroke is characterized by high body temperature and unconsciousness. In
hot surroundings, dry, flushed skin without sweat should serve as a warning. The
victim may become delirious.
(Ex. J-8 at 4-9, § 4.2.8). In addition, Robert Poll, PBSJ’s Environment, Health and Safety
(“EHS”) Director, indicated that high heat is an obvious hazard during the summer months in
Texas. (Tr. 575, 587). Therefore, Respondent recognized that working in hot temperatures is a
hazard. Such recognition demonstrates that Respondent had knowledge of the hazardous
condition. Otis Elevator Co., 21 BNA OSHC 2204, 2007 CCH OSHD ¶ 32,920 (No. 03-1344,
2007).
8
Recognition of the symptoms of a heat stroke combined with hot temperatures supports a conclusion that the hot
temperatures that day constituted a hazard.
Finally, the NIOSH Document establishes industry recognition that working in hot
temperatures constitutes a hazard. See The Duriron Co., Inc., 11 BNA 1405, 1407 n.2, 1983
CCH ¶ 26,527, pp. 33,798 n.2 (No.77-2847, 1983), aff’d, 750 F.2d 28 (6th Cir. 1984). The Court
finds that Complainant has met the first element of her burden of proof in this matter.9
II. Whether PBSJ or Its Industry Recognized the Cited Hazard
The Court finds, based upon the following additional findings of fact, that PBSJ
recognized the hazard of excessive levels of heat. First, Respondent does not dispute this
element.10 See Resp’t Br. At 11. Second, Respondent’s own safety manual contains a section
entitled “Effects of Heat.” That section, while brief, nonetheless explains that employees can
protect themselves from the “harmful effects of heat” by wearing appropriate clothing and
drinking “plenty of water.” The safety manual also notes various effects of heat, including heat
cramps, heat exhaustion, and heat stroke, and sets out first aid measures to be taken. See Ex. J-8
at 4-9, §4.2.8. Third, on July 14, 2010, about one month before the incident involving C.L.,
PBSJ had another heat stress incident. On that day, a team of archeologists was doing survey
work for the same Project but at a different location. The heat index on July 14, 2010 was over
9
Respondent disagrees, contending Complainant has not shown the heat at the site was a hazard. It notes that OSHA
did not take any wet bulb globe temperature (“WBGT”) readings during the inspection or perform full-shift
sampling of employees, as dictated by the May 26, 2010 Regional Emphasis Program (“REP”) for heat illness for
Region VI. See Ex. J-14. Resp’t Br. at 5-7, 12-18. As the Complainant points out, however, C.L. was in the hospital
for several days before he died, and OSHA did not learn of the incident until after his death. OSHA also had to
schedule the inspection with PBSJ, and the inspection date, August 26, was 17 days after the incident occurred.
Therefore, WBGT readings could not have been obtained as to the conditions that existed on August 9, 2010.
Complainant contends that the conditions on August 26, 2010 would not have provided reliable information about
the temperature and humidity on August 9, 2010. (Tr. 321-23, 363). Compl’t Br. at 11, n. 4. The Court agrees with
Complainant. The Court also finds that the REP does not mandate the WBGT readings and full-shift sampling
Respondent indicates are required. See Ex. J-14 at 12, ¶ 5. The REP document contains only guidelines for the
execution of enforcement operations. Moreover, the guidelines provided by the REP are plainly for internal
application to promote efficiency and not to create an administrative straight jacket. They do not have the force and
effect of law nor do they accord important procedural or substantive rights to individuals. See Brennan v. Ace
Hardware Corp., 495 F.2d 368, 376 (8th Cir. 1974); McCullough v. Redevelopment Auth., 522 F.2d 858, 867-868 n.
27 (3d Cir. 1975) and American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 538-539. (1970). After
considering all of Respondent’s arguments in this regard, the court finds them unpersuasive. They are therefore
rejected.
10
Robert Poll, PBSJ’s EHS Director, indicated that high heat is an obvious hazard during the summer months in
Texas. (Tr. 575, 587).
104º F, and a team member, E.C.11, became nauseated and had to be taken to the hospital for
emergency medical attention. Other members of the team also had symptoms of heat stress that
day, but E.C. was the only one who required medical attention. The incident was recorded and
reported as an EHS Incident to the corporate safety department. (Tr. 147-50, 236-38, Ex. J-4). In
response to this and other reports involving field employees, Mr. Poll, PBSJ’s EHS Director, sent
Edward Gruner, a PBSJ safety manager, to observe employees in the field and address a number
of safety issues. On July 19 and 20, 2010, Mr. Gruner visited two field teams and discussed
several topics, including insect bites and repellants, sun exposure and sunscreen, and heat stress.
(Tr. 156-58, 508, 511-18, 530, 533; Ex. R-6).12
Finally, the NIOSH Document establishes industry recognition that working in hot
temperatures constitutes a hazard. See Duriron, 11 BNA OSHC 1405, 1983 CCH OSHD ¶
26,527. In view of the foregoing, the Court concludes that Complainant has met the second
element of her burden of proof.
III. Whether the Hazard Was Likely to Cause Death or Serious Physical Harm
“Serious physical harm” is the type of injury that requires hospital/doctor treatment and
could keep employees out of work for a few days or more. The determination as to what is
considered serious physical harm is made on a case-by-case basis. In making such determination
the court needs to look to the nature of the hazard against which the standard was intended to
protect. Anaconda Aluminum Co., 9 BNA OSHC 1460, 1981 CCH OSHD ¶ 25,300 (No. 13,102,
1981).
Respondent does not dispute this element. See Resp’t. Br. at 11. The Respondent’s own
safety manual recognizes the impact of heat and that exposure to hot temperatures, if untreated,
11
The initials of this employee are being used to protect her privacy. See generally Commission Rule 8, 29 C.F.R.
§2200.8 and Fed.R.Civ.P. 5.2(a).
12
At this time, neither C.L. nor C.C. was present because their first day on the job was August 9, 2010.
results in a substantial probability that death or serious physical injury could occur. (See Ex. J-8
at 4-9, § 4.2.8). Complainant has met the third element of her burden of proof.
IV. Whether a Feasible and Effective Means Existed to Eliminate
or Materially Reduce the Hazard
A. Regional Emphasis Program Guidelines.
Complainant contends that “PBSJ could have eliminated or reduced the high heat hazard
at its worksite by implementing an effective heat stress program that incorporates guidelines
provided by the ACGIH and the NIOSH.” Compl’t. Br. at 17. Respondent contends, in effect,
that neither the ACGIH guidelines nor the NIOSH Document has the force and effect of law and
cannot be used to establish the alleged violation. Resp’t. Br. at 11-12.
The Citation at issue in this case states that “one feasible and acceptable abatement
method to correct this hazard is to establish a heat stress management program which
incorporates guidelines from the ACGIH’s threshold limit values and biological exposure indices
and/or the [NIOSH] document, “Working in Hot Environments.” The Citation then describes six
specific measures to include in a heat stress management program.
The language used in the Citation is almost the verbatim language recommended be used
by compliance safety and health officers in issuing citations that involve work in hot
environments. See REP. Ex. J-14. The REP is the source of Complainant’s contention that an
effective heat stress program incorporates guidelines from ACGIH and the NIOSH Document.
The REP document contains only guidelines for the execution of enforcement operations.
Moreover, the guidelines provided by the REP are plainly for internal application to promote
efficiency. The REP does not have the force and effect of law since it was never adopted through
regulatory rule making. See Brennan v. Ace Hardware Corp., 495 F.2d 368, 376 (8th Cir. 1974);
McCullough v. Redevelopment Auth., 522 F.2d at 867-868 n. 27.
Complainant’s argument that the REP is an interpretation of one of her regulations and
entitled to deference under Auer v. Robins, 519 U.S. 452 (1997), must fail. It must fail because
no regulation has been promulgated by Complainant that addresses working in hot environments.
Thus, there is no regulation to interpret. The absence of a regulation is why the Complainant
elected to proceed in this case by charging the Respondent with a violation of the general duty
clause. Controlling case law clearly defines the burden the Complainant must carry to prove
general duty clause violations. That burden will be discussed below. Therefore, based upon the
above, any argument by Complainant that the ACGIH guidelines and the NIOSH Document
must be followed because the REP states they must be followed is rejected.
B. Applicability of the ACGIH Standards
Complainant can rely on the ACGIH standards only if: (i) the ACGIH standards have
been adopted by her as a regulation or a consensus standard; or (ii) the industry has recognized
the ACGIH standards. The ACGIH standards are entitled “2007 TLVs and BEIs, Based on the
Documentation of the Threshold Limit Values for Chemical Substances and Physical Agents &
Biological Exposure Indices.” (See Ex. J-13). The “Statement of Position” regarding TLVs and
BEIs” contained in the ACGIH standards states: (i) the ACGIH is not a standards-setting body;
(ii) the TLVs and BEIs are guidelines to be used by professional industrial hygienists and are not
designed to be used as standards; and (iii) the ACGIH TLVs and BEIs are not consensus
standards. (Ex. J-13 at v). Dr. Jeffrey Levin, Complainant’s expert witness, testified the ACGIH
TLVs are not consensus or industry standards. (Tr. 444-45). Ms. Cubitt testified that while she
used the ACGIH tables in this matter, neither the ACGIH standards nor the tables were put in
OSHA’s investigative file because the ACGIH standards are copyrighted and cannot be
reproduced without ACGIH’s permission. (Tr. 342-44). Ms. Cubitt further testified that the
ACGIH standards are not publicly available and must be purchased. (Tr. 357). No evidence was
presented that established Complainant has adopted the ACGIH standards as a regulation or a
consensus standard except to reference them in the REF. Complainant has identified no case law
which has recognized the ACGIH standards as being applicable to Respondent’s industry. The
Court finds, based upon: (i) the statements in the ACGIH standards; and (ii) the testimony of Dr.
Levin and Ms. Cubitt, that the industry does not recognize or follow the ACGIH standards. The
court concludes that the ACGIH standards may not be used in this case.
C. Applicability of the NIOSH Document.
The NIOSH standards are contained in the NIOSH Document. (See Ex. J-1). The NIOSH
Document does not contain tables with TLVs and action limits, as do the ACGIH standards.
Rather, the NIOSH Document contains general information about the hazards of working in heat.
It discusses how the body handles heat, the health problems that can result from working in heat,
and ways to prepare for such work and to reduce the potential for heat stress.
The NIOSH Document contains a section entitled “Sources of Additional Information”,
which an employer is referred to for additional information. That section references: (i) a prior
version of the ACGIH standards discussed above,13 and (ii) a 1986 NIOSH document entitled
“Criteria for a recommended standard…occupational exposure to hot environments - revised
criteria,” Publication No. 86-113 (“Criteria Document”). Complainant concedes the Criteria
13
Complainant made an argument at trial that because the ACGIH standards are referenced in the NIOSH Document
as additional sources, it was implicit that the ACGIH standards were incorporated into the NIOSH Document and
therefore enforceable. (Tr. 372-373, 394-395) The court rejects this argument. First, the ACGIH standards are
listed as additional sources of information at the end of the NIOSH Document. Second, there is no statement in the
NIOSH Document which indicates these additional sources were to be incorporated into the NIOSH Document.
Third, the additional sources are listed as they provide support for what standards were adopted in the NIOSH
Document. To the extent that information contained in the ACGIH standards were not set specifically forth in the
NIOSH Document, absent evidence to the contrary, the Court concludes that such standards were not incorporated
in the NIOSH Document by mere reference to them in the additional sources section of the NIOSH Document.
Document has not been adopted as a regulation or consensus standard. Compl’t. Br. at 16.
Complainant discusses the Criteria Document in her brief, but, as Respondent notes, it was not
offered into evidence. Compl’t. Br. at 16; Resp’t. Br. at 12. Therefore, Complainant’s discussion
of the Criteria Document will be given no weight and her attempt to apply the Criteria Document
in this case will not be accepted.14
Dr. Jeffrey Levin, Complainant’s expert, is the Occupational Health Sciences Department
Chair at the University of Texas Health Sciences Center (“University”) in Tyler, Texas. He has
been associated with the University in various capacities for twenty-three years. Dr. Levin’s
work experience includes teaching physician trainees in occupational medicine about heat stress
and making heat stress presentations to workers and supervisors. (Tr. 385-91). Dr. Levin testified
that the NIOSH Document covers any industry where there is heat exposure. Dr. Levin further
testified that the NIOSH Document is utilized by companies to implement an adequate program
to address the recognized hazard. (Tr. 392-99, 412-19, 484-86).
Unlike the ACGIH standards, the NIOSH Document is publicly available on the internet
and has been publicly available since at least 1986. See Ex. J-3, dated April 1986. The evidence
also shows that PBSJ has been aware of the NIOSH Standards since at least March 2009, when
Mr. Poll, the EHS Director, joined the company. The record establishes that, among other
documents, Mr. Poll reviewed the NIOSH standards to draft heat safety procedures in his
position with a former employer. (Tr. 575-78).
In their briefs, the parties discussed the Duriron case, where the Commission noted the
employer’s argument that the complainant was trying to enforce a prior version of the Criteria
14
In two cases the Commission has held that the Criteria Documents do not have the force and effect of law and
thus cannot be used to prove a violation. See Duriron., 11 BNA OHHC at 1407 n. 2, 1983 CCH OSHD at pp.
33,798, n.2. (No. 77-2847, 1983); Industrial Glass, 15 BNA OSHC 1594, 1603, 1992 CCH OSHD ¶ 29,655, p.
40,176 (No. 88-348, 1992).
Document, a recommended standard that was never adopted as an OSHA standard. The
Commission rejected the argument, stating that complainant used the recommended standard as
“…general evidence of the hazard and industry recognition of the hazard,” which was
permissible. Duriron, 11 BNA OSHC at 1407 n. 2, 1983 CCH OSHD at p. 33,798 n.2 (No. 77-
2847, 1983).
In Industrial Glass, the Commission rejected the complainant’s allegation that the heat
exposure limits set out in the recommended standard were exceeded and that employees were
thus exposed to the hazard of heat stress. The Commission noted that its earlier decision in
Duriron held only that the recommended standard established industry recognition of the hazard.
It also noted that the recommended standard did not have the force and effect of law and that the
complainant could not prove the alleged violation by showing the limits set out in the Criteria
Document were exceeded. Industrial Glass, 15 BNA OSHC 1594, 1603, 1992 CCH OSHD ¶
26,527 at 40,176 (No. 88-348, 1992).
The Court notes that both the Duriron and Industrial Glass cases involved the
complainant’s attempt to use the Criteria Document referenced in the “Additional Sources”
section of the NIOSH Document to prove the existence of a violation. Industrial Glass made it
clear that the complainant could not use the heat exposure limits set forth in the Criteria
Document to prove the alleged violation by showing the limits set out in that document were
exceeded. Based upon the Court’s findings set forth in this Decision, Complainant will not be
permitted to use either the ACGIH Standards or the Criteria Document to meet her burden of
proof.
The Court finds, based on: (i) the Duriron and Industrial Glass cases; (ii) Dr. Levin’s
testimony; and (iii) Mr. Poll’s use of the NIOSH Document when he developed heat safety
procedures in a prior position with another company, the industry and Respondent both
recognize the hazard of working in hot temperatures and follow the NIOSH Document criteria in
establishing an effective heat management program.
D. Evaluation of Respondent’s Heat Management Program.
Complainant acknowledges that Respondent had adopted a provision in its safety manual
addressing working in hot temperatures. See Ex. J-8. Complainant argues that, based upon the
industry’s and Respondent’s recognition of the NIOSH Document and Dr. Levin’s testimony,
Respondent’s heat stress management program was inadequate and therefore, exposed
Respondent’s employees to the hazard of working in hot temperatures, which could result in
serious physical harm or death.
The Citation’s abatement clause lists six measures that Complainant alleges are required
in a heat management program. The Court will consider each measure to determine whether it is
set out in the NIOSH Document and whether PBSJ’s safety manual sufficiently addresses the
measure.
Before proceeding to an evaluation of Respondent’s safety manual, the Court will dispose
of an argument Respondent raises which is applicable to the elements discussed below. The
Court rejects PBSJ’s suggestion that all elements of its program need not be in writing. Without
written policies to facilitate training for supervisors and employees or to provide employees with
the expectations of the Respondent, Respondent cannot have an effective heat safety program.
As evident from the Statement of Facts, employees come and go during a project and the need
for policies to be in writing is underscored so that these individuals can be provided the
necessary training.
1. Acclimatizing employees beginning work in hot environment or those returning
from absent periods of three of more days.
The NIOSH Document states the employer “should establish a program designed to
acclimatize workers” but does not specify increments or percentages. See Ex. J-1 at 5. In a
section entitled “Preparing for the Heat,” it states: (i) adjusting to heat usually takes 5 to 7 days;
(ii) body temperature, pulse rate and discomfort will be higher on the first day but will decrease
with each succeeding day; and (iii) the sweat rate will increase. It notes that gradual exposure to
heat gives the body time to adjust and that heat disorders are more likely to occur among workers
who have not been given time to adjust to working in the heat or who have been away from hot
environments. It further notes that for the worker who has not been acclimatized, or for one who
has been away “after a leisurely vacation or extended illness,” that these individuals should be
acclimatized to the hot environment. (See Ex. J-1 at 3-4).
Section 4.2.8 of Respondent’s safety manual is entitled the “Effects of Heat.” That
section, which will be referred to as PBSJ’s heat safety program, states as follows:
You can prevent harmful effects of heat by keeping your head and body covered
when in the sun by wearing light, loose fitting clothes, and drinking plenty of
water.
Heat cramps occur when a person has been sweating a great deal and the body is
not sufficiently hydrated. The victim may be seized with muscle cramps,
especially of the intestines, abdominal wall, arms or legs. Frequently, weakness
and vomiting will occur.
Heat exhaustion results from excessive loss of water and salt by the body. This
condition follows heavy sweating. Paleness, dizziness, and faintness are
symptoms of heat exhaustion. Victims often faint but usually regain
consciousness in a few minutes.
Heat stroke is characterized by high body temperature and unconsciousness. In
hot surroundings, dry, flushed skin without sweat should serve as a warning. The
victim may become delirious.
For first aid, move the victim to a cooler, shady spot and loosen clothing. Give the
victim “sips” of cool water if he or she is conscious. If the victim passes out
because of heat, take the following actions:
Carry him or her to a cool, shady place and loosen or remove pieces of
clothing.
Immerse or sprinkle the victim with cool water.
Fan the victim with a shirt or cloth.
Give the victim cool water when he or she becomes conscious.
Obtain medical assistance.
(See Ex. J-8 at 4-9)
The NIOSH Document does not specify reacclimatizing workers who have been absent
three days or more, as set out in the Citation’s abatement clause. Therefore, the specific
requirement of Complainant in this regard is not enforceable.
Respondent’s heat safety program does not discuss acclimatizing employees. PBSJ’s
heat safety program is therefore deficient; it does not provide for employees becoming
acclimated gradually to the heat, over a five to seven-day period.
Respondent maintains the actions taken on August 9, 2010 addressed acclimatization.
(Resp’t. Br. at 10, 20). Ms. Hopwood, the designated supervisor for that day, testified that she
told the team they were not going to get much done that day because they started late and had
new people, and that it “wasn’t going to be a big deal” if they “didn’t get very far.” (Tr. 187-88).
She told C.L. and C.C. because they were new and she was a new supervisor, they were going to
take it “pretty slow and easy” and “just go at whatever pace we could.” (Tr. 85). C.C. mentioned
several times that it was hot and that “she [Ms. Hopwood] was amazed at how much work it
was.” C.C. kept working, giving it her full effort, and Ms. Hopwood told her to not exert herself.
(Tr. 164-65). Ms. Hopwood also reminded C.L. and C.C. that day that it was “okay they weren’t
working as fast as everybody else.” (Tr. 188). Ms. Hopwood said that in archeology work, team
members want to feel they are “pulling their own weight” and “often try harder than they
probably should when they’re not feeling well.” (Tr. 150). She also said that while the rest of the
team averaged about fifteen (15) holes that day, C.C. dug about eight holes and C.L. dug about
two and a half holes. (Tr. 166).
Despite the foregoing, the Court concludes that PBSJ’s heat safety program is deficient.
First, there is nothing in writing about acclimatization. The Court rejects PBSJ’s suggestion that
all elements of its program need not be in writing. Second, while Ms. Hopwood’s instructions to
C.L. and C.C. that day were appropriate, she was a new supervisor and had had no additional
training before being designated supervisor that day. (Tr. 162-63, 173). Third, Ms. Hopwood was
a temporary employee with PBSJ, and while she attended the Initial Orientation and was on one
of the teams Mr. Gruner visited in July, there was no evidence that either the Initial Orientation
or Mr. Gruner’s visit covered acclimatization. (Tr. 33-34, 44, 48-49, 54-61, 66, 76-77, 156-58,
162, 202). Finally, the record shows that many of PBSJ’s archeological employees are temporary
workers and that it is not unusual for new employees to start in the middle of a project. (Tr. 55,
199, 583-84, 629). With nothing in writing about acclimatization, and with no instructions to
supervisors to address the topic with new employees, Respondent’s heat safety program is
inadequate.
2. Developing a work/rest regiment [sic].
Respondent’s heat safety program does not address having a work/rest regimen at its
worksites. The NIOSH Document states that the employer should “provide necessary work-rest
cycles” but permits the employer to establish the parameters. (Ex. J-1 at 5). The NIOSH
Document also states that “one way of reducing the potential for heat stress is to make the job
easier or lessen its duration by providing adequate rest time.” (Ex. J-1 at 4 in section entitled
“Lessening Stressful Conditions”). The NIOSH Document further states that:
Rather than be exposed to heat for extended periods of time during the course of a
job, workers should, wherever possible, be permitted to distribute the workload
evenly over the day and incorporate work-rest cycles. Work-rest cycles give the
body an opportunity to get rid of excess heat, slow down the production of
internal body heat, and provide greater blood flow to the skin.
(Ex. J-1 at 4 in subsection captioned “Number and Duration of Exposures”). Finally, the NIOSH
Document states that: “Individual work periods should not be lengthened in favor of prolonged
rest periods. Shorter but frequent work-rest cycles are the greatest benefit to the worker. (Ex. J-1
at 4 in subsection captioned “Rest Areas”).
Ms. Cubitt and Compliance Officer (“CO”) Alejandro Porter, the second OSHA inspector
involved in the inspection, both testified there was no work-rest regimen in place; rather, if an
employee asked for a break, he or she would get one. (Tr. 211-16, 333, 245-46, 344-46). Ms.
Cubitt described the break policy as “lenient.” (Tr. 346, 365). The testimony of Ms. Hopwood
shows that whenever C.L. told Ms. Hopwood he was not feeling well, she suggested he take a
break and he did so. This policy is inadequate. Ms. Hopwood indicated that the team members
want to feel they are “pulling their own weight” and may be reluctant to take breaks as often as
they should. (Tr. 150). C.C. mentioned several times to Ms. Hopwood that it was hot and that
“she was amazed at how much work it was.” She kept working, giving it her full effort, and Ms.
Hopwood told her to not exert herself. (Tr. 164-65). Mr. Poll testified that PBSJ’s archeologists
are professionals who make judgments as to when it is appropriate to take a break based on their
work activities. (Tr. 616-17). Ms. Cubitt testified that a person starting to suffer from heat illness
may not be able to determine if he or she needs a rest break. (Tr. 346).15 The Court concludes
that Respondent’s heat safety program is deficient because (i) it does not address having a work-
rest regimen; and (ii) it depends on employees asking for a break, or taking one when they think
15
The IH’s testimony is consistent with that of Dr. Levin. (Tr. 407). (See also Ex. J-1 at 2, ¶ 2 of section entitled
“Safety Problems”).
they need one, rather than having scheduled breaks.16
3. Providing cool water and encouraging employees to drink 5 to 7 ounces of
fluid every 15 to 20 minutes – rather than relying on thirst.
Respondent’s heat safety program states that harmful effects of heat can be prevented by
wearing appropriate clothing and “drinking plenty of water.” The NIOSH document states that
the employer should provide water to minimize heat stress. (Ex. J-1 at 5). It also states:
Most workers exposed to hot conditions drink less fluids than needed because of
an insufficient thirst drive. A worker … should not depend on thirst to signal
when and how much to drink. Instead, the worker should drink 5 to 7 ounces of
fluids every 15 to 20 minutes to replenish the necessary fluids in the body.
(Ex. J-1 at 4 in subsection captioned “Drinking Water”).
PBSJ provides water and ice to its teams to take to their work sites. (Tr. 203-04). Ms.
Hopwood testified that, at the Initial Orientation, one of the instructions was to be sure to “drink
lots of water.” She indicated that this type of information was a “general mentality” for field
work that was mentioned frequently. (Tr. 60-61, 166-67). CO Porter agreed PBSJ encouraged
employees to drink water but said it had no policy about drinking 5 to 7 ounces every 15 to 20
minutes. (Tr. 247, 268). Based on the record, PBSJ’s heat safety program is deficient in that it
does not encourage employees drinking 5 to 7 ounces of water every 15 to 20 minutes.
4. Providing for a cool rest area.
Respondent’s heat safety program does not address providing for cool rest areas. PBSJ
does, however, provide company vehicles with AC to employees to use as cool rest areas. (Tr.
247-48, 348). The NIOSH Document states as follows:
Providing cool rest areas in hot work environments considerably reduces the
stress of working in those environments….[A] rest area with a temperature near
16
Ms. Hopwood testified that when Mr. Gruner visited her work site in July, he discussed taking breaks more often.
(Tr. 156, 202). Mr. Gruner himself indicated that while he recommended frequent breaks, he did not discuss taking
breaks at specific intervals. (Tr. 559).
76 degrees F appears to be adequate…. The rest area should be as close to the
workplace as possible….
.
(Ex. J-1 at 4 in subsection captioned “Rest Areas”).
CO Porter and Ms. Cubitt both testified that the practice of using vehicles as cool rest
areas was adequate. (Tr. 247-48, 351-52). They stated however, that the mesquite trees and high
brush at the site where employees were working on August 9, 2010 gave little shade. They also
stated it was about a quarter of a mile to the vehicles from the site, which could take up to fifteen
(15) minutes to walk. (Tr. 224, 235-36, 347-52). Ms. Cubitt testified she was not sure a person
with heat symptoms could safely travel that far. (Tr. 352). Ms. Hopwood testified that there was
some shade at the site but not the type large trees would provide. She further testified that C.L.
took two breaks in the shade at the site.17 (Tr. 95-98, 93-95, 123-24).
Complainant asserts that access to the vehicles was a problem at the site, given how far
away they were. She also asserts that without a planned schedule for cool breaks, an employee
needing a cool break would have to walk a quarter of a mile, and there was no monitoring system
to ensure the employee made it to the vehicle. Complainant notes that due to the lack of adequate
shade at the site, having planned cool rest areas was even more important. Compl’t. Br. at 19-20.
The Court agrees. Despite the location of the vehicles, the other deficiencies in PBSJ’s heat
safety program made the provision of those vehicles as cool rest areas less effective than it could
have been. The Court finds that, because its heat safety program does not address having cool
rest areas, and because the practice for taking breaks at its sites is inadequate, Respondent’s heat
safety program is deficient.
17
The Court notes that, in light of what happened after those two breaks, they apparently were not very effective.
The morning and lunchtime breaks C.L. took in the truck, on the other hand, seemed more effective.
5. Providing training for employees regarding the health effects associated with heat
stress, symptoms of heat induced illnesses and the methods of preventing such
illnesses.
The NIOSH Document states that “[t]he key to preventing excessive heat stress is
educating the employer and worker on the hazards of working in heat and the benefits of
implementing proper controls and work practices.” (Ex. J-1 at 5 in section entitled “Awareness Is
Important”). PBSJ’s heat safety program contains brief descriptions of some of the effects of
heat and some first aid measures to take. PBSJ’s heat safety policy does not address employees
receiving training.
Ms. Hopwood testified that the Initial Orientation was the basic informal field training
that is given for any archeology project. A PBSJ field director gave the training. The Project and
conditions were discussed, i.e., it would be hot, the location was remote, and the site had thorny
brush. Other topics included the clothing to wear and using sunscreen and insect repellent.
Drinking plenty of water was addressed, including PBSJ’s providing water. Paperwork such as
tax forms and contact information was completed. The Initial Orientation took one to two hours.
Ms. Hopwood likened the presentation to a new hire orientation. She did not recall seeing the
Respondent’s heat safety program or hearing anything about heat illness.18 (Tr. 54-61, 71-74, 76-
77).
Ms. Hopwood and Mr. Gruner both testified that the training Mr. Gruner gave the
archeology teams included symptoms of overexposure to heat; specifically, Mr. Gruner said he
discussed fatigue, headaches, weakness in the knees and legs, and dizziness. (Tr. 162, 533). CO
Porter and Ms. Cubitt determined that employee training in heat-related illness was insufficient.
Some employees like Ms. Hopwood had had some training, but PBSJ provided no training to
18
Mr. Gruner testified that employees were not given the safety manual at the orientation. (Tr. 562).
C.L. and C.C., who were new employees before they were permitted to perform work at the
Worksite. The CO and Ms. Cubitt learned that PBSJ relied on the field training the employees
had received in college. (Tr. 248-49, 334-35). Mr. Poll agreed that, in his deposition, he had
stated that PBSJ considered the field training to be part of the employees’ knowledge; he
conceded, however, that no assessment was made of the field training. (Tr. 637).
The Court finds that PBSJ’s training of employees in heat-related illness was deficient.
First, while PBSJ’s heat safety program has some information about the effects of heat, the
information is very brief and insufficiently detailed. The record establishes that PBSJ’s heat
safety program was not even provided to employees at the orientation. Second, although PBSJ’s
new-hire orientation was evidently shown at Ms. Hopwood’s orientation, it contains nothing
about heat stress or other heat-related illness issues. (See Ex. J-7). Third, although Ms.
Hopwood’s orientation did cover some heat-related topics, such as the clothing to wear and
drinking plenty of water, it did not address the health effects of heat-related illnesses, or how to
prevent those illnesses. (Tr. 61-61). Even if it did, new employees who start work mid-project do
not go to an orientation; any information they receive is from their field supervisor on their first
day of work. (Tr. 55). There is no evidence that C.L. and C.C., the two new employees at the site
on August 9, 2010, received any training that day about the symptoms of heat-related illnesses
and ways to prevent such illnesses.
The Court also finds that the field training Mr. Gruner provided was deficient. His
training covered only the effects of certain symptoms of heat exposure. (Tr. 533). Further, there
were no written records of his training to specify what was covered and who was present.19 The
19
Exhibit R-6 is an e-mail Mr. Gruner sent to a superior right after his visits to the field. Exhibit R-6 provides no
more detail about his visits than his testimony. Exhibit R-4 is a letter Mr. Gruner sent to a superior about a week
after C.L.’s incident. It contains a few more details about his July visits. It does not, however, state that he provided
specific training in heat-related illnesses and how to prevent them.
Court rejects Respondent’s suggestion that undocumented training is acceptable as evidence.
Even if the Court found it acceptable, it is clear the new employees did not receive the training.
Finally, the Court finds that Ms. Hopwood’s actions at the site on August 9, 2010 show
that she was insufficiently trained as a supervisor and employee in recognizing the symptoms of
heat-related illnesses and the methods of preventing them. As Complainant notes, Dr. Levin
emphasized the importance of employee training in heat-related illnesses, symptoms and
response. He explained that PBSJ’s training inadequacy goes not to the supervisor’s ability to
diagnose heat stress illness, but rather to recognize it as a continuum of illness where certain
sentinel symptoms should be recognized as very serious and, as such, require a more emergent
action or response from a supervisor. Disorientation and confusion are the harbinger signs of
heat stroke which, on the scale of heat-related illness, is the worst case scenario because it can be
fatal. Dr. Levin testified that an appropriate heat management program would train employees to
recognize heat stress symptoms and would require employees to monitor persons that began to
exhibit symptoms of heat stress, because the illness and injury can present quickly. He further
testified that PBSJ’s heat training program, consisting of the materials as noted above, failed to
provide any guidance for employees as to the significance of high temperatures, failed to
adequately describe when to implement a heat alert and monitoring program, and failed to
educate employees on the symptoms of heat stress and the appropriate medical response. (Tr.
398-402, 405-07, 421-25, 487-88). See also Compl’t. Br. at 20.
For all of the foregoing reasons, PBSJ’s training of supervisors and employees was
deficient.
6. Establish a screening program to identify health conditions aggravated by
exposure to heat stress.
Respondent’s heat safety program does not address screening employees to identify
health conditions that may be aggravated by exposure to heat stress. The NIOSH Document
does not recommend a screening program. Therefore, Complainant cannot meet her burden of
proof that the NIOSH Document, which is recognized by the industry and the Respondent,
requires such a written provision for a heat safety program to be effective.
The above evidence of record establishes that Respondent’s heat safety program is
deficient in five areas under the NISOH Document.20 Deficiencies in the areas noted supports
the contention of Complainant that Respondent failed to provide to its employees a safe work
place free of recognized hazards by its failure to have in place a written and adequate heat stress
program. Complainant has met her burden of proving the final element of a section 5(a)(1)
violation.
Classification of Citation
The Court, from the Statement of Facts and other Findings of Fact and Conclusions of
Law, finds there existed a substantial probability that death or serious physical harm could have
resulted from the hazardous condition. Respondent’s own safety manual recognizes the impact
of heat and that exposure to hot temperatures, if untreated, results in a substantial probability that
death or serious physical injury could occur. (See Ex. J-8 at 4-9, § 4.2.8). Therefore, Citation 1,
Item 1 was properly classified as a serious violation. Citation 1, Item 1 will be AFFIRMED as a
serious violation under section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1).
Penalty
In calculating the appropriate penalty for affirmed violations, section 17(j) of the Act
requires the Commission to give “due consideration” to four criteria: (1) the size of the
20
This conclusion is supported by Dr. Levin’s testimony regarding why he believed PBSJ’s heat safety program was
inadequate. (Tr. 398-412, 421-25).
employer’s business, (2) the gravity of the violation, (3) the good faith of the employer, and (4)
the employer’s prior history of violations. 29 U.S.C. ' 666(j). Gravity is the primary
consideration and is determined by the number of employees exposed, the duration of the
exposure, the precautions taken against injury, and the likelihood of an actual injury. J.A. Jones
Constr. Co., 15 BNA OSHC 2201, 1993 CCH OSHD & 29,964 (No. 87-2059, 1993).
Complainant has proposed a penalty of $6,300.00 for the section 5(a)(1) violation. CO
Porter testified that the entire crew was exposed to the hazard of excessive heat on August 9,
- In establishing the proposed penalty, he considered: (i) the violation to have high severity
and greater probability in that the excessive heat made it more likely that a heat-related illness
could occur and that such an illness could have serious or fatal consequences; (ii) what the work
the crew was doing; (iii) the inadequate shade at the site; (iv) the fact that C.L. was allowed to go
to the truck by himself that afternoon; (v) the providing of water and a truck with AC; (vi) the
taking of breaks; and (vii) the wearing of appropriate clothing. No reduction in penalty was given
for size, due to the employer’s number of employees, and no reduction was given for good faith
because of the high gravity of the violation. A ten percent reduction for history was given in
view of the fact that the company had no history of prior serious violations. (Tr. 151-60). The
Court considers the proposed penalty appropriate, in light of all of the factors considered in
arriving at that penalty. The court will therefore assess a penalty of $6,300.00 for the violation.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ordered that:
1. Citation 1, Item 1 alleging a violation of section 5(a)(1) of the Act, 29 U.S.C. §
654(a)(1), is AFFIRMED as a SERIOUS violation and a penalty of $6,300.00 is ASSESSED.
2. Citation 1, Item 2 is DISMISSED.
3. Citation 2, Item 1 is DISMISSED.
_/s/________________________________
Date: March 15, 2012 PATRICK B. AUGUSTINE
Denver, Colorado Judge, OSHRC
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